I have decided to take a short break from the afternoon’s writing activity to express my abject disdain for all those writers out there who insist on telling the rest of us how to price our books.
“If you price your book cheaply, you’re devaluing your work!”
“You get what you pay for!”
“Don’t you have any self-respect?”
“You’re ruining it for the rest of us who value our work.”
I have a message for you. It has to do with performing a physiologically impossible act.
On practically every writers group LinkedIn hosts, some stuffed shirt initiates this claptrap, and dozens of others jump aboard the We Are More Worthy! bandwagon. Ironically, a lot of them have books on Amazon priced around $9.99, with few or no reviews and rankings >1,000,000.
So, how’s that price workin’ out for ya?
To make matters worse, it is apparent from their comments that many of them have no understanding whatsoever of how ebook marketing works, how free or reduced-price promotions drive additional sales at higher prices, how they drive traffic to an author’s other work, generate reviews, recommendations and other social media exposure.
To all of those folks, I say do your homework and MIND YOUR OWN BUSINESS.
I shall now return to the press conference scene for Full Irish, wherein Shannon McGonigle Forté will reveal an important and influential Irish politician to be a sissy and a liar.
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Tags: ebooks, free, indie publishing, marketing, promotions
I have a bunch of short stories for sale on the various sites. None of them are bought, no matter what I do. So the heck with that. It’s time to give something away, from me to you – no bookseller in between.
Months back, there was another controversy involving an author who hunted down a reviewer and harassed her. It sounded like a wonderful idea for a short story. So here it is.
The building superintendent–an elderly man with rheumy eyes and a bad hearing aid–told Detective Marks he couldn’t get the picture out of his head, that harmless lady, face frozen in death, all of her fingertips cleanly removed.
Marks stood amidst tired furniture in the parlor of the man’s abutting duplex unit. He smelled cat food and chicken broth, and wondered if a window had ever been opened.
“Nope,” the poor fellow said as he tapped his hearing aid, “didn’t hear a thing. I just let myself in about 10:30 in the morning to fix a leaky faucet, and there she was.” The fresh memory of it brought more tears.
There she was, Lillian Rockwell and her lopped digits.
The man wasn’t that much older than him. Marks wondered if this was what he could look forward to in his own impending retirement. Living alone, talking to the cat, yelling at the television as he watched the world sink into chaos. At sixty and with his condition, his reflexes and energy were fading. He’d lost confidence, begun to hesitate in a job where hesitation got you killed. Living was far preferable to the alternative, even if he was just borrowing time. At least his daughter was back with him, for now.
“Did she have any visitors?” His eyes scanned the apartment, more from habit than suspicion.
“Don’t recall a single one,” the old man said. “I only know she taught the youngsters in school and sang in the choir at St. Vincent’s. Pretty young lady, but I never saw a single visitor.”
Marks ran the old fellow through the usual questions, thanked him, gave him a card, and rejoined his partner at the crime scene next door.
Teresa Bond watched the coroner’s men put the body bag on a stretcher and wheel it out. The forensic team continue to comb, dust and photograph.
“What’s you’re first impression?” Marks asked her.
Less than a month on the job and on her first murder case, the upstart rookie appreciated being asked. An aspiring FBI recruit who’d dropped out to return home and care for her dying father, she hitched on to the local force and partnered with the grizzled veteran for the final lap of his sterling career. She nodded at a well-worn coffee table, where a tea tray held two empty cups and a plate with crumbs.
“She had a visitor, but someone she knew, maybe. They had a cookie or two, and the cups are empty, so the visitor stayed for some time.” She nodded to the corner. “The second chair there appears recently sat-in.”
“Very good.” He bent over the plate and sniffed it. “Macaroons,” he said.
“Ugh, I hate macaroons. The smell of almonds makes me ill.”
She blinked and shook her head. “Old story involving Spring break and a bottle of Amaretto. Not my proudest moment.”
“Say no more,” he said. “So, no sign of struggle or forced entry.”
“None.” She nodded toward the back of the apartment. “The kitchen is immaculate. There’s no sign of blood anywhere else but here, in the chair where she was found.”
Found reclined and duct taped into an old, overstuffed chair, all ten fingers stumped at the first knuckle, neat, dark circles of blood on the worn but clean carpet beneath.
“What’s the ME’s first impression?”
“Probable poisoning,” she said. “The surgery done shortly after death.”
“To spare the victim the pain?”
She cringed. “Or keep the screaming down.”
They glanced at the empty cups and plate.
“Anything about the wounds?” he asked.
“Cuts were clean, made with some degree of care, maybe even knowledge of anatomy. Kitchen or gardening shears, maybe. Not a knife.”
“Kitchen or gardening shears,” he said.
Marks and Bond divided the interviews of Lillian Rockwell’s former workmates at the charter school where she’d taught for thirteen years. Marks took the Principal, Walter White. Bond started with the faculty.
According to White, Miss Lillian, as the children called her, was a model of perfection. Even tempered, empathetic, kind to all, and dedicated to her profession.
“Miss Lillian was the teacher every principal dreams of having,” White said. His eyes were red and tired, his thin hair askew. “She loved the children and they loved her.”
“What did she teach?”
“Our school runs through seventh grade. She taught English literature and expository writing for the sixth and seventh grade students. And she taught a class in computer science.”
“Did she ever have any problems with difficult students?”
“We have no difficult students, detective. All of our students are highly motivated. Some of them require more help than others, but Miss Lillian was patient and supportive of them. She expected them to give their best, and she would not tolerate laziness. They responded. We have had many ESL students go on to top boarding schools on scholarships. She was simply the best.”
“Did she socialize with the other faculty outside of school?”
White frowned and thought a moment. “I’m not aware of her social activities, detective. We have a long day here, and aside from the occasional holiday party, which involves cookies and punch, I don’t know what she did outside of the school.”
“You’ve never seen her with a boyfriend, that sort of thing?”
He smiled wanly. “No, I’m afraid not. I simply have no way of knowing.”
“You said she taught computer science?”
“Yes, very much an introductory class. Familiarity with the standard Office suite, basic elements of HTML, blogging, social media. That sort of thing.”
“I don’t know much about that area.”
“I am barely proficient myself, as my faculty loves to remind me. You might have better luck with her colleagues.”
“Let’s see if you’re right.”
Principal White ushered Marks to the faculty lounge, where Bond was interviewing three individuals, two female, one male. They looked to be in their late twenties to early thirties, sitting in a row on the forward edge of a well-worn couch, hands fidgeting. Bond faced them, seated in a school chair built for a child. Bond introduced them to her partner, and continued her inquiry.
“You said Miss Lillian was an avid reader?” she asked the woman named Miriam, who wore Birkenstocks, a sweater vest, and close cropped brown hair.
“Yes, voracious. As much as a novel a day, sometimes.”
“Goodness, that’s a lot,” Bond said. “What did she read, specifically?”
“Cheesy romance,” said the other woman, Alice, in the flowery dress.
“Cheesy romance?” Marks asked.
“Yes, as in bodice rippers.” Bond blushed.
“And a lot of ebooks,” Miriam said.
“Ebooks,” Bond repeated.
“Yes,” Miriam said. “Cheap, ninety-nine cent ebooks. Mostly from Amazon.”
“Amazon?” asked Marks.
Bond regarded her partner as though he was stepping out of a cave. “Yes, Amazon. As in, the largest bookseller on the planet.”
“I had no idea,” he said.
The three teachers looked at Bond with sympathy.
Bond glanced at Marks. Her eyes said shut up. To the women, she asked, “Did Miss Lillian spend any time at school on the Internet?”
Miriam and Alice shared a confounded look and shook their heads.
“She didn’t have a weblog or use social media?” Bond asked.
Edward in the cardigan sweater said, “We don’t really have time for any of that here at school.”
“Did you socialize with her outside of school?”
More empty looks. “We pretty much keep to our own lives, detective,” said Miriam. The others nodded.
Miriam, Alice and Edward knew precious little about their workmate, except for her reading habits, which had been discerned through casual lunchtime conversations. That and her ever present Kindle.
As the detectives walked to their vehicle, Marks turned to Bond and asked, “Bodice rippers?”
“I am not explaining,” she said, her cheeks flushed.
On the way from the charter school to the station, Marks brought his protégée back to the victim’s apartment for another look.
“What have we learned?” the veteran asked.
“We learned that she was an avid reader of ebooks and owned a Kindle.”
“Ebooks being electronic versions of printed books, read on a device called a Kindle.”
Bond stared at her partner and grinned. “Aren’t you proud of yourself?”
“I am not a complete Neanderthal.” Marks hesitated, shifted to his other foot. “I use the public library.”
She smiled and shook her head. “You’re forgiven for missing the past decade, detective.”
The remark stung, but he kept quiet. “So, have we found her Kindle device?”
Bond pulled a sheet of paper out of a file folder and passed it. Marks scanned the inventory.
No Kindle device.
“Do you notice anything else?” he asked.
She appreciated his invitation, even if she did feel slightly patronized. “Yes,” she said. She moved to the sitting room where Lillian Rockwell had been found. She pointed to an end table in the corner, next to a clean, slightly threadbare couch. “See that?”
On the back corner of the table, partially hidden by an oversized lamp, a small, thin black box sat, a wire running from the back down to the floor and into a wall fitting. “Do you know what that is?”
Marks squinted, like the reduced light would bring him an answer. “Have something to do with the Kindle device?”
She stifled a smirk. “It’s a wireless router. It allows a user to access the Internet without being plugged into a hardwire.”
“Okay,” he said. “So where’s the computer?”
“Where’s the computer? Where’s the cell phone? Where’s the Kindle?”
Marks scanned the sheet. “Nothing here.”
They paced through the apartment again. No other Internet outlets, just the one on the floorboard in the sitting room. No cable television, telephone outlets.
“She either didn’t watch any television or watched everything on her computer.”
“You can do that?”
Bond frowned. “You really do live in the Stone Age.”
“I was born in the Stone Age. I’m entitled to my ignorance.”
“You can watch practically anything you want on a computer,” she said. “And you don’t need a land line telephone anymore. Just a cell phone.”
“I’ll be damned.”
They moved into the kitchen.
He opened an upper cabinet door.
“What are you looking for?”
“The cookie package. She served macaroons. There’s no package.” He moved from cupboard to cupboard. “The lady has no visitors to speak of. Except this day, she has a visitor, and she buys macaroons for the occasion. No other cookies, sweets, chocolate, candy in the house. Look at this,” he said, pointing into a cupboard full of foodstuffs. “Quinoa? What the hell is quinoa?” He began taking the packages down one at a time. “Gluten free rice pasta. Gluten free soup. Gluten free bread.”
“She’s allergic to gluten. Macaroons have no flour.”
Marks nodded and smiled. “She bought those macaroons because she could share them with her guest.”
Bond smiled back. “She was expecting someone she knew, and she had put out the welcome mat.”
“And this someone she knew poisoned her, cut off her fingers and stole her computer, her telephone and her Kindle device?”
“It’s a theory,” she said, a little defensively.
He rummaged through the trash, pulled out a balled up, white wax paper bag, un-balled it, opened and sniffed. “Yup, this was the bag all right.”
“What if the guest brought the macaroons, knowing she was allergic to flour?” she asked.
He frowned. “But why would someone bring cookies to the victim before murdering her?” Marks eyes scanned the kitchen one more time.
“No logic in irrational behavior,” she said.
“I’ll find the bakery that sold the macaroons. You see if you can discover what she’s been buying on Amazon.”
“You think her buying habits might be connected to this?”
“We have nothing else to go on but bodice rippers and macaroons. Might as well chase down every lead.” He turned to leave, and hesitated. “Some day, you’re going to have to explain this ‘bodice ripper’ thing to me.”
Bond grimaced. “Not on your life.”
According to his sources, a popular bakery located a mile from Rockwell’s apartment made the best macaroons in the city. There were other bakeries closer that may have made them, too. But Charlie Marks had a hunch that if Lillian Rockwell went to a special effort to entertain a guest, her reportedly kind and generous nature would compel her to find the best macaroon she could.
He followed the smell of baking bread for a half-block to Giordano Bakers & Confectioners, Est. 1926. He entered, and spotted a burly, balding middle-aged man in a white apron behind the counter, speaking on the telephone in an accented voice with a pitch like he’d swallowed a party favor.
Marks browsed while he eavesdropped. He examined a plaque on the wall with a sepia toned lithograph of a handsome Italian man with a sweeping handlebar mustache. Text below said the business had been in that same location since Pasquale Giordano opened the store two years after landing at Ellis Island. Glass cases lined the walls, full of confections, cakes, pastries and cookies. The air was sticky with sugar. He scanned the cases until he found a stack of macaroons. At three bucks each, they ought to be good.
The man finished his call, asked Marks, “What can I get youze?”
“You related to Pasquale?” Marks asked, nodding toward the plaque.
“Grandson, Paulino,” he said. “Been in charge twenny-tree years,” he wheezed.
Marks kept up the small talk long enough, ordered a half-dozen macaroons. As Paulino put them in a bag and rang them up, Marks identified himself, showed his badge, explained his true mission, described Miss Rockwell, the macaroons, and the likely date of her visit.
The baker scowled briefly. “You know how many people buy my macaroons? I sell at least tree dozen on a bad day. You think I can remember every customer?”
“I know this is a long shot, but it’s very important. Only two cookies, maybe three. One person.”
“My memory, she’s good, but you asking a lot.” He stared at the macaroon plate. “One lady, she never been in before, but not a small lady like you describe. Large woman.” He raised his hands above his head. “Big hair, like old style. What you call it, beehive? Not very attractive.” He shook his head at the shame of it. “She ask for two macaroons. She tell me she buy the macaroons for a special friend.”
“Friend or visitor?”
“I tink she say friend.”
“Did she say who the friend was?”
“Hey,” he said, “I’m so nosy I ask new customer her personal business?”
Marks quizzed him a little more, but Paulino’s good memory was exhausted. He thanked the baker for the macaroons and headed back to the station. He ate one of the macaroons on the walk, and left the bag on the duty sergeant’s desk, so the smell wouldn’t bother Bond.
At her desk, Teresa Bond’s forehead was fixed in deep wrinkles, her eyes pinched as she peered at her computer screen. Marks took his seat at the desk facing hers, waiting for her to look up.
“What’s so interesting?”
Bond made big eyes and fanned her face. “Cheesy romance is not what I call this.”
“What is it?”
“The stuff in Miss Rockwell’s Kindle library. It’s smut. They call it ‘erotica,’ but it’s porn in my book. And you want my frank opinion, anyone who writes that badly deserves a lot worse than a one star review.”
Marks gaped at his partner.
“Hey, I had to look, okay?”
“Like watching a train wreck?”
“How’d you find it?”
“I faxed a subpoena to the Amazon legal department this morning, spent twenty minutes on the phone with one of their lawyers. Amazon handed over her account password, I’ve been reading for two hours.”
She tossed a pencil at him. “No, her reviews.”
“Under the pseudonym, ‘Marquesa de Sade.’ As in Marquis de Sade, it seems.”
“You know the Marquis de Sade is where the word ‘sadism’ comes from?”
“Since it happened in the 17th century, I am aware of it.”
“Well, Miss Lillian might have been a sweet and loving teacher and a choir-singing wallflower in real life, but when she reviewed books on Amazon, she was a bitch on wheels.”
“She’s written over two hundred one-star reviews in the last year alone. All on erotica.”
“One star reviews.”
Bond rolled her eyes again. “That’s right, my favorite Luddite. A one-star review is the lowest grade a reader can give a book. It’s like a spit in the eye. Some can be pretty harsh, but Miss Lillian’s were blistering.”
“So bad they’d incite murder?”
Bonds eyes focused on the screen. “Here’s one: ‘the author has an unfortunate habit of describing the act of copulation as though it were a lab exam in an anatomy class. Rather than being aroused, I was compelled to scrub my hands.’”
“Here’s another: ‘I don’t know if the typos and spelling errors are the sign of a poor craftsman or a sticky keyboard, but it’s obvious where her priorities lie, and it isn’t in her prose.’”
Marks blushed, speechless.
She pushed away from the screen, into the back of her chair. “Is it still that hard to imagine?”
“Of course it is. A few sharp barbs, vulgar as they are, should not incite mayhem and murder.”
“Well, imagine the women that write this stuff,” she said.
Marks felt as though he were in quicksand. “I wouldn’t know where to start.”
“Look at it this way. You’re a desperate housewife and mother, trapped in your dreary little world, shuttling kids and cleaning up after a slob of a husband. All you have to escape your miserable life are trashy novels. Then one day, Amazon comes along and tells you you, too, can become a bestselling author. So you start writing and publishing your own erotic fantasies. Like that Fifty Shades lady.”
“Fifty Shades lady?”
“Never mind. So anyway, against all reasonable expectation, people start to buy it. Your sales climb. Your blog gets hundreds of visitors. Your Facebook fans and Twitter followers expand. You begin to see a light at the end of the tunnel. This is your road out of despair. Like winning a lottery ticket. You’ll be rich and famous, finally able to tell that lunkhead you married to hit the road. Then some anonymous critic trashes your novel. You panic from the fear that one review will kill sales, and your dreams along with it. You’re not going to let someone kill your dreams.”
Marks took in Bond’s impressive tableau. “It’s one thing to give someone a piece of your mind. Another entirely to poison her and hack her fingers off, don’t you think?”
“Maybe she brought the cookies as a bribe, try to talk the evil reviewer into deleting or changing the review. Lillian refuses, the author snaps.”
“Possible, I suppose,” he said.
Bond returned her eyes to the screen. “Well, it’s the best lead we’ve got right now, so I’m inclined to follow it up.”
“What’s your plan?”
“I’m identifying the author of every book she reviewed, then I’ll determine their geographical location, chart them according to proximity, and start at the top.”
“You pursue that, then. I’ve got another idea.”
Bond peered over the top of the laptop screen.
“I smell almonds.”
With a little help from an assistant librarian he guessed to be around twenty-five, Marks found what he was after in less than an hour. He left with a grainy print-out picture of a doughy, mid-fifties woman with mountain of hair, wearing a dress that looked like bathroom curtains. A quick return visit to the bakery and Paulino confirmed her identity. A stop at the Town Clerk’s office and he had an address.
Gladys Huff, pen name Ruby Diamond, opened the front door of a forlorn crackerbox on a crowded cul de sac at the edge of town. The house itself was shabby and faded, but the rose bushes in the front had been given obvious care and attention.
Marks introduced himself, displayed his badge, and observed a brief look of shock on Gladys Huff’s face.
“Would you mind if I asked you a few questions?”
The face relaxed into a wry smile. “I didn’t expect you for quite some time,” she said, and invited Marks to join her for tea.
Teresa Bond clicked save on an excel file of 217 authors, ranked by distance from the Rockwell apartment, Amazon rankings and number of one star reviews. She was second-guessing her methodology and capacity to execute it when the desk sergeant notified her that her partner had a suspect in Interview Room 3.
“If you would like to join him,” he said, with a sarcasm she didn’t appreciate.
She saved her file, tucked the laptop under her arm and hurried down the hallway to the door with a “3” stenciled on it. She knocked lightly twice and entered a small room of bare white walls, linoleum floor and blinding fluorescent light. Marks sat across a bare table from a plain woman with cotton candy hair and mascara-streaked rivers running down puffy cheeks. Marks introduced her to Ms. Gladys Huff.
“Diamond, please. Ruby Diamond,” she said in between sobs.
Bond slid into a plastic seat along the back white wall. Her partner faced Ruby Diamond, hands folded neatly on the tabletop, but relaxed. He asked her questions in a warm, sympathetic voice, as a story listener would ask the storyteller in the course of the telling.
“I got the idea from A Pocketful of Rye by Agatha Christie,” she said, as though she was sharing a mischievous secret at her kitchen table. “I had stalked the subject for some time before I hatched my diabolical plan. In several trips to the market, she never bought any bread products. I wisely deduced that she suffered from Celiac’s Disease, and I was struck by an inspiration.” An eyebrow rose to punctuate her cleverness.
“Macaroons,” Marks said.
Macaroons, Bond said to herself.
“You wrote about macaroons, Ruby,” he said, as though he had discovered an obscure truth instead of a big, fat confession. “And how cyanide has an almond smell.”
“I most certainly did, detective Marks.”
“Call me Charlie.”
She reached across the table and patted his hand. “Of course, Charlie. Yes, I did write about macaroons. They were employed in a–ahem–shall we say, naughty manner in my bestseller, Twisted Sheets.”
“You wrote about it on your blog, too” he said.
“I did indeed,” she said, stealing another pat, rewarding her newest fan for his knowledge of her work. “I remember the moment it occurred to me that macaroons were one of the only cookies the Marquesa might eat.”
“And that it would-”
“Hide the smell of the cyanide! Yes, how delicious!”
“What was that feeling like?”
Ruby Diamond’s eyes scanned the ceiling for inspiration. “Poetic.”
Her eyes followed something invisible. “Yes, poetic. A sadist tortures and murders as though she is invincible. It requires a special kind of skill–only the skill of an expert at her craft–to create the irony, the sense of mischief, in dispatching an evil adversary.”
Marks paused to give Ruby Diamond a chance to rest. Bond opened her laptop to inspect her database. Ruby Diamond was ranked 37th. She would have gotten to Ruby next week at the latest. That realization did not make her feel better.
Marks took a moment to scribble a brief note on a pink post-it, and handed it to Bond. She glanced at it, folded it in her hand. Ruby Diamond smiled at Marks. “You know, if I’d known you were going to be such a lovely man, I’d have brought you some macaroons.”
“But you wouldn’t lace mine with poison, I hope,” he said, feigning horror.
She smiled crookedly. Another pat of his hand, this time lingering. “Of course not, Charlie. Au contraire, mon ami.” Her eyes waited expectantly for some reaction.
“You didn’t think Miss Lillian was a nice person, did you?” he asked.
“You mean the Marquesa?” her face soured. “The Marquesa was guilty of murder. She got her just desserts.”
“Who did she murder, Ruby?”
“She murdered a woman I used to know.”
“Who is that, Ruby?”
“Her name was Gladys Huff.”
“You’re not Gladys Huff?”
“I am Ruby Diamond. Gladys Huff was one of my fans.”
Bond took the note back to her desk and made the call as instructed. Twenty minutes later, she watched as Marks walked Gladys Huff to the rear door of a waiting ambulance as though he was escorting her down the Red Carpet.
Teresa Bond sat on the back deck of the modest suburban home, nursing her one glass of wine. “How did you figure that out so fast?”
Marks would not have shown up a rookie partner like this in the past. But she was no ordinary rookie partner, and he had limited time left to create mischief and leave her lasting memories.
“The gal at the library explained ‘keywords’ to me,” he said. “We started with macaroon, garden, and cyanide. Brought me right to her blog. That Google is something.”
Her forehead wrinkled. Why hadn’t she gotten there first?
“Twenty minutes on her blog proved you one hundred percent correct.”
“Proved me correct?”
“Yes, when you described the self-publishing erotica writer. You couldn’t have described Gladys Huff better if you’d have given me her picture. Then I saw the rose bushes.”
“The rose bushes,” she repeated.
“Yes, the perfect rose bushes in front of the shabby house. While you were doing your research.”
Bond stared back blankly.
“Kitchen or garden shears, remember?”
Of course she remembered.
“She handed over the pruning shears before we left the house,” Marks said.
“You’re twisting the knife now.”
The veteran sipped his iced tea. “Remember, it’s not the information that solves crimes, it’s what you do with it.”
Bond rose from her chair, sauntered over behind Marks, rubbed his shoulders, bent down and kissed him on the cheek.
“You’re such a smart dad. I have so much to learn from you.”
“Not until you explain bodice ripper.”
If you enjoyed this story, why not tootle on over to Amazon and pick up this really neat volume of more shorts, Tight Spots? The first person to leave a review on that lonely boy will receive a coupon code for a free audiobook version of Diary of a Small Fish.
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Tags: book reviewer, murder, pete morin, short story
I have come into possession (legally) of a hatful of promotional codes that can be used on Audible.com to download the audiobook of Diary of a Small Fish – for FREE!
All of the book marketing gurus urge that these be used to generate sales of the ebook version. Run a contest, they say. Well…if you get a free audiobook, why would you buy the ebook? What do those gurus know, anyway?
This is your invitation to participate in the first, last and only Give a Man a Fish Contest.
I will give a FREE promotional code to the first twenty (20) people who email me at this email address: firstname.lastname@example.org. All you have to do in return is leave an honest review on Amazon! What a deal, huh? Okay, so technically, this isn’t a contest, it’s a race.
I should entice you further by mentioning (again) that my narrator, Keith Sellon-Wright, is a very experienced television actor with a long and impressive list of credits. He also has a cool voice and a sharp attention to the humor that weaves through Small Fish.
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Tags: audiobook, diary of a small fish, free, keith sellon-wright, promotion
Hardly a week goes by without a discussion on the Internet about the legendary “poor man’s copyright.” This theory posits that an author may prove he is the creator of a work at a particular point in time by mailing himself a copy of the work, which is kept in the sealed envelope until such time as it may be needed. With the near ubiquity of email and the use of the Internet (especially by authors intent on selling their work), the old mailing tactic might just as easily be employed by one emailing himself a file.
With the advent of the Lanham Act, such quaint tactics are no substitute for registration with the United States Copyright Office, a process that takes minutes and costs only $35.
Nevertheless, the time may come when an author whose work is unregistered would discover her novel to have been stolen – perhaps by an unscrupulous beta reader – and fraudulently registered. Upon discovery, that unfortunate author might seek to register her own manuscript (as she must in order to maintain an action for infringement), which the USCO will not approve in light of the prior registration. Alternatively, the fraudulent author might (with breathtaking temerity) maintain an infringement action against the true creator.
How would the victimized author fare in her quest to prove she is the original artist?
In one online discussion recently, a fellow insisted (obstreperously, if an ad
jectiveverb is useful) that the victim’s testimony about self-mailing her manuscript would be “blown out of the water with ease” by any half-assed lawyer schooled in copyright law. Why, such a process is rife with fraudulent possibilities itself. Highly unreliable. Of no probative value. Laughable. Any lawyer who argued to the contrary was a charlatan, an incompetent boob.
Well, this was quite a challenge, maintaining one’s cool in an Internet forum against the insistent claims of one with little to no knowledge of evidentiary law.
Alas, I could find no precedent in the federal caselaw database that touches on this issue, although there are plenty of cases that discuss the presumptions that attach when a package is mailed to the correct address, etcetera. In the copyright field, there is no exception made against any particular method of proving the existence of prior work. Evidence is admissible or not, and given whatever weigh a judge or jury deems appropriate. The poor man’s copyright, whether by US mail or electronic mail, suffers no more or less scrutiny than any other evidence of creation. One would presume in this day and age that multiple prior drafts, Word-based time-stamps, participation in writers’ groups, etc. would represent far stronger and better evidence of creation than the PMC. But what would happen if those avenues of proof were unavailable?
With a few hours to spare on a glorious day, I put on a black robe and played Judge. Here’s my decision:
UNITED STATES DISTRICT COURT
DISTRICT OF LIBRA
MEMORANDUM AND ORDER
The Plaintiff (“Newsome”) holds a copyright registration for her novel, “Sex Life of Bees,” which she registered with the United States Copyright Office on December 11, 2010. She brings this action for injunctive relief and damages under [statutory reference] against the Defendant (“Oldham”), alleging that the Defendant’s unregistered novel, “Bee Sex,” infringes on her copyright.
In response, Oldham counterclaims, asserting that Newsome’s registration is fraudulent, and that the United States Copyright Office (as third-party Defendant) should revoke the registration and approve her countervailing application. Oldham claims that, contrary to Newsome’s registration statement, she, not Newsome, is the true author of the work.
This case presents the issue of whether proof of Oldham’s so-called “poor man’s copyright” is sufficient to defeat the registration of Newsome’s work on the basis of fraud, entitling her to dismissal of the Complaint and judgment on her counterclaim.
The Defendant, a self-confessed “Luddite,” is an author of fiction. Despite the meteoric rise of digital publishing and the almost ubiquitous use of computers for the creation of word documents such as novels, Oldham relies on an antique mechanical typewriter to produce her work, and does not use a computer for correspondence purposes (i.e., email) or to “surf the internet.” She testified at trial that she places a time and date notation in the upper-left corner of each successive draft of her manuscripts, and only when she has completed her manuscript does she share the work with others, known as “beta readers.”
In this instance, Oldham shared a completed manuscript of “Bee Sex” with three individuals, whose names are immaterial here. What is material, however, is that one of the recipients of the manuscript is the cousin of Newsome, a fact of which Oldham was unaware until after discovery commenced in this action. Oldham did not mail these drafts, but hand-delivered them to the recipients during bi-weekly “writers group” meetings, and received from them in return those very drafts, with the beta readers’ hand-notations.
Unfortunately for Oldham, none of the “beta readers” were available to testify in this matter, as they have all passed away. Against the Plaintiff’s hearsay objection, the Court has admitted the several draft manuscripts containing the hand-written notations of her deceased beta readers, as they have not been offered to prove the truth of the comments or the manuscript, but only the fact that they were made. The drafts are admissible, and the Court has given them weight as to the fact of drafts in existence at the times Oldham stated; but the Court makes no finding as to the identities of the recipient beta readers.
The sole remaining – and principal – evidence of Oldham’s claim that she is the author of the work is her testimony, supported by evidence, that she mailed herself a copy of the final, completed manuscript on January 3, 2010 – eleven months before Newsome registered her copyright in the work.
Newsome argued strenuously that Oldham’s “poor man’s copyright” was unreliable, inadmissible, and of no probative value in determining whether Oldham had indeed completed the manuscript as of the date of mailing. The thrust of his argument might have been persuasive, based upon the lack of any other evidence that would support the date of creation Oldham claims. But Oldham’s testimony, and that of her family, regarding her aversion to computers, was credible and persuasive.
Oldham’s testimony regarding her mailing the manuscript, and the sealed manila envelope with postmarked date, was sufficient evidence to carry her burden of proof that the manuscript contained in the envelope existed at least at the time it was mailed.
Newsome’s attacks on the authenticity and reliability of the mailed envelope and its contents miss the mark. Her expert witness on the type font and ink used by Oldham’s typewriter did not carry her burden of disproving that Oldham’s manuscript was typed when she claimed. The thrust of his testimony was simply that it was “quite easy to reproduce” the font and ink. Under cross-examination from Oldham’s counsel, the expert acknowledged that he could not state with any degree of professional certainty that either the ink or the font were, in fact, reproduced, only that it was possible.
Likewise, Newsome’s experts in postal procedure, envelope sealing glue and mailing anomalies failed to persuade this Court that the mailed manila envelope was more likely than not a fabrication. It is not enough for an expert witness to establish that a package could have been fraudulently procured, that Oldham could have mailed herself an empty package, complete with excessive postage, and inserted the manuscript after the fact, in effect, back-dating her claim of prior ownership. Newsome’s burden is to show by a preponderance of evidence that Oldham did, in fact, manufacture this evidence. She failed that task by a wide margin.
Newsome’s counsel would have the Court believe that with forethought, Oldham mailed herself an unsealed empty package, and held onto that package until such time as Newsome sued her, when she inserted a fake manuscript for the purpose of defrauding this Court. Absent a shred of tangible, admissible evidence to support Newsome’s outlandish theory, Oldham carried her burden of proof that the mailed package was authentic. Plaintiff’s counsel is advised to exercise heightened discretion in his attention to his obligations under Rule 11.
In order to demonstrate copyright infringement, Oldham would have only to demonstrate that Newsome had “access” to Oldham’s manuscript, and that Newsome’s work was sufficiently similar that a copying of Oldham was more likely than not [citations omitted]. Oldham’s testimony that she had shared her manuscript with Newsome’s cousin, and Newsome’s admission that she and her cousin were business partners, is sufficient under the Lanham Act to carry Oldham’s burden of proof that Newsome had access to Oldham’s prior work.
As for similarity, there is no doubt. This is not a case of borrowing. It is a case of wholesale theft. The verbatim identicality of vast portions of Oldham’s work in Newsome’s leaves little doubt in this Court’s mind that Newsome could not possibly have fixed so many words in such exact duplication without having seen the original work. This striking example of plagiarism and intellectual theft supports further the supposition that Newsome in fact copied Oldham’s work.
The Plaintiff’s application for injunctive relief is denied, and her Complaint is dismissed with prejudice.
The Defendant’s counterclaim is allowed. The United States Copyright Office is ordered to cancel the registration of The Sex Life of Bees and to process Oldham’s application for registration of “Bee Sex” in the ordinary course.
While the Court admires the Defendant’s steadfast aversion to contemporary technology and devotion to the “old ways,” the Court cannot, unfortunately, allow her ideological beliefs to exempt her from longstanding precedent with respect to asserting a copyright infringement claim. Her registration must, if approved, be approved currently. The Court has no jurisdiction to award her relief open to registrants until the work is, in fact, registered. Should Newsome withdraw her work from the marketplace prior to Oldham’s registration, no infringement action shall lie.
The Court retains jurisdiction of this matter pending the application of Oldham for final dismissal. Oldham is awarded double costs.
 Applicable precedent dictates that the application for registration is sufficient to confer standing on a party challenging an existing registration on the basis of fraud.
 The “poor man’s copyright,” as asserted here, involves the use of the US Mail as a means of proving that the contents of a certain envelope were in existence at the time stated on the postmark. [citations omitted]. Although the matter has been debated and discussed ad nauseam on social media websites [citations omitted], this Court is aware of no precedent in which the process has been adjudicated within the context of copyright litigation.
Filed under: Uncategorized | 12 Comments
Tags: infringement, poor man copyright, publishing
A few weeks have passed since Susanne and I announced our collaboration, and I wish to report that the process so far has been superb.
Through a series of emails and Skype conversations, we have tweaked and embellished the plot and put up >10,000 words. At this rate, we’d be done with a draft by the end of August. More importantly for me, though, is that we have a road map that shows me the signposts ahead, and I feel no anxiety that I may take a wrong turn and end up hip deep in a peat bog.
So, here’s a bit about our story:
Finola Murphy is a political reporter for a Dublin newspaper. Shortly after a friendly TD (member of Irish parliament) tells her he has some sensitive information to share with her, he is pushed in front of a train on his way to work. Finola knows enough to suspect that her friend had some information implicating a high-ranking member of the Irish legislature (the Oireachtas) in some sort of corruption. Devoted to her friend and his widow, Finola is keen to solve the murder.
At the same time, Paul Forté has a new client, a software company in Massachusetts that is involved in a contentious bidding process for a lucrative sate contract. His 800 lb. gorilla competition is an Irish software company whose Boston lobbyist (a former colleague of Paul) has enlisted the assistance of some powerful politicians to help it get the contract – by whatever means necessary. Paul needs to find out where the fix is, and prevent it from happening.
The story bounces back and forth between Ireland and Boston, as Paul and Finola each investigate their own ends of the story until they discover their common interests and combine forces. The point of view alternates between Finola and Paul (in 3rd person).
Influence peddling, blackmail, bid rigging, more murder, and a satisfying climax ensue (along with am amusing relationship between Finola and Shannon).
The story development has occurred almost without effort. The collaboration has been easy, free, and (so far) without disagreement. And it’s a great deal of fun!
When I first registered as a member at Authonomy in late 2008, I had no idea what to expect. The friendships and contacts I made there have been a constant source of satisfaction and pride since then – and this is the latest example. I can hardly wait until we have something to show you.
Filed under: Book Marketing, crime fiction, Indie, law and fiction | 6 Comments
Tags: indie publishing, ireland, paul forte, political thriller, susanne o’leary
Well, there’s an old saying about not knowing from whence your next opportunity may come.
Then one day my little Facebook inbox jingled, and I opened a note from an old Authonomy friend, suggesting that we talk about the idea further. We did so, emailing back and forth for a solid week. By that time, we had worked out a decent outline for a crime/mystery story involving political corruption in Ireland and Boston. And today, with Chapter 3 underway and our business agreement set, I am thrilled to announce that my co-author for the project is none other than Susanne O’Leary!
Susanne is not a man, she is not American, and her preferred genre is romantic comedy. Go figure. But I must say, I’ve read three of her 13 novels, and there is no mystery to her success as an indie author. She has a great sense of humor, draws characters superbly, and most important, she drove me through a complete story line in 7 days when it would have taken me six months on my own. The ease with which we found a mutually entertaining subject was refreshing. Apparently, the Irish love their political corruption as much as we Bostonians
More importantly, though, she promises to keep me focused on the finish line. We are committed to having a first draft completed by September 1.
I’d like to go on gushing about how excited I am about this, but truly, I’d rather get back to holding up my end of the bargain. So let’s hear it for Susanne, and everyone raise a glass and say a prayer that it all goes according to plan!
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In this Sunday night’s (May 11th) episode of the wildly popular Mad Men, the producer and narrator of Diary of a Small Fish (audio), Keith Sellon-Wright, makes his first appearance. He will play a character in a scene about which he cannot say a word. He points out that it’s always good when his scenes end up on-screen instead of in the trash can.
Keith’s resume is truly impressive, and Mad Men is the latest in a string of his high profile appearances, like Scandal, Vegas, Parks & Recreation, The Mentalist and Nip Tuck (to name a few)
I am wishing the best for Keith. He’s a fine gentleman, a great actor, and a perfect voice for Paul Forte. Break a leg!
 Note: I use “trash can” in the desktop icon sense, not where actual household trash is deposited. I use this in preference to “the cutting room floor,” which people who know these things (like Keith) tell me a thing of the past, an anachronism, a relic.
Filed under: Book Marketing, Internet, Peter Morin | 2 Comments
Tags: acx., audiobook, diary of a small fish, keith sellon-wright, mad men, mentalist, scandal