As The Good Book Says…

29 Jul

In recent posts, I’ve discussed issues such as copyright and derivative works. One area that might surprise you is quoting the Bible. Surely it’s free to quote? After all, it’s nearly 2000 years old at its youngest. Unfortunately, no. The problem is that what you’re actually quoting is a translation, which, like all translations, means the copyright is vested in the translator, with all that entails. So, if the translator died over 70 years ago, you’re okay – unless it’s the King James Version and you want to publish in the UK, where it remains in Crown Copyright. (The details of how this affects the right to quotation is unclear – it definitely prevents you from printing a copy of the KJV Bible in the UK without permission, but whether you need permission to quote from it or must include an acknowledgement is unclear.)

Even if the translation is in copyright, you can often quote small amounts with an appropriate acknowledgement, but you do need to check if this is the case. Fair use for non-fiction, of course, still applies if you’re discussing the translation itself, but if you want to use the translation for other purposes (for example, discussing Biblical history) you need to check whether you can use it.

Thus, it is often best to use a translation that is out of copyright, such as the King James Version (outside the UK) or the Douay-Rheims translation. You could also translate a passage yourself (given that there are often only a limited number of potential translations for a given passage and most or all with have been used, often by more than one translator, this does throw up a question of whether a short Biblical passage is any more copyrightable than a generic sentence such as “Good morning,” he said.) There is also a further grey area where you are quoting an out-of-copyright source that quotes the Bible without attribution (as in The King In Yellow) or quoting common sayings that derive from the Bible (although these have often mutated slightly in the public consciousness).

Given the ubiquity of the Bible in Western culture, it’s an irritating area of confusion, but as long as you avoid using new translations that are definitely in copyright, you should be okay.

 

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Hiatus and Backlog

6 Jul

We are currently on hiatus. The only submissions we are open to at the moment are for The Supplement. Please do not send anything else until we reopen in September.

As many of you will know, we have had a backlog of submissions. This has now been cleared so that only submissions sent this year and in 2018 are waiting for responses (and will be looked at during the hiatus).

If you sent a submission in 2017 or earlier and you haven’t heard from us, it has been rejected. Unfortunately, in order to clear the backlog, responses had to be limited to acceptances only. Now that we are back on track, all submissions will be receiving a response, whether an acceptance or rejection.

We apologise for this and the delays, but hope to be able to respond promptly in future.

Lunar Module has landed!

5 Jul

Celebrate fifty years since man first walked on the moon with our new booklet, Lunar Module, featuring poetry by DS Davidson, John Francis Haines, Mark Hudson, John Light, DJ Tyrer, and Neal Wilgus. To order, it is a £1.50 booklet and the 3-for-2 offer applies as usual.

Atlantean Lunar Module CoverCover art by DJ Tyrer.

Gareth Roberts gets the boot…

7 Jun

It has been announced that Doctor Who writer Gareth Roberts (one of the series’ best) has been dropped from a series antholog because of posts he made about transwomen. They were, as he puts it, ‘cheerful vulgarity’ (ie jokes in bad taste). He is open that he doesn’t agree with the predominant views on transitioning, but, even if you disagree with him, it really has nothing to do with his inclusion in the anthology, unless his story itself was offensive (and nobody has said it was).

I disagree with his views, but I don’t see why that disagreement means that I should shun his fiction as a reader, nor that I ought to refuse to be published alongside him as a writer if we ever happened to have work in the same anthology. To be honest, this is exactly why I tend to prefer not to know too much about authors or other artists – I want to take their work on its own merit, not judge it by their beliefs or lifestyle.

But, with some readers threatening to boycott the book and some writers saying they would pull their stories, the BBC decided, rightly or wrongly, that the volume wouldn’t be viable with his story in it. This is a shame.

The arts should bring people together, not be used to push them apart.

No Celebrities Were Harmed

7 Jun

In the last two posts, I’ve discussed copyright and derivative works, but there is one more aware to consider – using real people, places and items in your fiction.

Unless there is some element of copyright involved (such as a quotation or song lyrics), then anything that exists in the real world is, theoretically, fair game for inclusion in fiction. But, you’ve guessed it, it’s not quite that simple.

Once again, parody and satire apply, so if you want to mock a politician or make fun of a brand, you can, but, if you’re telling a story set in the real world, you probably want to be able to mention real things to give a sense of veracity. Sure, you can often just write that a character got in their car to drive to work or bought a takeaway, but sometimes you want to be more specific.

Mentioning a person, a place, a vehicle, or a brand is no different to mentioning the title of a song or book. You can say the character saw President on the news or went to school at Eton or drives a Porsche, that they eat at McDonalds and wear Nike trainers, just as you can say they listened to Eleanor Rigby and read The Lord of the Rings. You can even let them have opinions on things, just as real people can express their opinions.

Of course, as I keep repeating, the ability to afford lawyers can trump the facts of the case, so you may want to avoid identifying a heinour villain with a particular brand or saying anything especially rude about someone in case they choose to sue.

If it’s something public – a public street or building, the army or police force, Parliament or the US Senate – there should be no issue including it in your story, even if it involves negative aspects, such as police or political corruption (as long as you don’t appear to be targeting real individuals), as such places and bodies are so entertwined in our daily life that demanding they be cut out would be ridiculous. (Of course, some countries, with fewer freedoms, may restrict what you can say about public institutions, but that will only affect you if you live there or try to publish your work there.)

Equally, private property that is essentially public, such as shopping centres and malls, shouldn’t be an issue if used as a setting (featuring the owners or employees in a negative light could be a problem, though). Shops and other businesses are a little more contentious – having a character go into a particular shop to buy something and maybe chat to another customer isn’t likely to be a problem, but using a real business as a setting could be, especially if anything negative is involved (even if the business isn’t itself involved – portraying an employee as a drugdealer could still be seen as impugning the company).

Places where the public generally don’t go, such as the offices of a business, can be riskier still. (Things can get more grey if we’re talking about a future iteration of a real business in a future setting or parallel timeline. Probably still best to keep them to passing mentions rather than primary locations or using them as evil corporations.)

Although there is nothing stopping you from drawing inspiration from them, specific private homes should probably be avoided as it could cause problems for the people who live there or lead to claims you are targeting the inhabitants if something negative is said about their fictional equivalents.

People who are in the public arena can certainly be used as characters in a story, but there’s a reason why so much fiction claims that any resemblance to anyone living or dead is a coincidence – there’s always a chance they could sue if they don’t like their portrayal. Of course, a short story featuring a cameo by President Trump in a small press magazine probably isn’t going to be a blip on the radar of his libel team, but a successful novel in which he plays a prominent part may well be scrutinised closely.

If they are portrayed in a straightfoward way that fits with their daily role, such as the President handing out medals to the heroes of your story, there should be no problem, but you may find it safer (and, indeed, proof against them dying or retiring) to just generically refer to their job or create a fictional counterpart. Anything offensive or sexual is very likely to get you sued. Although unlikely to be granted, you could seek permission to use them.

People who aren’t in the public arena should be avoided unless you have their permission. Given that friends of authors already seem inclined to assume characters are based on them, and sometimes to take offence over a perceived similarity, it is a good idea not to actually do so (create composites utilising traits of multiple acquaintances).

Of course, as with fictional characters, there’s nothing stopping you from using the name of a real person for your character, but, if their name is disctinctive, there could be repercussions. (John Smith is safely generic, but if there is only one person in the world who shares the name of your serial killer and there are traits in common, you could be sued for defaming them.) Indeed, you may want to check that a name you plan to use for a prominent character isn’t that of a celebrity that you once heard and which has clung on in the back of your brain.

Dead people can’t sue for libel, so you can certainly use historical figures however you wish. However, if they have close friends or relatives who are still alive, you may wish to be careful in case what you write reflects upon them by association. Writing a story about a dead politician being part of a paedophile ring could land you in court if you state his friends and colleagues knew and covered it up and some of them are still alive to be tarred.

Welcome to the real world!

Derivative Works

5 Jun

Following on from my last post, here are some thoughts on ‘derivative works’, that is, developing something new from an existing work (inspired by advice given here for a Beatles ‘What If’ anthology).

As noted previously, character names and the titles of stories and songs are fair game as far as copyright goes (trademarks and ‘passing off’ are a different issue). So, from a copyright point of view you could call your story “Harry Potter and the Chamber of Secrets” – where you would be in trouble is that the title is trademarked. Because trademarks cover specified fields (such as printed material or clothing), you may find that something is trademarked in one area and not another, allowing its use, but you would still need to be careful about ‘passing off’ your work as if it were officially licensed.

Characters as a whole sit in a sort of legal limbo. Obviously directly copying a character’s description would be copyright infringement, but, just as plots can’t be copyrighted, neither can a character as such. The problem is that not only can a character be distinctive enough that the elements can be considered copyright, but we return to passing off territory. Especially if you are using their name.

Which brings us to derivative works. While you could have a non-wizard character called Harry Potter or a parodic version of Harry, writing a story where Harry Potter is the Harry Potter (or, indeed, not the Harry, but another Harry in the same Wizarding World who is named after the hero) is a derivative and would require permission and most likely a fee. (Yes, fan fiction is derivative work, which means it’s technically illegal if you haven’t received express permission – some creators give blanket permission as long as you aren’t making money or presenting it as official material, some provide permission on a case-by-case basis, and some have blanket bans. Generally, as long as it isn’t being charged for, keeps a low profile and isn’t damaging to the brand, most property owners ignore it, but you may find yourself being ordered to take it down if you don’t have permission. Remember, you have the same right to object if someone is drawing from your creations.)

A grey area is when you take someone’s ‘intellectual property’ and recast it in a very different form that remains reliant upon the original to make sense (without it being parodic or satirical). Making Harry Potter an alien with psychic powers wouldn’t necessarily save you from being sued for infringement of the property (and, once again, by calling the character Harry Potter, you would probably be accused of passing your work off as officially licenced).

That doesn’t stop you from running with ideas inspired by an existing property, but the key word here is inspired. An urban fantasy where wizards operate out of sight in their own society isn’t a derivative work, but if you borrow too closely from the Harry Potter books, unless from the same sources that JK Rowling borrowed from, you could well be in infringement.

Of course, if you have a great idea for a derivative work, nothing is stopping you from contacting the owner and seeking permission, and many franchises have opportunites for fans to write for spin-offs (such as the Big Finish Doctor Who audio adventures). Or, if the franchise is the right sort, you might be able to write something that is clearly intended to be linked, but doesn’t actually infringe on any trademarks, nor risks being accused of passing itself as official (in Doctor Who fan productions, there migth be a passing reference to a minor planet, or ‘some guy who called himself the Dentist, or something like that’, enough to hint at a link without making it concrete and, thus, actionable).

If work is out-of-copyright, you are on safe ground – but, again, there can be risks. Sometimes things that should be out of copyright aren’t (because it was transferred to another owner by the original creator), sometimes things can be out of copyright but elements remain trademarked, putting you at risk of trademark violation or passing off (the early Mickey Mouse cartoons, for example, are out of copyright, but Mickey is still owned by Disney), sometimes the copyright was established early in a creator’s career and they lived a long time afterwards (remember, copyright extends for seventy years from the creator’s death, not its inception), and sometimes the popular version of a work includes elements added later (for example, King Louis wasn’t in the original Jungle Book, but was introduced by Disney).

And, even if something is safely out-of-copyright and free from trademark issues, or you’ve carefully skirted any that exist, publishers may still refuse to accept it to avoid any potential headaches. (After all, if someone claims to own a copyright or have a trademark that they don’t, or they object to your clearly parodic work, you can still find yourself in court defending your legitimate use. Too often, money is more important than actual right and wrong in these cases – unless you or your publisher have deep pockets, it may just be best not to risk it.)

So, do your research and think carefully. If you do, you should be fine.

Can you quote it?

30 May

Quoting song lyrics seems to be one of the most confusing areas for writers (just consider the comments here). The simple answer is that no you cannot quote song lyrics in fiction unless either they are out of copyright or you have permission from the writer (which usually entails a lot of hassle and a fee). The problem, of course, is that not every piece that should be out of copyright actually is and some erstwhile owners don’t really own the lyrics, but have the money muscle to bully people into paying up regardless.

Of course, if you are writing non-fiction, discussing the lyrics of a song, you can quote it under ‘fair use’ (generally this means as small amount as possible to achieve what you need – so, no reprinting a whole song if a couple of lines would suffice). Even here, there can be risks, if the owner has deep pockets and is litigious, and where you stand if your fictional characters discuss lyrics is anyone’s guess…

What you can quote are the name of a singer or band and the title of a song, and there is nothing stopping you describing a song’s sound or lyrics as long as you don’t quote them. (Be careful not to let them slip in – write “That song the dwarves sing when they’re heading out to work,” not “That song the dwarves sing when they’re off to work,” or, worse, “That song the dwarves sing when off to work they go.”) (If you’re wondering, my use of the quotation there as a discussion of what not to do is an example of fair use.)

It is an unfair situation as songs permeate our culture and, in real life, people frequently quote them in conversation. Unfortunately, this is one area of realism your writing has to avoid unless you can get permission.

These points, of course, also apply to quoting poetry and prose. As with songs, you can mention authors and titles, and you can also mention characters (“He had a beard like Gandalf”); you can also descibe a novel’s plot.

Can you recycle character names and book titles? The answer is “yes, but…” As far as copyright goes, there is nothing stopping you – you cannot copyright a name or a title – but, and this is a big but, you do need to be aware of trademarks and ‘passing off’. ‘Passing off’ is when you try to make it appear as if your work is by or authorised by someone else – so writing a story under the pseudonym ‘JK Rowling’ would mean you were ‘passing off’ your work as hers (yes, this does lead to awkward legal grey areas where an author has the same name as another, pre-existing or more famous author, which is why you see them inserting middle initials, or just plain adopting a pseudonym). Equally, writing a novel with a lead character called Harry Potter, especially if you called it Harry Potter and the… is also ‘passing off’.

But, could you have a character called Harry Potter? Yes, technically, you could, certainly if the book isn’t fantasy, but, unless they are very minor, you’re probably looking at legal issues, accusations of trademark infringement, and certainly restrictions on using them in publicity. A character called Henry Potter who mentions he hates it when people call him Harry and ask him to whip out his wand would be far more acceptable. Names like Frodo and Gandalf, of course, if used in their proper historical context should be fine, as long as they aren’t too similar to Tolkien’s characters; you could also create the child of hippes named Frodo Jones, or something, but, like Harry Potter, you face problems with using the character in publicity, and might face litigation, even if most people would agree you weren’t treading on their trademarks.

The one area where you can quote freely (for a certain value of quotation) and use trademarked names is parody. If you are using copyrighted or trademarked material to make fun of the material, you are in the clear. (This should also apply to satire, but is more of a grey area – using Daleks to mock the BBC is a-okay, using them in other contexts may be less defensible). So, a story about Frodo bungling the ring quest in a comedic fashion is fine, better still if you change his name slightly. Frodo Jones, child of wacky hippies, could also be protected this way, especially if his life story parallels and comments upon that of the ringbearer. Generally, the more overt the parody is, the better. Subtlety might see you sued.

So, don’t give up completely on quoting lyrics in your novel, but do make sure you do the research first to avoid getting sued. (And, should you be submitting to Atlantean Publishing, let me be clear that we expect you to have done your research and that you are responsible for any legal issues arising from not doing so! This applies to most publishers.)