An Interview with Creative Law Attorney Kathryn Goldman About Author Legal Issues

October 13, 2021

Christine: Here today to discuss intellectual property and other author legal issues, is attorney Kathryn Goldman. Kathryn is an intellectual property and internet law attorney who helps creative professionals protect their work so they can profit from it. She has helped countless writers, artists and creative entrepreneurs move from early-stage ideas to licensing their work or optioning their books and building their businesses. She is the editor of the website Creative Law Center. The Creative Law Center gives innovative creatives the business and legal perspective they need when making the move from artist to entrepreneur with understandable and actionable information. Welcome, Kathryn. Thank you so much for being here.

Kathryn: Oh, Christine, thank you for inviting me, I appreciate it very much.

Christine: I recently heard you on another podcast talking about all your creative pursuits, like painting. What came first for you, a passion for law, or a passion for creativity?

Kathryn: Art, creativity, came first. I grew up surrounded by artists. My mom was the dean of the Maryland Institute College of Art for 26 years. There were lots of lots of students around all the time making art. My sister is an artist, my brother is an artist, my husband is an artist. So creativity first, when I went to college, I majored in art history. Then I got out of college and I looked around and I said What am I going to do now? And I went to law school.

Christine: As far as author legal issues are concerned, what is the single biggest blind spot you believe that authors have regarding stepping in legal potholes, whether in your specialty, protecting their work, or otherwise? So what’s the single, single biggest legal blind spot that authors have? What are they not aware of that could hurt them?

Kathryn: That’s hard to answer, because it really depends on who I’m talking with at the moment. But, this week, and I don’t know if you’ve seen the article that was in the New York Times about the bad art friend. A woman used another woman’s letter in her short story almost verbatim, and it’s a big hullabaloo on Twitter. And there are like 2000 comments on the article in The New York Times.

I think that the biggest issue is inadvertent plagiarism, not being original. People have to really think about what they’re doing when they use other people’s creative work. I understand that creatives, borrow and use all the time, but when you do it, you have to be making something new, you have to be making something different.

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You can’t lift other people’s work and just drop it in your work willy nilly. Being original, and being intentional when it comes to borrowing ideas, or other people’s work.

I’m not going to say that that’s the biggest blind spot that writers have. It’s just that I have been thinking about it a lot this week, because of this story in the New York Times. The woman who took the letter, written by this other writer and put it in her short story, was operating from a position of arrogance about her writing. She thought she was better than the other writer, and therefore she could use that work.

Christine: You mentioned in your answer – “making it new or different.” Do you have a specific example of that, of being inspired by another person’s work vs. blatantly stealing it?

Kathryn: Making something new and different – you can use somebody else’s work, there’s the fair use exception to copyright infringement. If you’re taking a small portion of somebody else’s work, and you’re making it new, you’re making it different, you’re transforming it into something else.

There’s the memoir that was written by President Gerald Ford, after he left office. He wrote about why he pardoned Richard Nixon, the book was called the time to heal. The Atlantic got a hold of an advanced copy and they wrote a whole article about it, and they took a 300-word passage out of the book that summarized why Ford pardoned Richard Nixon. They argued that because it was embedded in this whole story of the Nixon presidency, that it was really fair use just taking this little 300-word segment.

This case went all the way up to the Supreme Court and the court said – “No, you took the heart and soul of the work. You didn’t transform it into something new and different. That is infringement.”

So, with transformation, you really have to move away from the original person’s work. You have to not take the heart and soul of it, only take the smallest amount possible to still have your message. Be clear. That is understanding fair use, and when you can use somebody else’s creative work and when you cannot is probably a blind spot.

Christine: What would have maybe been a better path for The Atlantic if they had wanted reference or be inspired by the heart and soul of that book without lifting it?

Kathryn: Well, instead of lifting the passage verbatim, they could have characterized it. They could have read it and then characterized what they read. The Atlantic, which is, essentially opinion, could have talked about what was driving the decision, in their view. They could have jumped inside Gerald Ford’s head and talked about how he was trying to heal the nation, that there was this great schism in the nation. They could have characterized what they read, rather than lifting the words.

Christine: Speaking of memoirs, one question I get a lot from my memoir authors is about the spectrum between total nonfiction and a creative retelling of the person’s life inspired by real life events. Total nonfiction, meaning naming the names, describing the events as the author remembers them, not holding back, telling it like it is and maybe praying that they don’t get sued. At the other end of the spectrum flat out writing memoirs as novels, often to avoid risking liability. How can a memoir author navigate the middle section between those extremes?

Kathryn: Well, you really have the answer buried in the question.

It’s risk tolerance. It’s how much can you stand when you put yourself out there. And it’s not just litigation. It’s the response of your family and your friends. It’s the social media backlash, once you put it out there. It’s the response of the family and friends of the people that you write about in your story. It’s really how much can you tolerate? It’s a really personal question, and it’s not always a legal question.

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The legal piece of it is that memoirs are imperfect. By the time you’re writing it, you’re looking back over what happened years ago, maybe decades ago. So it can’t be factually perfect. By its very nature, it’s going to be your or the writer’s opinion of what happened in the past. It’s going to be their view and their interpretation of what happened in the past.

In that context, as a lawyer, when I help writers of memoirs clear their work in order to reduce the risk of litigation, I look at it in that context. Like not stating a fact that could be defamatory that is couched as an opinion. Therefore, defamation is one of the risks. When you go through a memoir, you want to make sure that there aren’t statements of fact that could result in litigation.

The other piece to memoir is invasion of privacy piece. In most case, what makes a good memoir is revealing secrets, and those secrets could be the basis of a claim against the author. Analyze whether you are on solid legal grounds by revealing those secrets. Does that person have a right to privacy for that particular secret? Now, if it’s a criminal act that you’re revealing, they don’t really have a right to privacy.

But if in some other thing where they might have a right to privacy, then look at, what is the risk that there’s going to make a claim against you? Let’s say the memoirist changes the name of the people in the story, but keeps her own name as the author. Then the people in the story will know who she’s talking about, but the public may not. That reduces risk because the person about whom she is writing doesn’t want to come forward and say, “Oh, that’s me. And you shouldn’t have said these things about me, you shouldn’t have told people that I did all these things.” They’re less likely to come forward in that scenario.

It’s all about managing that risk. Internally and what can you take on externally? What does your memoir look like? And how does that trigger the law?

Christine: Yes, share your own inner secrets because obviously you won’t sue yourself. But externally, I think celebrities like Prince Harry must have a very high risk tolerance.

Kathryn: Celebrities are a whole different class. I mean, think of what he has been raised with. He has just been there. Also, what could he possibly say that we really don’t already know? That’s a really good point, too.

Christine: The next question comes from a member of my Ink Authors group on Facebook. They are curious about the process, and also opportunities that might come from selling the foreign rights to a book.

Kathryn: I have reviewed a couple of foreign rights contracts that have been brought to me by my author clients. Depending on what your genre is, and depending on what you’re writing about, they can be valuable. I have one friend, she’s not a client, but she’s the author of children’s books in 16 different languages. She has a series and it’s doing extraordinarily well in the foreign rights area. So do not underestimate that.

In terms of the steps in securing foreign rights deals, I cannot speak to that. That would be something for an agent, or the publishers are also instrumental in securing foreign rights because they lock them in in the publishing contract. But don’t underestimate the power of foreign rights.

Christine: You mentioned children’s books, are there other genres that you’ve seen with your clients that are more successful in obtaining foreign rights?

Kathryn: It depends on the book and the author. I think that in fiction, you’re going to see that thrillers are probably good in the foreign rights department. In nonfiction, business books, books about sales and business management, are pretty good in foreign rights, depending on you the cultural issues.

Christine: Finally, in sync with the show theme, your daily writing habit, can you share a bit about your own creative habits? Whether writing or creative or general productivity or otherwise, what habits do you have? And which ones are you working on?

Kathryn: My productivity habit is… I call it a journal, but it’s a cross between a to-do list, a project management list, daily appointments, and daily checklists. I map out my day – “Okay, this is going to take me 90 minutes.” I start the day with slotting the day.

What I do creatively as an outlet, is I paint. I’m a watercolorist. But I also consider my day-to-day work to be very creative. Before we got on this call I was working with a client who was very concerned that the pieces that he was sharing with a ghostwriter would be used by the ghostwriter in other works. And so we crafted language for the contract, that would make it very clear that the person could not do that.

Just the crafting of language and working with writers and artists, to listen to what their concerns are, and then creating contractual language or strategies that address those concerns so that they can move forward confidently to the next stage of their project. I think that’s very creative.

And then finally, my writing that I do in my emails and blog posts. I put a lot of creative energy into those things as well.

Christine: Kathryn how can listeners connect with you for any creative legal questions?

Kathryn: The website is creativelawcenter.com. I have a lot of resources for authors. On the website, I talk a lot about copyright, how to protect your work, how to work with other people and protect your work. I have a whole section on trademark and branding on my website for those authors who are really building their author platform and how to lock in branding. I talk about trademark for book series and things of that sort. And then I have business building resources for creatives. I also offer a membership program for folks who are building their business and we do monthly workshops. I have a large variety of form documents that can be customized and checklists and things of that sort in the membership, which really allows me to deliver legal services at scale in an affordable manner to creatives who are looking at every penny. Affordable and accessible is kind of my mantra.

Christine: I love that and hopefully my listeners and all the authors out there will check out your website. Thank you so much for being on the show today talking about author legal issues Kathryn.

Kathryn: you for having me. I really enjoyed it. And I’m so happy that I discovered your podcast. I love listening to it in the morning.