Author Archives: Nancy

About Nancy

I'm a mommy, writer and lawyer. I've been a lawyer for over 20 years and live on a horse farm in Virginia with my Hubby and two boys. A "normal day" starts at 5 am and doesn't end until 11 pm during which I take care of farm animals, run a law practice, get a bit of writing in and spend time with the boys. When I say I have a normal life, people look at me funny. I'm not sure why.

Where did my “to do” list go, or how do I keep track of everything?

 

Lost Yet

So those of you who have read our posts over the years know I’m a mommy, writer and lawyer. My husband gets a bit put out that I don’t have “wife” in that list, but he knows I love him so he only snarls a little. It’s endearing. Really. Oh, and did I also mention we live on a 5 acre horse farm? Anyway, what all that multi-tasking means is I have a lot to do. I mean, A LOT. A “normal” to-to list across those different roles has over 70 items on it. Lawyers are an odd breed. Hal of us resist change and half of us embrace it. I’ve waffled back and forth between the high and low tech.

I’ve used a paper “to do” list. Often multiple lists would be scattered over my desk. These scraps of paper make for messy desks and the most urgent Post-it Note is always the one you look at last. The fully manual “system” didn’t last long. Then I moved to keeping that same “to do” list in a Word document. It works. Sort of. The problem with a “to do” list “system” is you track the tasks that lead to your goals but not actually your goals. The best thing about the passage of a decade is that technology has dramatically changed. There are hundreds, if not thousands, of organizational tools and goal trackers. If you lose track of your goals you can’t measure your progress. All motion is not progress.

Someone else is writing about goal setting this month so I’ll just assume you can set them with the help of our upcoming and awesome guest post. Once you know where you are heading you need to set milestones and make sure you hit them.

Here’s what I’m currently using:

https://www.Todolist.com This is a basic to do list. I use it to keep track of household tasks like laundry. The nice thing about this tool is you can share your lists with anyone. So both Matt (that’s the hubby in case you were wondering) and I can add and take items off it. This tool has greatly helped us coordinate tasks without having to track each other down. We can designate which child is responsible for what task. So Bobby usually gets loading and unloading the dishwasher and Mikey gets vacuuming the downstairs. Even better once someone is done a task that person can mark it off and see what else is left to do. I’ve found this to be a useful tool for task completion but not goal management.

Pipe Drive, https://app.pipedrive.com/pipeline. I’ve only recently started with this tool. Pipe Drive helps you keep track of “jobs” or “work” in your pipe line. A pipe line is the channel through which your prospective customers flow. Pipe Drive allows you to input an opportunity – say an open call for an anthology -, track how that opportunity moves through your process and, ultimately whether you won or lost the opportunity. Pipe Drive also allows you to attach a monetary value to the opportunity. Let’s take that anthology again. Submissions are limited to 7000 words and pay is “professional rate” which The Science Fiction and Fantasy Writers of America defines as 5 cents or more a word. Let’s assume this anthology pays 5 cents a word. The maximum value for the opportunity is $350.

By forcing you to put a price to the opportunity Pipe Drive helps you can set priorities. If there is another anthology opportunity with the same deadline paying 6 cents a word for a maximum of 6000 words or $360 and you’re short on time, which opportunity do you pursue? The one with the higher value.

You can use Pipe Drive to track your networking contacts and your conversion rates to customer or business partner. Pipe Drive also emails me a daily “to do” list based on deadlines I’ve set and my opportunities. Pipe Drive charges a really nominal monthly fee. Seriously , two cups of designer coffee gets you this tool.

My next new favorite tool is InfusionSoft – http://infusionsoft.com. This online tool does amazing things. Ever wonder how to online market to get to your sales goals? Ever wonder if your online or email marketing efforts do you any good? Ever tried managing more than one marketing campaign at once? Then you NEED InfusionSoft. It’s new Snap application lets you import business cards directly into the management tool and your phone’s contact list. It has a calendar to keep all your events and templates for certain types of email and electronic (webinars, free consultation, and a host of other) campaigns. Again, I’ve only started using this tool so my current use barely scratches the surface.

I am using InfusionSoft for my part of the EWomen Succeeding Through Doubt Fear and Crisis book launch in August. InfusionSoft will create a landing page for people to sign up for my bonus “gifts” for pre-purchasing the books. When someone signs up InfusionSoft will capture their email for my mailing list. I’ll also use the system to run the webinar and track who actually attends or doesn’t. InfusionSoft will then auto send a thank you to people who attended and follow-up with the people who missed the presentation. It will send attendees the link to the ebook. Best yet, InfusionSoft will generate the metrics to tell me if the campaign actually accomplished what I wanted it to. Everything is automated through the software! Less of my time on administrative tasks and more time spent at tasks that earn me money and bring me closer to my goals.

“What are those goals?” you ask.

Like my life I have goals for the different aspects of my life that support a greater goal. One of the reason people introduce me as “not your typical lawyer” is I remember that my calling as a lawyer is to serve my clients. So where am I headed? My boys graduated from college and standing on their own . Minimum of two books published a year. Five paid speaking opportunities a year. A law firm of 10 attorneys and 3-4 staff members. These income streams will give me the opportunity to provide pro bono assistance to low-income or otherwise disadvantaged groups in setting up their business and making sure they have the legal structure in place to succeed in their callings.

 

Reversion Clauses – or when do I get my story back?

http://www.dreamstime.com/stock-images-recycle-dollar-image26790944There are four critical provisions in your contact: the granting clause, the payment clause, the indemnification clause and the reversion clause. All four provisions work together to set out what you’ve given up (granting and indemnification clauses), what you get in return (the payment clause) and when you get your stuff back (the reversion clause). I’m only going to talk about the last one today but keep in mind that whether a reversion clause is unreasonable depends in large part on what you’ve given away and what you received for it.

What’s the issue?

Your work has value. After all, that’s why a publisher wants it. The value of the work is why you get paid. In return for letting the publisher print your work (and, hopefully from the publisher’s prospective, earn more money off it than they pay you) you give the publisher an exclusive right to use your words anyway that falls into the grant of rights. Start to see the problem?

No?

Okay, let’s look at it this way. I was recently shopping a story to some E-publishers. Before submitting, I checked out the contract terms as stated on the webpage. Buried in the mumbo-jumbo about submission guidelines and other facts was this gem: “Length of grant of publishing rights: Life of copyright.” What the heck?

A copyright lasts your life and another 70 years (in the US and UK. There some other countries which the copyright only lasts 50 years after your death, but it’s still a darned long time.). If you signed a contract with this “reversion” clause your publisher OWNS YOUR STORY for your life, the life of your kids, and a good chunk of your grandchildren’s life. The publisher can do whatever it wants with your story until it has no commercial value (i.e. is in the public domain) and, most likely, not pay you a penny more.

Now do you see the problem?

You might shake your head and say that “well, that was an e-publisher, the traditional houses aren’t like that.” Oh yes, they can be. If you let them. Publishers of all kinds are trying to grab as many of your right as possible, keep them for as long as possible and return as few of them to you as possible. This doesn’t make the publishers “evil.” It just means they are better at looking out for their businesses interests than most writers are. After all, they make money off the stories other people write. Of course, the publisher wants to keep those words for as long as possible.

“But wait!” you say. “Isn’t there something about my getting the rights back if the work goes out of print?”

Most contracts will have a provision that says something along those lines but the words really matter. Ambiguity is not your friend. Reversion clauses often have no definitions or meaningless ones. I’ll just highlight a few terms that MUST be clearly defined. If “out of print” isn’t explicitly defined the publisher can, and likely will, win on the argument that because your book is available on a “print on demand” basis, whether or not any copies are actually sold, the work isn’t “out of print” and the publisher still owns it.

What does “sales” mean? Can the publisher “sell” 1,000 free copies and meet the “Sales” threshold, if your contract even has one? Courts will read an undefined word consistent with its dictionary definition or its “plain meaning” as it is ordinarily used. If “sales” isn’t defined a court will likely rule that giving away free copies is a “sale” as the “plain meaning” of “sale” includes the “transfer of something to the ownership or use of somebody else.” In other words, no money or anything else of value has to change hands for a “sale” to occur. So, many of the new “reversion” clauses won’t let you get your book back until either the copyright expires, or you pay an attorney a lot of money to argue about your contract and rights. Either way, this is a lose-lose situation for the writer.

The “New Normal” of contracts is that if you aren’t careful you may never get your book back, or worse, you might pay the publisher far more than it every paid you to get your story back.

Hand in glove with the “new” non-reversion clauses are “buy back” provisions. Under these provisions you can “early terminate” the contract for a fee. One of the more egregious of these clauses I’ve seen recently was part of a horrible contract where the writer gave up all rights to her story (which was supposed to be put in an anthology) for 7 years for no advance – just a small royalty percentage. The publisher was going to reprint the story as a stand alone arguably under the same payment terms – 7.5% of the price sold. In order to get the story back before the 7 years expired the writer had to pay the publisher a predetermined amount. Given the sales-to-date this meant the writer had to pay the publisher more than 18 times what she received from the sale to get her rights back. Does this sound wrong to you? It should.

Also keep in mind that many established writers are making LOTS of money self-publishing or reselling their back list – books once in print with a publisher that have reverted to the writer. Publishers know this. For obvious reasons, publishers would prefer to keep the bulk of that money too. With a “life of copyright” grant the income from reissuing those older books would go to your publisher if the publisher even felt like reissuing your work.

What should you ask for in a reversion clause?

1. A reasonable term for the publisher to recoup its expenses and make a profit off you. This is going to vary from an e-book only, to paperback, to hardcover publishers. Hardcover publishers have more legitimate expenses in publishing your book than an e-book publisher does. Generally, the more rights you give a publisher the shorter you want the contract’s term to be. Three years is probably reasonable for an e-book only publisher. Seven to ten years may be reasonable for a print publisher.

2. Clear language as to when and how you get your rights back. Again, ambiguity is not your friend.

3. A definition of “out of print” that sets a sales threshold for e-book publishers, and excludes e-books (for traditional publishers), and print on demand copies and audio books for all publishers.

4. A definition of “sales” that excludes the transfer of your work for no monetary consideration and has a specific number threshold.

5. A renewal clause so the publisher can keep using your Work if it is selling and has to pay you a set amount (an additional royalty) for renewing the contract.

6. If there is a “buy-out” provision, a purchase price that takes into account the publisher’s actual costs, potential lost profits and what it paid you. The reality is if your book is selling well with Publisher X you are unlikely to want your rights back. These provisions come into play when you disagree with what your publisher is doing with your work or the work simply isn’t selling.

7. You don’t want a lengthy notice provision. If you opt to take your rights back, you should get them almost immediately upon notice. This keeps the process from being drawn out and keeps a vengeful publisher from trashing your work – bad cover, bad press – while you wait to get it back.

8. The term “Notice” needs to be defined. The Notice of your intent to take your rights back and the actual return of those rights should not be dependent on the publisher’s actions. Let’s say your reversion clause says you get your rights back 30 days after you notify the publisher: what happens if the publisher doesn’t pick up that certified letter or respond to your email? You might be stuck. “Notice” may mean “actual notice” and you may have to show that the publisher actually received your letter or email. All ambiguity does here is open the door to litigation or an extortion attempt by your publisher who now wants you to buy back not just your rights but also all the copies of your book in the warehouse. If you think I’m exaggerating check out Doranna Durgin‘s post on Writer Beware at http://accrispin.blogspot.com/2011/10/guest-blog-post-fitzhenry-and-whiteside.html

9. A provision that automatically reverts your rights if your publisher files bankruptcy, has an involuntary bankruptcy filed against it, has a receiver appointed or makes an assignment for the benefit of creditors. If any of these things happen your publisher has or is likely going out of business. You don’t want to be caught up in lengthy and expensive litigation to reclaim your rights from a Bankruptcy Trustee or receiver. The likely result if you are pulled into the bankruptcy or receivership is that you will have to buy your story back to help pay off your publisher’s creditors. Again, getting enmeshed in a legal fight is something you want to avoid happening.

What’s the solution?

While a new writer won’t often have the clout to get everything he should in a reversion clause educated writers will push the publishers to stop overreaching. You MUST know what your contract says and how it affects you. Consult with an Intellectual Property (IP) lawyer. This is a very technical and niche area of the law. Your agent likely doesn’t have the knowledge he needs to advise you. The average family law or traffic lawyer does not have the knowledge to advise you. I’ve been practicing business law for nearly 20 years and I still check with an IP lawyer. Consult with a lawyer. Yes, we charge a lot. An IP lawyer may cost you $500 an hour or more. But, the alternative is potentially giving away thousands, if not millions of dollars, over your writing career. The expense of a lawyer is worth the investment.

But the most important solution –

Don’t accept bad contracts.

Don’t accept ambiguous contracts.

Don’t accept “reversion” clauses that don’t actually give you the rights back to your work.

Here’s the secret – Shh – You don’t need traditional publishers as much as they need you.  You can self-publish. Publishers need writers to give them content. See, the power has shifted. We can still get our stories to an audience without a publisher. The publisher can’t operate without writers. Don’t get me wrong. I want to be traditionally published. I understand the finances that drive Publishers (e- and traditional) to ask for the provisions they do. But that doesn’t mean I have to accept all proposed terms.

Sometimes walking away is the best thing you can do for yourself, your story and your career.

The bottom line?

Know when and how you get your rights back. If this isn’t clear, hire an attorney to help you understand. If the contact still isn’t clear or acceptable renegotiate it. If you can’t get reasonable terms you may want to walk away.

Disclaimer:

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. No attorney-client relationship has been created. Legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer if you want professional advice.

Five Facts Every Business Owner Needs To Know About The Law

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Welcome to Legal Month at the Fictorians!

Writers are business people. We own our enterprises and are responsible for them. While we often focus on the craft of writing on this site we felt a walk on the business side was necessary. We’re going to spend much of March looking at issues writers, and all business owners in fact, need to know about the law such as taxes, necessary record keeping, agents, contracts, indemnification and reversion clauses, copyright, creating your business, creating publishing company, and much more. An important note about this month: We’re not providing legal advice and if you have specific questions about the law and how it applies to your situation, please contact an attorney where you live.

Five facts about the law every business owner needs to know:

FACT 1 – Anyone can sue you. 

Legal disputes are part of the cost of doing business. For the fiscal year ending September 20, 2012 (the most recent one I could find statistics on), the United States Federal Courts had 278,442 new civil law suits filed. http://www.uscourts.gov/Statistics/JudicialBusiness/2012.aspx While this number represents a decrease in filings from the previous year it’s still a respectable number. Keep in mind too that this figure doesn’t take into account new cases filed in a state court. While there are rules against frivolous or harassing law suits it is often difficult to show that any specific case was completely baseless and the other side should have known that their claim wasn’t legitimate when they filed.

Litigation is VERY expensive. A bit of prevention (and expense) can save you thousands on the back-end. A business lawyer’s job is to anticipate what could go wrong and try to give you the best possible protection in case the worst happens. Nothing is perfect though, and the more successful you become the bigger the target on your back. Which brings me to my second point…

FACT 2 – Becoming a Corporation is Inexpensive and Provides You with a Level of Protection.

You are almost always better off operating under a corporate umbrella rather than being a partnership or a sole proprietor. Corporations are considered separate “people” from their owners under American law. As a general rule a person suing a company can only collect their judgment from the company’s asset, not the owners’. Incorporating also allows you to keep profitable ventures separate from more experimental ones or ones losing money. It is fairly common practice for a real estate developer, as an example, to form a new company for every project that way if project X fails the business does not have to use its revenue from successful venture Y to pay off X’s debts. The owners merely pay off as much of X’s debts as they can with whatever assets X has left without jeopardizing their or that of their other ventures’ financial health. Is it necessary for a writer to have a new company for every book? Not generally. Writing is not generally considered a high risk enterprise.

Another advantage to operating through a company is the ability to give yourself a salary and issue yourself a W-2. Being a W-2 employee has several tax advantages. It also means you qualify as an employee and not self-employed when the time comes for you to get a loan, whether business or personal.

FACT 3 – You Are Responsible For The People You Hire. 

Employees are a mixed blessing. They are fabulous because they let you do the things you love doing about your business – like writing – and delegate the things you like least or take too much time away from your main focus – for example, maintaining a website or social media presence. The also present their own special set of legal challenges. But I’m to not going dwell too long on theses since that’s a several post long discussions. Let me point out two though.

Your employees are part of your public face. Their acting badly reflects on you. Choose your agents, publicists, editors, lawyers, accountants, and employees with care. In this highly visible world a stray (or not so stray) comment on a social media site can bring down an empire. After all, it only took the Doctor six words to bring down an administration.

Ensure you classify the people who work for or with you properly. While it might be tempting to classify your helpers as independent contractors spend time with a lawyer to make sure they qualify under the IRS guidelines. Understand that all exempt (from United States Federal Overtime requirements) employees are salaried, not all salaried employees are exempt. There are also state laws governing when an employee must be paid overtime. Again this is a classification issue and some up front time with a lawyer can save your business.

FACT 4 – You Will Be Deemed to Know the Law and What Your Contracts Say Even if You Don’t. 

Ignorance of the law is not a defense. Don’t sign any document you haven’t read. If litigation results a court will deem you to have known and understood a contract’s terms. Lots of nasty upsets can be avoided simply by reading a contract. Know what you’ve agreed to. If you don’t understand, I mean really understand, what you are being asked to sign, DON”T SIGN IT and seek legal advice first. Renegotiate the unacceptable terms. Sometimes walking away from a bad deal is the best you can do.

FACT 5 – Words Matter.

This last one shouldn’t surprise you. After all, who knows that words matter than a writer? Fellow Superstar Attendee Mignon Fogerty aka Grammar Girl once asked me if it was true that lawyers litigated over the placement of a comma. The answer is “sometimes” as comma placement can change a sentence’s meaning. I’ve litigated the meaning of “unique”, and “exclusive” and, yes, exactly what a clause modified (i.e. did the comma mean anything?).

Do not accept a word you do not understand. Contracts, especially older ones, use the word “witnesseth.” When I’ve struck the word and asked the other attorney what the term meant…well, let’s just say I manage to get it struck most of the time. Why? Because it’s unnecessary. “Witnesseth” means “to take notice of” rather than to “witness” a document. Since the word comes before the signature lines it’s a bit obvious that the person signing has “noticed” the document. We’re going to have posts focusing on specific words in indemnification and reversion clauses so I won’t belabor the issue about the meaning of words here.

Keeping these principles in mind won’t guarantee that you’ll never have a legal dispute. But they just might let you know when to seek professional help from lawyers or tax professionals.

I hope you enjoy the upcoming month, and come back for more great information.

Disclaimer:

 The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney
to obtain advice with respect to any particular issue or problem. No attorney-client relationship has been created. Legal information is not the same as legal advice — the application of law to an individual’s specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

How to Build a Murderer

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Horror and mayhem are all about the villain. Your murderer has to be as real as and smarter than your hero, whether your hero is a street smart cop, a yoga teacher framed for the killing or a busy body old lady. And really, why would anyone invite Ms. Jane Marple (Agatha Christie’s heroine) or Jessica Fletcher (Murder She Wrote) to a party? People are falling down dead all around them. All the time.

But I digress.

The challenge in writing a murderer is to push past your own personal revulsion at what the character does and see why he does it.

Why do we love Professor James Moriarty as much as Sherlock Holmes?

Because Moriarty is a whole and terribly wounded person. He has wants, needs and his own (internal) code of conduct. He is at least as clever as, if not more clever than, Sherlock. Moriarty is who Sherlock could have been if he’d been nudged down a different path.

My current work in progress is an urban fantasy thriller. So how did I create a murderer? I did what any writer would do. Research.

I’m probably on the NSA’s watch list based on the serial killer searches I ran from my computer. I read lots of thrillers, murder mysteries, and true crime novels. I took notes. I read craft books including James N. Frey’s How to Write a Damned Good Mystery: A Practical Step-by-Step Guide from Inspiration to Finished Manuscript. I highly recommend Frey’s book to anyone writing in this genre. mystery cover

My research confirmed a lot of what I suspected. What makes a good murderer? According to Frey:

“1. Our murderer will be evil.” Frey defines this as someone who is acting out of his or her best interests. I’ll add that this drive toward self-satisfaction will be overwhelming. Our killer doesn’t care who he hurts as long as he gets his selfish desires.

“2. Our murder will not appear to be evil.” Sadly, real life bears this principle out. Ted Bundy, John Wayne Gacy, and Aileen Wuornos all looked respectable. Bundy worked a crisis hotline. The idea of evil lurking just under the skin is central to horror stories. Also, if the bad guy is the obvious suspect you fail to create the tension needed to maintain a horror, mystery or thriller.

“3. Our murderer will be clever and resourceful.” Sherlock would not spend his life trying to catch Moriarty if he wasn’t clever or resourceful. The near miss, the hero arriving moments too late, creates tension and makes the chase all that more thrilling. We read thrillers and murder mysteries for the chase and inevitable capture.

“4. Our murderer is wounded.” A deep psychological wound drives our murderer. After all, he’s taken a step (or several dozen) past the line. He’s gone from thinking of ending someone’s life to actually doing it. Like Jack the Ripper, he may take his crime beyond mere murder and mutilate his victims. He’s shattered the veneer of civilization we all live with, and something outside the normal has made him do it. He (often) justifies killing because of this emotional wound. This is probably the step that most “failed” (defined as stories that didn’t capture my attention) stories miss. Without this driving force shaping your murderer he will feel like a two-dimensional character or a cliché.

“5. Our murderer is afraid.” Even with the thrill of the kill the murderer must worry about apprehension. His fear mixes with an intensifies his other emotions. Your character needs to feel fear whether fear of discovery, losing what he’s built or something else. Fear is a defining human trait. We all fear something. Often many somethings. Fear of failure. Fear of being not good enough. Fear of being discovered as a “fraud.” Without fear a character is a sketch.

Lots of craft books spend time on getting you to flesh out your characters. Your killer should be the most fully realized. You need to know his history and all his actions even though most will never make it into the story – only the results. The psychology of a killer is in many ways more important than his physiology. Merely hitting the high points of psychopathy – like most serial killers in their youth have tortured or killed animals – isn’t enough. Merely hating women isn’t enough. Something in the killer’s path has pushed him over the line from malcontent to murderer.

Did he accidentally kill someone in a fit of temper and “get away” with it but now he has to kill again to protect the life he’s built since (the example Frey uses in his book)? Did he like the thrill? What is he afraid of?

Simply put, if you don’t know how your killer got to the point we find him in this story he’s not going to be very compelling.

Frey spends about 20 pages on developing your murderer and becoming intimate with him. Obviously, I can’t do justice to Frey’s advice in the space of a blog post. But let me leave you with this:

Murderers are three-dimensional characters. They are clever, not just lucky. They are “evil” in the sense that their desires are the most important thing in the world to them. They are highly damaged people. Unless you know what drives your killer (his wound) you can’t know how he kills and won’t keep your reader engaged.

WEB_N Greene-1 You can find me at my blog. Twitter, and Facebook .