Lawyers for the Creative Arts Interview with Marci Rolnik Walker

By Carrie Olivia Adams on Wednesday, March 21, 2018
Read Marci Rolnik Walker’s thoughts on LCA’s legal services for artists

Legal Issues in Publishing Q&A: An Interview with Marci Rolnik Walker, Legal Director, Lawyers for the Creative Arts

Courtesy of poetry editor and CWIP member Carrie Olivia Adams, this guest blog post interview with Marci Rolnik Walker, Legal Director of Lawyers for the Creative Arts (LCA), highlights their services, legal changes in the publishing industry, and legal advice for writers.

As a brief reminder, Lawyers for the Creative Arts will be attending Chicago Women in Publishing’s Fourth Annual Publishing Fair is this Saturday, March 24 from 10:00 a.m. until 2:00 p.m. at Roosevelt University (430 South Michigan Avenue). If you have not signed up to attend, there’s still time! Click here to register to attend CWIP’s 2018 Pub Fair.

What was the inspiration for establishing Lawyers for the Creative Arts?

Lawyers for the Creative Arts (LCA) started in a Chicago Bar Association committee as an effort amongst lawyers to provide needed legal help to individuals and organizations in the arts. Our founders were part of the group, and in 1972, they formed Lawyers for the Creative Arts as a nonprofit charitable organization. It was one of the first Volunteer Lawyers for the Arts (VLA) organizations in the country, second only to Volunteer Lawyers for the Arts in New York. There are now approximately 30 similar VLAs nationwide with similar missions to provide legal and business help to artists and arts organizations.

LCA exists primarily to even out the typical uneven bargaining power between artists and better-financed businesses that use creative services and content. The attorneys that started LCA realized how unfair it is to lack access to experienced lawyers and that we can collectively make a difference as a legal community. We now pride ourselves on both our legal referral program and our educational seminars that help artists learn how to spot legal issues so that they turn to lawyers for help early on before legal problems arise. In recent years, we’ve published the LCA Law Guide book series to also bridge the knowledge gap and help artists better understand legal principles to make informed decisions and obtain counsel when needed.

What types of legal services or counsel do artists most utilize your office for?

Clients seek help with a wide range of legal matters on all the unique issues that are part of their creative work and business practice. We help with business startup, dissolution, mergers, contracts of all kinds, collaborations, real estate and commercial leasing, visas and immigration, disputes, including non-payment, infringement, and breach of contract, and of course, we handle a significant volume of intellectual property protection matters. LCA works with over 2,000 volunteer attorneys, and as a result, it essentially functions as a virtual law firm with attorneys who are experts in almost every area of the law.

Have you seen these needs change as the publishing industry has changed in the last few decades? And if so, in what ways?

Legal needs for writers have changed substantially, along with industry changes to make printing and distribution more affordable. Changes in technology and the ability to share digital files, blogs, generate websites, populate content, and market electronically have led to more opportunity and risk to protect literary and technical writing outside the realm of the printing press.

One of the biggest issues has been defining what the term “out of print” means in publishing contracts when it’s now so simple to print an on-demand copy without doing an entire print run. This really hits at the core of any contract out there—exactly how long does the deal last? At what point can a writer terminate the agreement and get rights back?

Lawyers recognize that a publisher may later stop actively marketing a book and add rights reversion clauses and caps on the amount of time to get work into print and to exercise options to subsidiary rights such as sequels, dramatic works, foreign works, and audio books to better assure writers a source of income from their work. It doesn’t do writers any good to have a publisher sit on an exclusive option, so we limit the time to act on it before the rights revert to the author.
Some other big issues have revolved around copyright protection and registration. How long does written expression need to be to meet the originality requirement? Does a Tweet count? What about short verses in rap and spoken word?

The short answer on whether Tweets and other limited character posts and writing are copyrighted is: “It depends.” Under the Copyright Act, work is protectable if it’s an original expression and fixed in a tangible form. Tweeting a list of facts or a title or slogan doesn’t meet the threshold. Writing a thoughtful statement or opinion may. There’s no litmus test of how many words are required just as there’s no exact number of how many you can borrow and rely on the affirmative fair use defense.

Writers need to be on their toes and think through whether permission is needed to quote others and post images. We know from Faulkner Literary Rights v. Sony Pictures that quoting a nine-word line in a motion picture was considered fair use. The case was heavily criticized in legal circles as a frivolous suit that did no damage to the estate and on the contrary, it may have bolstered sales.

Are blog entries, like this one, considered “published” under the Copyright Act, meaning a copy has been sold or offered for sale or otherwise licensed, or been distributed widely to the public without any restrictions on further dissemination?

Lawyers spend time reading all the fine print in Terms of Use (TOU) for social media, Tumblr, and sites that call for article or other content submissions to answer that question. For the most part, adding content to another website you don’t own and control may very well mean entering into either a formal or implied license that can constitute publication—and it has legal and business consequences as to when you should register copyrights in the work and whether you can group certain posts or content together in one registration.

The general rule of thumb is to register work when it is clearly unpublished prior to uploading it to the internet or no more than 90 days after the first publication in order to be able to recover the maximum penalties under the Copyright Act. Some lawyers will advise registering aggregated blog content as a collection every 90 days and choose the date of registration as a publication date, but as the Copyright Office aptly points out:

The fact that a work has been placed online or posted on a website does not necessarily mean that the work has been published. The Office considers a work published when copies of it are distributed to the public by sale or other transfer of ownership if the copyright owner authorizes  the end user to retain copies of the work. Merely displaying or performing a work online generally does not constitute publication. However, a work is considered published when the copyright owner offers to distribute copies of the work to a group of people for the purpose of      further distributing the copies or publicly performing or displaying the work. (Copyright Registration of Websites and Website Content, Copyright Office, Circ. 66, last revised 9/2017).

Group registration through the Copyright Office has been a major issue of efficiency, cost, and procedure ever since I started practicing 14 years ago, and we’ve been a part of several pilot programs as the Office developed an online registration system and tested various group registration practices. Even so, registering multiple works at once cannot always be done despite the Copyright Office’s best efforts to streamline the process.

Another big issue has been whether libraries and other businesses can digitize books, and we’ve had major players, including the Authors Guild, weigh heavily on the issues in the courts and through advocacy.

There is an inherent major tension between society’s need to access knowledge through books and scholarly works and the protected interests of authors, institutions, and publishers to monetize their efforts for bringing these works into existence. It’s an issue in every corner of the arts, and the advent of the internet and digital files has made it all the more necessary for creators to think about preventing infringement and limiting access to an entire manuscript, while meanwhile trying to also develop as large as possible of a social platform to be able to reach an audience of readers.

Today’s market calls for a lot more collaboration even in traditional publishing in which the publisher looks for both great content and a writer who will participate in marketing efforts by leveraging a fan base, often through social media. The advent of fame through social media has meanwhile brought the FTC into the picture, as we now regulate and require disclosures to identify sponsored content from social media influencers. If you meet the definition of an influencer, receive a reader copy to review it, and then go on to say how fantastic it is, you just might have to disclose your relationship with the author or publisher.

Authors now have access to a lot more information on legal issues thanks to the internet, formal conferences, writing groups, and membership in professional writing organizations. For the most part, it is still difficult to negotiate changes to publishing contracts, but today’s authors are more astute and may pass up bad deals. There is also a lot more scrutiny comparing on-demand self-publishing services and private publishing options. Authors can join the Authors Guild, for example, and gain access to legal advice in addition to access to its resource library, member profiles, webinars, and industry discounts.

What makes you most proud of the work that you do?

I’m most proud of our legal community. No matter how challenging a case may be, we consistently identify individual lawyers and law firms willing to dive in and help our clients. Although the vast majority of our clients need short-term help, some more substantial impact cases come through our doors and require an investment of time. I’ve been absolutely floored in the past by the generosity of our volunteers, and their willingness to always step up to the plate and help artists. It makes me very proud to be a lawyer.

What essential piece of legal advice would you give to writers today?

Jerry Landay, an inspiring journalist and former University of Illinois professor and mentor, once explained to me that great writing is never finished. We just have to quit at some point, but can always come back to an article and improve it. I’ve adopted this as a bit of a calling card with contracts. I’ve never seen a contract I couldn’t improve, and I’d hope that writers look at legal agreements as editors.

Are the terms clear? Do the definitions wholly describe certain aspects? Does the contract tell a full story, informing you of exactly what your obligations are and when and how you get paid? I look for the same basics I would in any story and often teach contract basics by going back to journalism fundamentals of who, what, when, where, why, and how.

That said, there is no one-size-fits-all to contracts, and I somewhat cringe when I hear that a client borrowed sample forms from a friend or found something to use online without having a lawyer look it over and make any needed changes. Lawyers are highly skilled readers and writers, expert in interpreting the meaning of written language. Writers, no matter how talented, should rely on us to help just as they might look to an accountant to handle their taxes or go to a mechanic to fix a car. Writers should also never assume that a contract is entirely non-negotiable. If you propose fair and appropriate changes, it’s possible to get a better deal, even from the strictest publishers.

For more information about Lawyers for the Creative Arts, be sure to stop by their table at CWIP’s Fourth Annual Publishing Fair this Saturday, March 24 from 10:00 a.m. until 2:00 p.m. at Roosevelt University (430 South Michigan Avenue). Tickets for members, students, and seniors are only $20 each and non-members pay just $5 more at $25 each. We are hosting 20 exhibitors from the Chicago publishing industry which include academic presses, local presses, author and editor organizations, large corporate presses, and more. Bring your business cards and get ready to network!

Carrie Olivia Adams is a freelance literary publicist and the poetry editor for the small press Black Ocean. She is the author of Operating Theater (Noctuary Press 2015), Forty-One Jane Doe’s (book and companion DVD, Ahsahta 2013) and Intervening Absence (Ahsahta 2009).

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