Posts tagged with: copyright

Volunteer Lawyers for the Arts (Special guest: Jennifer Williston)

Today I’m taking a break from being the resident “Lawyer Ruby.” Okay, fine, that’s still my role, but our special guest is going to talk shop today instead.

Please welcome my good friend Jennifer Williston. When she’s not being forced by my two-year-old daughter to do sticker art with her, Jenn is an intellectual property attorney in the Washington, DC area. In addition, she’s the Chair of the Literary Committee for Washington Area Lawyers for the Arts.  

Jenn and I taught a popular workshop together on basic copyright and trademark law at the 2009 RWA Conference. (It was moderated by Nora Roberts!) Since then, we’ve co-authored an article for the RWR. But today she’s flying solo, talking about her pro bono work in the Volunteer Lawyers for the Arts movement. Take it away, Jenn!


The other day at lunch the friend of a co-worker approached me with a legal question.  As you can imagine, this situation is not an unusual experience for me. Once someone finds out I’m an attorney, the legal problems and hypothetical questions come from every possible direction. I’ve been asked to help with parking tickets, income tax, wills, landlord tenant disputes — the list goes on and on.  My typical approach in these situations is to listen to the question and then politely decline to provide an answer, usually referring the person to an attorney I’m familiar with who is knowledgeable in the field or to the local bar association.

 Today’s question was different, “Can I name the restaurant I’m developing after the title of a popular novel?” I’m sure all the writers who are reading this blog want to shout out “absolutely not” and “under no circumstance.”  Intrigued with the idea, instead of my usual deferral modus operandi, I answered, “Well, it depends, because in most circumstances a writer has no legal basis to protect the title of his or her work.” 

I’ll spare you the details of my hypothetical-filled conversation with the budding restaurateur. I decided to share this anecdote with you because it stresses the need for writers to determine what their rights are and, more importantly, how to protect them.  Many budding and unpublished authors are so consumed with their manuscripts that they do not take the time to protect their rights or, with limited income, do not believe they have the resources to pay for legal representation.  I want to stress to you that understanding your legal rights is just as important, if not more, than the quality of words you write each day.  While this task may seem daunting, it’s not. 

There are many non-profit legal organizations a writer can turn to for assistance, with Volunteer Lawyers for the Arts organizations at the top of the list.  The organization I’m a member of, Washington Area Lawyers for the Arts (covering artists in the DC-metro area) provides access to education, advocacy and legal services through workshops and seminars, legal clinics and pro-bono referral services for creatives.  Known in the community as WALA, the organization provides members in need of legal representation with referrals to pro bono attorneys who will answer your legal questions and take legal action on your behalf. If you do not meet the minimum income guidelines, WALA will refer you to specialized attorneys who may negotiate a discounted rate to assist with your legal needs. 

The organization also offers many educational programs throughout the year, for example, we’re just wrapping up our Creative Entrepreneur Series.   A six-part seminar on common issues creatives face in their professional career, the Creative Entrepreneur Series features topics such as copyright and trademark protection, contracts and licenses, and negotiation skills.  Last year, WALA represented approximately 150 artists in legal matters and has already served over 375 members of the creative community through educational programming this year. 

Most states or large cities have a volunteer lawyers for the arts program that provides artists and creatives with similar legal services for a small membership fee, or in some instances, no fee at all.  I strongly encourage you to get involved with WALA or your local VLA and protect your legal rights.  Then, if someone tries to copy your work, asks you to agree to an atypical publishing agreement, or wants to open a restaurant that uses the same name as the title of one of your books, you’ll understand your rights and be ready to take action.  

For more information about WALA, visit  For information about a VLA in your region check out this list compiled by the New York Volunteer Lawyers for the Arts.

What’s So Fair About Fair Use?

I often get questions from writers about their ability to use material in their writing that was obtained from other sources. Maybe you are writing a historical work and want to use other historical works as background. Perhaps your hero and heroine are slow dancing to a popular song, and you want to “show, not tell” by including the lyrics. Or maybe putting a snippet of your favorite poem in italics at the beginning of each chapter is just the effect you need. What if you are criticizing or comparing text written by someone else?

For works under copyright, the question of whether you can use portions of the work without being liable for infringement is covered by the doctrine of Fair Use. This doctrine originated in the “common law” (law made by judges) in the United Kingdom in 1740, from which U.S. judges drew to develop the U.S. version of fair use at least as early as 1841. It was not actually codified until Congress passed the 1976 Copyright Act.

The Fair Use clause of the Copyright Act says it is fair to use a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research, without the consent of the copyright owner.”

Every fair use case is a question of facts. The test for fair use is very easy to state, but very difficult to apply, and the outcome is even more difficult to predict. Fair use is determined on a case-by-case basis, meaning that if you ask someone, “Would it be fair use to do _______?” the most likely answer you’ll receive is “It depends.” (Get used to that answer. You’ll be hearing it a lot.)

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