Michael J. McDonagh

An established writer who recently went to work becoming an author, trying valiantly to make someone give a damn and chronicling the process.

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Writer’s Guide to Copyright and Trademark Infringement (Episode 2: Permissive Use and Obscuring brands)

Recap: So far, we’ve covered the fact that brands, characters, songs, poems, stories (in other words, pretty much everything) can be covered by intellectual property protections (in our context it’s usually copyright or trademark protection). That’s the bad news.

The good news is: the fact that something is protected doesn’t mean you can’t mention it or quote it or acknowledge it. You can still use it if you get permission, avoid the problem altogether if you obscure the brand (both of which I’ll cover today). Te fair use exception will be tough to cover in one post, let alone mixing in other ways to avoid problems, so I’m putting that off until next week.

If you take anything from this, understand that the three word responses you see to posts asking, “Can I do this?” on writer message boards probably aren’t sage tidbits of seasoned wisdom (unless they say, “this is complicated” or “be really careful”). My attempt to provide a broad, over-generalized summary of just enough basics to give you an idea how to stay out of trouble is going to take several blog posts.

Let’s start with the easy one: Permission.

It sounds goofy, but it’s not daffy to think you can get permission to use trademarked names or portions of copyrighted materials. [It’s funny because Goofy and Daffy are trademarked by a certain corporation that is closely associated with rodents (their litigious legal department) that also happens to use a rodent as its mascot]. If you think it’s important to your narrative to have all the kids drinking Sundrop soda and eating Little Debbie’s snack cakes, and you portray both of those items in a reasonably favorable light, they may be more than happy to let you. They will probably require that you use an acknowledgement like: “Sundrop® is a registered trademark of Dr Pepper/Seven Up, Inc. © 2013 All Rights Reserved, and is used with the express permission of the rights-holder” or something along those lines.

As I explained in the prior post, IP rights-holders have a legitimate concern about their material being used without permission. If they don’t police it, they can lose the ability to enforce it later. If the use is reasonably limited and you acknowledge the fact that your use is with permission, they may be more than happy to give it to you. The extreme example of this is product placement, where the trademark rights-holder actually pays to have the mark displayed (usually in a movie or television show). It’s a form of advertising – everyone sees Brad Pitt drink Sundrop and then start making out with Angelina Jolie (or vice verse) and suddenly you notice Sundrop in the beverage aisle the next time you’re shopping.

You aren’t likely to get payola for putting Sundrop in your book. You’re probably not even going to get a free Sundrop sun visor. But you may well be able to get permission to use the name by e-mailing their legal department (or even starting with the “contact us” address on the webpage). Bottom line is, it never hurts to ask.

The opposite end of the spectrum is occupied by said rat-infested corporation, which is completely over-the-top paranoid about its intellectual property portfolio. On his recent acquisition, Darth Vader was rumored to comment, “Whoa, dudes, you really need to chill.” I can actually call Disney out by name, for a slew of reasons including the fact that I am writing educational, non-fictional materials for no financial gain. I am voicing opinions and, to the extent I am mixing opinion and fact (the bastards [opinion] threaten to sue daycares for painting Disney characters on their walls [fact]), it is clear where I am doing so.

The fact is, even when writers screw up, they aren’t usually sued for it. The result is usually a letter from the rights-holder’s counsel informing you of the violation. If they aren’t dicks about it, they’ll just ask you to stop. If they are super nice about it, they will even let you sell the merchandise you already have on hand, as long as you don’t print any more with the offending use in or on it. If they are the most super-chill legal department in the universe, they may even send you the nicest cease and desist letter ever:http://brokenpianoforpresident.files.wordpress.com/2012/07/jd-letter-entire-big1.jpg

But you can’t count on getting that letter, nor can you plan your cover art budget around being funded by a whiskey company’s legal department. The odds of being told to destroy your books are exponentially higher than that.

In that example, the name itself wasn’t used, but the cover looked just like a Jack Daniel’s bottle, which is the company’s trade dress. When it comes to cover art, you want to avoid anything that could reasonably confuse someone as to the “source, sponsorship or approval” of your book. That is an area where the mark holders have little room to give, and you will very likely be required to destroy anything that was printed.

[Just by way of full disclosure, one of my close friends is an executive with Brown Forman, the parent company that owns Jack Daniel’s Properties, Inc., which owns those brands. That is not, however, why I think the C&D letter is awesome.]

Next, almost as easy: Obscure the brand.

Let’s face it, if your narrative is so tied to a specific thought someone else had that you can’t write around it, you probably have problems with the story that go beyond intellectual property rights. Nobody wants to read an Ode to Little Debbie. No matter how much you hate WalMart, your WalMart-bashing magnum opus is probably only going to be mildly interesting to the people you were in line with the day of the incident in question. If you named your character Katniss Evergreen years before The Hunger Games showed up in print, but are just now getting around to revising your old novel, the best news I can give you is this:

Get Over It.

Kill your darlings. Change your names. Nothing that specific should impact your narrative arc anyway. This is one of those happy places where my experience practicing law for 20 years and my experience writing and editing fiction both scream the exact same piece of advice. If your hatred of WalMart is such that you can’t carry a story through by calling your behemoth retail villain MegaMart, SuperMart, WeRTehSukMart, or AboutAMillionFuckingOtherThingsMart, the problem with the narrative is not the Walton Family’s intellectual property portfolio.

Most of the time someone can’t just write around this problem, it’s because (whether she wants to admit it or not) the product is either fanfic or a hatchet job. Passing mentions aside (because those are what fair use will boil down to), no brand, song, poem, or book should be so integral to your story that you can’t just change it. If someone finds that she can’t, what that really means is that her story is based too much on another person’s intellectual property to stand on its own merit.

There’s a word for that: Infringement.

I am not saying you necessarily have to write around every mention of a brand or research the USPTO archives every time you refer to a product to see if the name is trademarked. What I’m saying is that you need to know you can. If you got that cease and desist letter, or a directive from an agent or editor to make that change, it should be a question of search and replace, and not a major revision to your story line.

The next post will cover whether you really need to omit all references to specific songs or cars or beer or whisky (spoiler alert, you don’t). That said, as long as you could if you needed to, you should be in relatively good shape.

Writer’s Guide to Copyright and Trademark Infringement (Episode 1: A general overview)

Rocko and Chainsaw jump into the truck. As Rocko turns the key, the stereo blares… um, Twinkle Twinkle Little Star? That one’s gotta be public domain, right?

We’re supposed to write what we know, and a lot of us (myself included) write about everyday life. Well, a much cooler version of everyday life, but, still, life here in Anytown USA. If you write about life in the Antheria Quadrant or a magical realm, you can probably skip this post (unless you have a guy named Darth who has a Death Star in your Quadrant or your magical realm is called Middle Earth). Even then, this post isn’t about plagiarism,

Intellectual Property and Writing is a complicated subject. Actually, it’s a whole bunch of complicated overlapping, interlocking subjects. The kind of subjects that people who went to law school, passed the bar exam, and practiced law in this area for a decade or two still go to continuing education classes on every year. I wish I could just fire off a douchey top ten list that told you how to avoid trouble, but it isn’t that easy. I plan to provide just such a list in a few days, but trust me when I say a list, standing alone, will do nearly as much harm as good. It’s really worth taking a few minutes to understand a little bit about the basic framework you’re going to be operating in.

“We’re Living in a Material World”

One of the issues with writing about life in a consumer society (which, writing satire, is one of the things I write about) is the fact that our society loves to brand the things we consume. For every person who says, “Meet me at that independent coffee shop on 36th Street,” a couple hundred meet at Starbucks®. We drink Coke® or Pepsi®. We like Big Macs® and throw Frisbees®, not flying discs. And those are just trademarks. The little ® means they are registered trademarks, and have been registered with the U.S. Patent and Trademark Office.

Then we have copyrighted materials. Your protagonist may want to start singing Ding Dong the Witch is Dead the minute his wife leaves the house, but can he? When she wants to read love poetry from the balcony, can it be Echo© by Carol Ann Duffy or do you have to become a poet, thereby forcing her (in my case) to read insipid poetry at best? If your character was a child of the 1970s and a science fiction geek, can her favorite movie still be Star Wars (which is both a ® and a ©)? The little © (or, in the case of sound recordings, the little ℗) says the author has the rights to the material and you’ve been warned.

So what the hell? We obviously can’t have our characters listen to Twinkle Twinkle when it needs to be Born to be Wild, and all of those little ©s ®s and ℗s make our prose look like a list of side effects from a treatment for erectile dysfunction. And, unless my books a huge bestseller, nobodys even going to bother worrying about infringement in my stuff anyway, right?

This is the most important thing I’m going to say in this post. Are you ready? Ok, here goes: WRONG.

The unfortunate fact is, once someone has intellectual property protection (whether in the form of patent, copyright, or trademark), he or she can lose that protection by allowing the protected property to become “public domain.” The classic example of this is the thing you use on the fly of your pants (and the door to your tent, if you camp, and the way you close up your windbreaker). When enough people generically refer to anything with linking rows of interlocking teeth as a zipper (without permission or acknowledgment of the mark), it becomes “genericised” and the owner loses the mark. This happened with aspirin in the US, to Friedrich Bayer & Co. –the same company that had the balls to trademark heroin. They lost that one the same way. Owners of copyrighted materials do not face the same kind of pressure to protect their works, but can still lose the ability to sue under broader doctrines (estoppel, latches, and a bunch of other Latin words I don’t have time to go into).

Because of that copyright and trademark holders have a legitimate reason to make sure we dont improperly use their material, even if we’re not making a dime doing it.

That does not, however, mean we can’t use the materials at all. Not even close. What it means is we can only use the materials either (a) with permission from the copyright/trademark owner or (b) under the fair use exception (or another exception, but those are rarely as important in this context).

Yay, hes finally talking about fair use. I should have skipped all the boring shit. I found the part with the answer!

Sorry, but no. I’m going to give you my first ever Michael J. McDonagh Blog News Update: In an astonishing coincidence, since I was planning to write this today, anyway, this happens to be the day the biggest fair use decision of the decade, possibly my lifetime, was handed down. In The Authors Guild, Inc. v. Google, Inc., the court sided against the authors (boo) and in favor of Google (boo).

Except, with respect to this post, we kinda wanted that, because at the moment we’re wondering how far we can push the bounds of using other peoples stuff. (Yay?) If you’re Stephen King or Dan Brown you’re probably bummed (and bored as shit, if you’re reading my blog, but please, please start posting comments). For me and you, not so much. Plus it’s a District Court decision on summary judgment, it will be appealed, I’d be surprised if it didnt  get reversed on appeal and there will be an attempt at an appeal to the Supreme Court (where I’d say the odds of the original ruling being affirmed go down even more).

That’s not really the important part. The important part for this post is to understand that both sides spent hundreds of thousands (Plaintiffs) or millions (Google) of dollars hashing through the question of fair use. Until today, nobody was certain how the judge was going to decide. I think there is at least a 50% chance the judge will be reversed on appeal. It took eight years to get to this point, and, as the judge put it, “The sole issue now before the Court is whether Google’s use of the copyrighted works is ‘fair use’ under the copyright laws.”

In other words, the important thing to understand is that “fair use” can be a really fucking complex topic. Or, as the Google Court said it, “The determination of fair use is an open-ended and context-sensitive inquiry, thus the fair use doctrine calls for “case-by-case analysis[.]” That, by the way, is how federal judges say, “really fucking complex topic.”


Tomorrow I’ll get into the four-part fair use test and how to avoid infringement, I promise. But I think jumping right to that would be a huge disservice to the people who read my blog. Since you’re presumably fellow writers, I can’t do that (even though douchey top ten lists drive traffic like no other).

Aside from “this is a really fucking complex topic,” there are two points I want to hammer home from a writer’s perspective:

1)    Don’t let The Man keep you down. Just write the damn book. If everybody is reading The Hours© at a Starbucks® and listening to Dylan sing Like a Rolling Stone, so be it. (And, yes, the registration marks are here purely for comedic effect). At least for the first draft, this isn’t anything to even think about. You shouldn’t have all those adverbs, either, but now’s not the time to worry about them. This is editing stuff, not drafting stuff. It shouldn’t even be on your mind until you’re done writing (and probably revising, since we never know what’s getting cut there until we’re done with surgery).

2)    You need to be about 1,000 times more worried about this if you’re self-publishing, because traditional publishers deal with it all the time. If you’re going the traditional route, you’re probably better off not worrying about it at all (if the changes take anything away from your narrative), and being flexible when you get your editing letter. This is mostly a minefield for people who want to self publish. A cease and desist letter that just tells you to ‘cut it out’ becomes a real problem if you’re sitting on a couple of boxes of POD paperbacks you just shelled out for.

Tomorrow, I’ll explain the four part test for fair use, it’s applicability in both copyright and trademark matters and maybe even provide a douchey top ten list of things you should know. 

I Have no Talent as a Writer (and Neither do You)

“There is no excuse for anyone to write fiction for public consumption unless he has been called to do so by the presence of a gift.”

– Flannery O’Connor

Talent is a beautiful thing. Talent is the concept that God (or the gods, in the case of the ancient Greeks who loved to talk about this stuff, or the cosmos for my agnostic friends) has imbued our flawed, frail mortal existence with a divine spark of greatness. It’s breathtaking.

It is also complete bullshit.

I’m not saying talent doesn’t matter, nor am I claiming talent is not important. I am going one step further. I am saying that talent resides in an imaginary world with leprechauns and gods who drive chariots across the sky, hauling the sun around like a boat trailer. Talent is not a thing.

Opportunity is a thing. Experience is a thing. Practice is a thing (and the right kind of practice appears to be the biggest thing of all). In certain endeavors, your body’s size and shape are things that matter – Michael Phelps’ clown-shoe sized feet certainly don’t hurt when it comes to swimming, and no matter how much or how well my daughter practices, she will never be an elite NFL Line(wo)man at 5’2 and about 100 pounds. But the concept that some people, in our case writers, have an innate ability that makes them superior to us (or that we have an innate ability that gives us some kind of leg up) is just flatly and empirically wrong.

This is not just my half-assed opinion. When addressing this issue with other writers (and surprised to find myself in the minority in an argument on this subject), my half-assed opinion was that talent is a minor element of success, far less important than diligently honing the skills required to write well.

I was wrong. It’s less important than that. Being a data-driven person, I went looking for studies evaluating the role of talent in controlled environments. There have been dozens of studies, and they all come to one of two conclusions:

(1)   The existence of talent cannot be proven to be a significant factor in reaching world-class performance levels in any activity (music, sports, writing, art); or

(2)   There is enough data to infer that the thing we conceptualize as “talent” does not exist.

So, if you were expecting to rely on your God-given gift to become a successful writer, you are shit out of luck.


Because we were having such a heated debate about this subject, I didn’t realize I was researching a question that has basically been put to bed in the scientific community. Geoffrey Colvin has a good rundown in his mass market book Talent Is Overrated: What Really Separates World-Class Performers from Everybody Else. As far as free, objective resources are concerned, the study: Innate Talents: Reality Or Myth  published in Behavioural and Brain Sciences 21 399-442 #128 (available from Cambridge University Press) is awesome and free.  http://cogprints.org/656/1/innate.htm

Interesting studies have also been conducted on chess Grand Masters, dating back to the 1940s. They are consistently found to be of average intelligence and have average cognitive skills. They also have average memory ability, except when it comes to one thing. You guessed it, chess. After a certain amount (five or more years) of intensive chess-play, they begin seeing the board as one organic whole, rather than thirty-two separate pieces. Using magnetoencephalography (seriously, I didn’t make that up, it’s a machine that measures the electromagnetic signals in your brain), scientists have found that chess players get to a point that they access frontal and parietal cortices of the brain when they look at the board. They are not actually analyzing the move their opponent made, they are remembering past games. Lower-ranked players, on the other hand, are accessing their medial temporal lobes. When they look at a move, they are encoding new information about the way the board changed.

I’m going to generalize and oversimplify a tad here (so check out the book or click on the link for more data or search “precocity” and “talent” in Google Scholar). So far, researchers haven’t conclusively ruled out the existence of innate biological traits that may aid in performing at high levels in things like art, accounting, writing, tennis chess, gymnastics. or any other endeavor.They have, however, determined that there is no relationship between people identified early on as potentially having “talent” and long-term success in any of those activities. If you were deemed mediocre musically year 1 and another student was deemed to be musically adept and advanced year 1, it’s a coin flip to see which student would be better year 6. Starting at the opposite end, looking at the “world-class” participants in those activities and working back to where they started, the researchers have also ruled out any factors happening before the first several years of dedicated practice in any activity as being predictive of the subjects’ ultimate success.


Eli and Peyton Manning are “talented” football players, having each won a Superbowl, each having jobs as starting quarterbacks in the NFL, etc. The odds of two sons from the same family having the top starting position on two teams in the NFL are mind-bogglingly low. But their dad is Archie Manning (a legend in the game), they grew up around it, it’s what they’ve known and practiced and done and absorbed since before they can remember.

Now let’s pretend they were my sons. Guess who would have no “talent” for football. Same dudes. I can almost guarantee we’d still be hearing from college coaches, but they’d be the college debate coaches we’re hearing from about my daughters. My daughters are “talented” debaters. Not coincidentally, I went through college on a full-ride debate scholarship, met their mother at the national speech championships, and she and I both coached college speech and debate for a few years. Drop Peyton and Eli into my household, and you would probably have two of the best debaters in the country and a perfect score on the English portion of the ACT, but neither one would have a lick of “talent” when it came to football.

There is a spinoff from that early exposure thing, called the multiplier effect. Here’s how it works: Little Girl A happens to bowl a really good game when she’s 5. Everybody says “ooh, aah, look at that,” and she gets some ice cream. Then she gets a bowling ball for Christmas and keeps bowling to get more ice cream until she is old enough to bowl in a tournament where, having been doing it regularly for a couple of years, she crushes everybody. Yea Little Girl A! So she keeps bowling and hanging out with people who bowl, and taking lessons and competing against higher level opponents until – wow! She’s one of the best bowlers in the country. Then she fires her old coach and has three new coaches, working on foot placement and stroke and other bowling stuff (because I’m in way over my head here, I’ve bowled about five times in my life). So she ends up the grand champion of bowling or whatever and drives a Cadillac with longhorn steer horns across the hood and a giant diamond belt-buckle that says she’s the best bowler in the world! Because she is! But she doesn’t have one bit more “talent” for bowling than I do. She’s just spent 50,000 more hours deliberately practicing how to bowl than I have.

That’s what environment contributes to “talent.” More than anything, the mistaken belief that you have it. Or, worse, the mistaken belief that you don’t, but someone else does.

Which means there’s some good news and some bad news:

The bad news is, you’re not a talented writer. the good news is, nobody else is, either.

In either event, if the numbers in the English study are roughly accurate, even if you are at zero, with no background or supportive environment or anything else, start now and you’re probably going to catch up to the people who mistakenly believe they have talent and have also been working on it in about six years.

Not coincidently, that six year finding nearly mirrors Malcolm Gladwell’s 10,000 hours conclusion, though coming at it from an entirely different angle. It also fits squarely in the realm of the amount of time invested by chess Grand Masters. Take off some rounding errors, and you’re right at those “first million words” that people generally agree are “practice” before writers become good writers. [Note: The original attribution of that number is disputed, but I can assure you that Stephen King was not the first or fourteenth person to use it, despite it often being attributed to him].

So you give me a break about this “talent” crap. I don’t want to hear about it if you believe you have talent and therefore your words are lyrical gold that flows onto the page. I don’t want to hear about it if you think you lack talent and therefore cannot succeed. Write seriously for six years/ten thousand hours/one million words and get back to me.

I genuinely believe that the only real “talent” an author may possess would be the “talent” to see her work objectively and critically.  To identify specific, precise skills that need to be honed and work on them. To evaluate criticism effectively (which sometimes means rejecting it, after earnest evaluation) but always looking for the thought in that criticism that can be employed to improve. Which is to say, the only ”talent” one can have in the field of writing is a willingness to practice hard and well and for a long time.


If he was all that “talented,” why does he have to change every single fucking sentence?


An update on the Scammers Post and a Casestudy in Shadiness

I said in the scammers post that there were a thousand ways shady agents rip people off, but a new shady agency showed up on my radar (a couple of times in a couple of ways) and I thought I’d pass on what I learned. More particularly, I want to use this agency as a case study in how to look at an agency.

This one particularly bothers me because the agency is truly “shady,” meaning they seem to have a few legitimate sales mixed in with their business practices that rip people off. This agency scares the shit out of me.

Shady Practice No. 1: I’ve already warned you about this one – they have a for-profit editing service as part of their agency. 

Shady Practice No. 2: This one is new to me – they have a $2,500 minimum commission. This is a LOT worse than it sounds. Their justification for it is even worse. Per their participation on legitimate writers’ message boards (which they run around like hotshot fire crews, trying to justify their practices), they charge that minimum because so many new novelists get low advances that they need to have a minimum to justify the six months it may take to place a book with a publisher. At first glance, this may seem reasonable. But let me rephrase that for them. Their justification is essentially:

If we can’t sell books for enough money, which happens to us a lot, we need to make sure we get ours before the author sees a dime. We aren’t willing to wait for royalties to come in to get it from our percentage, either.

Shady as fuck, right? That just scratches the surface. For starters, they might as well be saying, “We can’t make a profit using the normal commission structure that every legitimate agency on the planet uses.”

Since they are offering for-hire editing services, they clearly aren’t adverse to conflicts of interest. This scheme sets up a couple of other conflicts that just make me sick. First, let’s do a little math. If they manage to sell your book for a $2,500 advance, they get to keep $2,500. If they sell your book for $10,000, they get to keep $2,500. If they sell your book for $15,000, they get to keep $2,500. If they sell your book for $17,000, they get an extra fifty bucks. So, unless you have a book that is likely to sell for a lot more than the average first-time advance, these shady-ass motherfuckers have no motivation to try to sell your book for a dime over $2,500.

Also, the best route for a first-time author may involve a low advance but decent support from a legitimate publisher who is willing to spend some money promoting the book. Like, for example, the recently departed Tom freaking Clancy and his debut novel The Hunt for Red October. Since this agency doesn’t give a shit about its authors in the long run (or the medium run, or even after the very first day of the short run), those offers are just rejected without response. How do I know this? Because small and medium-sized publishers also participate on writers’ forums, and they say things like “I made an offer on manuscript X and they just responded that the offer was insulting and not worth considering, now I understand why.”

We aren’t done yet:

Shady Practice No. 3: This is old news, but still a nice little window into their shady as fuck behavior. There are all sorts of legitimate sources on the internet writers can use to learn about agents. Databases are great: AgentQuery, QueryTracker, Predators & Editors, and WriterBeware are all excellent resources with unbiased information (they drive traffic to their sites by having good information, so their motivation is to provide just that). Obviously, people who are trying to rip you off are not big fans of accurate information, which tends to inform people that they are shady as fuck.

So some genius came up with the idea of creating a fake literary association to “protect” writers from things like, well, all of the above-listed websites. Then it listed the “Top 10 Literary Agencies” according to them. Not coincidentally, most of them were also on the “20 Worst” list from Writer Beware. It appears that one of the agents from this agency was formerly among the agencies on both lists.

Shady Practice No. 4:  This one is my personal favorite. Running through the new posts on a message board, I see one saying “Hey guys, I just found a new agent who is accepting queries [e-mail link] and this awesome agent is also taking queries, too [e-mail link to another agent at the same agency]. Here is their agency website [link number three]” Then I notice this happens to be the poster’s first ever post. I wouldn’t mind if they showed up and said, “We are accepting queries,” and, since it was the first post ever from that person I knew it was them, but pretending to be “one of the guys” (pardon the latent sexism, it was their word, not mine) just giving a “heads’ up” about a new agent is shady as fuck. You might as well post: “I am going to try to mislead you into going to my website and then enter into an important relationship with you before you realize that’s what I am doing.”

So, no, if you were the only literary agent on the planet, I would still not hire you. And your chummy post on a message board is not going to help that. But thank you for an opportunity to use you and your scummy-ass agency as a case study to help readers on my blog. We are starting at the end, knowing this is a shady-ass company that is not a clear-cut scam. They have some legitimate sales, but“even a blind pig finds an accord once in a while” is not a business model. So this one is technically a legitimate agency that I would never even think of using. Let’s to a walkthrough of how to vet an agency to see if we would get sucked in. In other words,

Let’s Pretend We Were Considering This Agency:

Step 1: Google is your friend. Googling the agency name, alone, yields the following results on the first page:

  1. Agency Website (doesn’t mean much, but if they didn’t have one it would be a nonstarter).
  2. A Publisher’s Marketplace listing with deals (at this point, I’m thinking ‘OK this person is legit.’ I’m mostly wrong, but that’s honestly what I would be thinking).
  3. A twitter account (that’s 4 years old. Again, it doesn’t count for much but it is one more indication they are legit).
  4. Two news stories about a book deal that didn’t go through, (no deal, but I’m impressed because this agent is in the media and appears to be a player. I have never looked into an agency that turned out to be shady that had this kind of legitimacy).
  5. A thread on one of the aforementioned bulletin boards (oops, I just found out about the $2,500 minimum commission and the editing conflict and, if you want to write non-fiction, they threw in a bonus ghostwriting conflict as well).
  6. Something I’ve never seen before, called ripoffreport.com (frankly, it looks like as much like a rant as a legitimate indictment of the agency, so I’m calling this one about as important as having a website and a twitter —i.e., not very, but worth noticing).

Step 2: The Usual Suspects.

  1. Predators & Editors has a listing, not listed as a “beware” but also shows that this agent had an AAR membership revoked. Now I am pretty scared.
  2. AbsoluteWrite told me what I outlined above, and I would have gone there anyway if I hadn’t found it via Google. The most damning thing on here were the posts from the agency itself, misrepresenting what was being said about it in the prior posts (as though we cannot read them for ourselves) and providing BS justifications for business practices the other legitimate agencies seem to live without.
  3. QueryTracker Not much information here, except for links to AbsoluteWrite and the agency posing as a member (for one post) and pretending to give information about agents (themselves). In other words, it is the agency’s own conduct more than anything anyone else is saying or doing that makes them look sketchy as hell.
  4. Writer Beware Lists the scary, don’t go anywhere near these people, agents. Just because an agent or agency isn’t on this list does not mean you should go with that agent, but it an agent is on this list, stay far away. They aren’t on this list, but I’m still not going for the minimum commission or overlooking two conflicts, so this agent is not even a maybe for me.

The lesson to learn here is that you should invest a little bit of effort in vetting any agent before querying him or her. It doesn’t take much effort to weed out the flat-out scammers, but you might need to go three pages into a five-page thread on a bulletin board before you find out the real problems with a questionable agent. There are over 1,000 agents out there, so there is no reason to even look at one who is questionable. If you can’t get a decent response from the first 100 agents or so, the problem probably relates more to your query or your manuscript (or both) than the availability of solid agents.

Word-Choice Rant No. 1: “When I’m Published, I’ll be an Author”

People keep drawing a false distinction between the terms “Author” and “Writer,” and it is driving me nuts. I am tired of witnessing arguments about whether you can call yourself an “Author” if you self-publish (the answer is: Who gives a fuck?) I’m ranting right now because of some spam I just got for a webinar that promised to help me “Go from being a writer to being an author.”

Gee, should I drop $99 on a webinar so you can coach me? Maybe not, since you don’t even know what those fucking words mean.

A huge chunk of people have gotten it into their heads that, until you’re published, you are merely a writer. Once published, you magically become an “Author,” and can therefore brag about your awesome Authorliness at cocktail parties – most of which are probably going to be thrown in your honor, since you are an Author. That’s what people do – they throw cocktail parties for Authors, because Authors are awesome.

Except that’s all bullshit. Most authors are unpublished. I am currently an author (as the “about” description on this blog truthfully states). I have never had a word of fiction published anywhere, but that has nothing to do with whether I am an author.

Here’s what the word “author” means:

author (n.) 

c.1300, autor ”father,” from Old French auctoracteor ”author, originator, creator, instigator (12c., Modern French auteur), from Latinauctorem (nominative auctor) “enlarger, founder, master, leader,” literally “one who causes to grow,” agent noun from auctus, past participle ofaugere ”to increase” (see augment). Meaning “one who sets forth written statements” is from late 14c. The -t- changed to -th- 16c. on mistaken assumption of Greek origin.

That’s right, author means “father” or “creator.” An author is a person who creates characters and stories. In other words, the phrase “fiction author” is as redundant as “fiction novel” since authors, by definition, are people who write fiction (and novels are, by definition, works of fiction).

What is a writer? Simple, it’s someone who writes things. Like me, right now, as I type this.

writer (n.) 

Old English writere ”one who can write, clerk; one who produces books or literary compositions,” agent noun from writan (see write (v.)). 

In other words, all authors are writers but not all writers are authors.

That’s it. That’s all there is to it. There is no secret ceremony in the basement of a church, where hooded Authors paddle you  by candlelight upon publication of your first novel, turning you from a writer into an Author. You became an author the minute you put down your first character’s first thought, movement, or word.

And plenty of well-known, established, rich and successful people have to make do with being writers (without seeming to care). Every great, best-selling historian, self-help guru, memoirist, or theologian you’ve ever heard of is a writer, not an authorBand of Brothers made Steven Ambrose millions and was turned into an HBO miniseries (that made him a boatload more money), but it’s history, not fiction. Steven, you are not the father. Steven Hawking made millions from A Brief History of Time and his other works, including children’s books, but they are about science, not made up people from his imagination, so he has to settle for being a rich, successful writer. I seriously doubt he gives a shit. People who write memoirs are writers. Julia Child is a writer. There is nothing wrong with being a writer. Similarly, whether or not you are an “Author” doesn’t mean jack shit. It means you have typed out a mind-movie on your computer keyboard (or written it on a note pad or something). That’s it.

Is there a gray area? Maybe. Bill O’Reilly leaps to mind. He made $24 Million last year selling books that are mostly filled with unrealistic shit he made up. But he called most of them nonfiction. Being a lying sack of shit does not make you an “Author.” It makes you a douchebag. Therefore, with respect to those works, Bill O’Reilly is a writer. He is also a lying sack of shit and a douchebag, but he is not an author (or an “Author”). On the other hand, he has also written piles of drivel that he admits are fiction. With respect to those particular piles of crap, he is an author. But it had nothing to do with any of it being published.

So, if you are waiting for the magical day that your book is published and you can start calling yourself an “Author” that day is here. Not because your book is being published. There’s a 99% chance it won’t be (nothing personal, that’s statistically true of me, too). That day is here because you created a character or a circumstance and put it down in some tangible form.

Which, if you think about it, is a pretty awesome thing for you to have done. 

Picking an Agent, Step One: Avoiding Scammers

This week, I’ll discuss how to choose which agents you want to approach when you are ready to start querying. Before covering how to pick good agents that you want to approach, we need to spend a little time looking atlowlife scum that you abso-fuckign-lutely do not want to go anywhere near.

A little bit of background:

What it takes to become a literary agent: I’ve covered this before, so I will try to be brief. Not a fucking thing.

There, I was brief. I will elaborate, but, if you’re willing to just take my word for the fact that what I said is true, you can just scroll down until you see bold again. Those four words fully summarize the standards, testing requirements, professional credentialing, and everything else involved in becoming a literary agent (in name). I could have done it in one word (“nothing”), but the F-bomb is mandatory.

AAR: Part of the Solution. This is a problem for legitimate agents as much as it is for us. They have set up a voluntary program (the Association of Authors’ Representatives, or “AAR”) as a clearinghouse for separating legitimate agents from bogus agents. Agents must have a certain number of sales under their belts to be members, they are required to abide by a code of conduct, and, generally, some decent professional standards and protections for authors’ best interests are required of them.  Most legitimate agents are AAR members. You can find all of the details on their websitehttp://aaronline.org/.

Yay, AAR. 

There are a few problems, though:

1.     The AAR database sucks balls. Here, for example, is a search to see if Otto Maduro is an AAR member:


OK, so that guy is not a member, big deal. Except Otto is a member and was the fucking president of AAR last year.

So AAR is not a place to start your search. It isn’t even a decent place to look at whether the agent you are looking at is an AAR member

2.     Not all good agents are AAR members. I’ll say right out that most good agents are AAR members. But, to become an AAR member, the agent needs to have been agenting for a certain amount of time, had a required level of sales over an eighteen month period, etc. Aside from legitimate reasons for not joining AAR, even a newer agent who wants to become an AAR agent won’t be one yet. One of the agents at the very top of my wish list right now, who is reading my full manuscript (and, I like to think, is falling in love with both it and me as I type this) is not an AAR member. I would be one of her first clients – but she is transitioning to taking on clients after being an assistant to one of the true SuperAgents. Landing her would be a coup. If she calls, I will not say, “Sorry honey, call me back in eighteen months.” On top of that, some of the best agents in the business are not AAR members (even though they have Nobel and/or Pulitzer prize winning clients). There are a thousand reasons they could choose not to be members, but I can guarantee the only reason they are not is that they have simply chosen not to.

3.     Not all AAR members are good agents. They probably aren’t scammers, but that does not mean they are particularly good at their jobs. Also, a good agent for selling cookbooks might not be a very good agent for your space opera or that choose-your-own-adventure erotica you’ve been writing. The difference between a good agent and a bad agent is what I will primarily be talking about this week, so I won’t belabor the point here.

AAR’s Bottom Line: It’s better than nothing. If you use the QueryTracker, AgentQuery, or PublishersMarketplace databases, which seem to keep track of AAR members better than AAR does, you will find that most legit agents are AAR members. If the agent is looking at you (“Saw your twitter…”) and she isn’t on AAR, you’ll need to vet the hell out of her for yourself.

A bigger part of the solution: Don’t be a dubmass. There are a lot of lists of questions to ask an agent before agreeing to representation and things to look out for when agents approach, all of which are unnecessary at this stage. To avoid the flat-out scammers, you only need to follow one piece of advice:

You pick them, they don’t pick you.

That’s it. Period. How do decide which agents you’ll approach is a huge question (that I’ll probably spend the week trying to answer). How to avoid landing with a shady agent who will rip you off, however, is a question with a very concise answer in two parts: (1) Approach legitimate agents who have solid track records selling books to real publishers; and (2) Assume anyone approaching you is shady as fuck.

There could be exceptions to this rule, but they are going to be rare enough that 99.99% of us don’t need to worry about them. If this section doesn’t apply to you (i.e., if you are a Navy SEAL with a congressional medal of honor for rescuing puppies from an Al Qaeda dog fighting ring, who does work for Doctors Without Borders removing shrapnel from Oprah’s ass while on leave) skip ahead. Schmucks like me (i.e., people who wrote good books and are looking for agents) will not be approached, out of the blue, by legitimate agents.

A good literary agent is swamped with submissions – literally thousands or tens of thousands for every one that may become a client – if she is even accepting unsolicited submissions. Hell, mediocre agents and bad agents are swamped with submissions. They don’t have time to get through their in-boxes, let alone troll Twitter, Tumblr, and WordPress looking for new clients.

Here is the normal path to legitimate agentship (yes, a made-up word). The aspiring agent goes to work for a legit agency as an assistant to a real agent. Eventually, the mentoring agent lets him take on a few of his own clients, often things the in the slushpile that the agent isn’t quite willing to take on but would have earlier in her career. After a few sales, the assistant is paying his bills with his cut of our royalties, and they both need a new assistant. Then the old agent retires or dies, the young assistant-cum-agent is the old agent, and his assistant wants to take on some clients, and everyone joins hands and sings The Circle of Life.

Notice the part that was missing. The part where the new agent trolls the internet scouring blogs and message boards for clients. That’s because that part never happens in the legitimate agent world.

Why is this post even necessary? Because, before we can even discuss finding good agents or avoiding bad agents, we need to cut away the flat-out con artists posing as agents who prey on aspiring writers. Fortunately, they are easy to spot:

Dead Giveaway 1: They want money. There is no reason an agent should ask you for money. For anything. I don’t care if it’s a cup of coffee or to borrow five bucks for cab fare home. There isn’t usually much money in this business, but what there is only flows one direction. Raise your hand and repeat after meMoney only flows to the author, never away. I could list a thousand ways money can be asked for (reading fees, agency fees, retainer fees, copy charges), it doesn’t matter. Regardless of what label they put on the money – if it is flowing from you to someone else, you are being ripped off. 

[Note: Legit agencies may charge some expenses to clients, which are deducted from royalties, but the author is not asked to pony up cash for those, they are minimal, and we’ll cover them in detail later].

Dead Giveaway 2: They want you to give someone else money. A thinly veiled version of No. 1, this con can also take many forms. A typical example is an agency saying, “Your manuscript is close, but it isn’t quite polished enough for us to consider representation.” Oh, man, I was so close. Then (in the same e-mail or sometimes a few days later or the agent’s assistant sends you a “psst, over here,” e-mail) you find out that there is a great editor who can really polish up your work just the way they like it. So you hire the editor (who is not editing it FOR FREE like your crit partner should). You spend a few hundred bucks, they run the thing through grammar check, take out half of the uses of the word “that” in the manuscript and you resubmit. Then the agent usually pretends to take you on as a client (worse than not having them as your agent) or just ignores you (which is actually the best thing that can happen to you at this point). How can you possibly avoid this scam? I’ve got an idea, Raise your hand and repeat after meMoney only flows to the author, never away. That’s it. It doesn’t matter whether you’re being told to give the money to someone else – if you’re being told to hand over money, you’re being ripped off.

[Note: There are legitimate editors who work freelance, but an agent should never refer you to one, and certainly not by name. Although an editor can even help you polish your manuscript, you will almost certainly spend more money for the editing than you will make from your book.]

[New Note: I’m updating the day after I posted this to add that a tweet from a “freelance editor” was just forwarded to me. It contained two hyphenation errors in nine words. I realize it’s twitter, but that does not excuse hyphenating after the prefix “re” or not hyphenating a compound adjective — especially if you are on there promoting your editorial skills.]

Giveaway that isn’t dead but is in intensive care: The hostage manuscript scenario. This is easy to avoid on the front end, by picking a good agent who will rep your book well (what we’ll cover in other posts this week). But there is no clear-cut line separating what a real agent legitimately asks for (exclusive permission to represent your book) and what a scammer asks for (the same thing, with no intention of really doing it). The difference is in what they do when they have that exclusive. A legit agent uses it to represent your book to publishers (yay). A scammer uses it to keep anyone, including you, from doing anything with your book until you pay some kind of “overhead” or “handling” or other charge. In other words, he uses the exclusive to hostage your manuscript until you pay the ransom. If there is a good way to avoid this after you’ve picked an agent, I don’t know what it is. There is a great way to avoid this on the front end, though. Pick a solid, legit agent who makes all of her money selling her clients’ books to publishers. How to do that is what we will cover in detail for the rest of this week.

IN SUMMARY:   Although there are no legal requirements for becoming a literary agent, two easy steps that will help you avoid being ripped off by a scammer posing as one: (1) You approach them, they don’t approach you; and (2) money always flows from the publisher toward the author, never from the author to anyone else.

On Critiques and Writing Advice (Or: Editing on teh interwebs r teh suk)

When I interviewed for my current job, they asked the standard interview question, “What would you say is your biggest weakness?”

I hate that question. My natural impulse is to say something like, “It’s kind of a tie between my porn addiction and my really violent temper.” I am mature enough to resist, but the next impulse is to be honest and say, “You realize I am just going to pick my penultimate strength, saving my biggest for when you ask what my greatest strength is, and rephrase number two as a weakness, right? So, I guess I just care too darn much about my job.”

The answer I really gave them is true: I take criticism well. All I care about is the final product. If someone shows me how to improve, it doesn’t even occur to me that I should be insulted. The challenge for me is remembering that not everyone feels that way, and Bill down the hall may not see the sixty-three changes I made to his five-page document as a friendship offering and labor of love for his benefit.

Which brings us to teh interwebs — and writers’ forums, the great double-edged sword. On the one hand, some skilled and experienced writers participate in writers’ forums. There are also probably some hot lesbians in lesbian sex chatrooms, too. Like the most hot lesbians in lesbian sex chatrooms, many of the people claiming that they are skilled, experienced writers on writers’ boards are not what they claim to be.

There are two distinctions between cyber-Hemingways and cyber-hot-lesbians:

1)    When a middle-school student with a C average spends his afternoons crushing Doritos and Mountain Dew while pretending to be a hot, twenty-three year-old lesbian, he is vaguely aware that he is not, in fact, a hot, twenty-three year-old lesbian. He may, however, believe that he has mastered the intricacies of style, punctuation, and grammar.

2)    Someone giving bad advice on a writers’ board may be (in fact, usually is) doing so with the best of intentions in an earnest attempt to help you.

This would be easier if good writers on writers’ boards were as rare as hot lesbians in lesbian sex chatrooms. We could just ignore the extremely remote chance they exist, assume everyone in there is a middle school boy pretending to be that which he is not, and move on. But some excellent writers and editors are willing to give free advice, and that is a key resource to tap into. I found my critique partner in a forum (after stalking her for a month and realizing she really knew what she was talking about). I was not surprised to discover through our later e-mails that she is an editor in her day job.

Things to think about when getting writing advice from teh interwebs:

  • The person who talks the most on a board does not know the most. However, she almost certainly thinks she does.
  • A person claiming to be “published,” “have a publisher,” “have an agent,” “have ten books published” or anything like that may or may not be worth listening to. People can self-publish anything, and vanity publishers will gladly let you pay them to publish whatever you would like. There are no standards for being a literary agent (something I will discuss in detail in a future post). If I decide I am a literary agent, I am a literary agent.  — There, I did it. I am going to represent my dog. Now my dog has a literary agent. You should not, however, take her advice on punctuation or grammar (although her insights on plotting are surprisingly nuanced).
  • Even experienced writers with good insight can unintentionally give you bad advice on teh interwebs. Many boards ask you to post a first paragraph, first three sentences, or something like that. I stopped commenting on anything but glaring errors on those things, because what seems like great advice for a paragraph standing in isolation may be bad advice for the page. I saw this happen repeatedly – including my own critiques of others’ work – when people would later ask me to look at their manuscripts.
  • Ignore generalizations. People who write action-based, first-person, middle-grade, sci-fi may be certain that all books need to open on an action scene. To Kill A Mockingbird would not have been a better book if it opened with a laser battle.
  • Even if ten people are telling you the same thing, that may only mean that the people who spend the most time on that board have won the argument about whether it’s right.  Plus, even if it’s right for them, it may not be right for you.
  • Having said all of that, there are some highly talented and knowledgeable people who are willing to give you free help. Take it. Then think about it, maybe Google it and learn about the concept they are discussing. Take the advice for a test drive and decide if it is going to work for you. Don’t just blindly make changes to your manuscript because someone told you to.  Learn about the concept she is explaining and then employ it if you think it’s appropriate.
  • Speaking from the perspective of the advice giver, now: Whether you take the advice or not, don’t argue with it.  Feel free to ask a question to clarify, but don’t tell people they are wrong, even if they are. They did you a favor by making a suggestion.  The suggestion might not be right for you. That’s great. If you want to start a 250,000 word manuscript with a ten page flashback that describes a sunrise in passive voice without relating it to the plot or the story — go for it. My job is not to spend my entire day convincing you that is a mistake, it is to encourage you to consider the possibility that it might be.

THE BOTTOM LINE: You should be willing to consider everything, but don’t get bullied into anything. If you get advice that improves your writing, it was good advice. If not, disregard it. If someone is offended because you did not follow his advice, you made the right decision. It was offered to fuel his ego, not as something that may be of value to you.

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