Do You Know Who You Are?

30May12

I’ve had a most unusual month.

A few weeks ago, I was involved in a very scary car accident. I was fortunate not to suffer serious injury , but I did experience the trauma that comes with the life-threatening incident. And that blasted “whiplash” that keeps a lot of lawyers in business.

In that frame of mind, I pursued my usual routine (or tried to), which includes occasional visits to discussion threads on the various LinkedIn writers groups. What I witnessed there made my car accident look like a bump in the night. A discussion purportedly focused on how one gets an agent, or if one is even necessary (a thread that had already surpassed the 3,000 comment mark) turned as nasty as any thread I’ve ever seen in an online community.

The precipitant to this insanity (I choose the word carefully) was an individual who engaged in clumsy and excessive promotion of his book marketing services, including some very amusing (and obviously phony) namedropping. This prompted some acerbic and cynical ripostes, one of which characterized the activity as “pimping.”

The book marketer didn’t take kindly to being called a pimp. That’s when it got weird.

A new member, purporting to be an agent with “Simon & Schuster Literary Agency” (doesn’t exist) and Janklow & Nesbit, showed up to vouch for this book marketer. His profile had just been created, he had no contacts, but he certainly did know of this book marketer!. Under intense fire, he had to admit he wasn’t an agent, he changed his profile, and soon melted into the wallpaper.

But not before the arrival (on the morning of Mothers Day) of Mr. Jim Berkus, the (real life) Founder and Chairman of the amazing United Talent Agency, which represents a slew of top Hollywood names. He, too, had registered just moments before, had no connections, and dropped into this particular thread to affirm that he, too, knew of this book marketer.

By mid-afternoon, he was joined by Seth Grahame-Smith, the successful author (most recently of the acclaimed Abe Lincoln, Vampire Hunter). His profile was also new, and he had only one “contact” – the book marketer. “Seth” immediately jumped into the fray, delivering some withering insults and outlandish threats. Here on Mothers Day were the head of UTA and an award-winning author rolling in the mud with a bunch of schlubs like me.

Of course, we weren’t absent when the brains were dispensed, and aside from a few inflated egos who fawned over Berkus and told him all about their bestsellers (they really were fooled), the rest of us knew what was going on. It was the tired old game of sock puppetry – but this time using the names of real, famous people. What we lawyers call “actionable.”

This got me thinking about all of the writers I meet and observe in online communities. Like any particular occupation, they certainly do run the gamut, don’t they? And tell me if you agree – but it sure seems easy to spot the fakers, doesn’t it? This book marketer fellow, he certainly had fooled himself, to think that he could impersonate famous people so absurdly.

Then I thought of the advice from Reed Farrel Coleman, when he talked about how to imbue your characters with feeling. Do you know your own deepest, darkest secrets? Do you know what’s in your heart, and are you willing to expose that in your fiction?

I have a confession to make. Up until I began to write fiction, I’m not sure I knew who I really was. It took the death of my father to permit me to explore that. Now that I have, and discovered lots, I find I am better able to write fiction in a way that gets to the core of how we view the world and relate to one another.  How we view ourselves.

And there’s an awful lot of lying in that, isn’t there? There’s a lot of lying, a lot of self-deception, posturing, manipulation, jealousy, insecurity, egomania and cowardice.

These things make for good fiction. A novel where everyone was self-aware, truthful, honest and respectful of others would be a dull read, wouldn’t it? We need treachery to carry a story. Duplicity. A world where things are not as they seem. Where characters you trust (or not) face the difficulty of discerning truth from artifice.

We as readers want to see these conflicts of discernment and truth. And I think that we as authors are more capable of conveying the conflicts, and the truths, in a convincing way if we are honest with ourselves and what makes us tick.

We can’t be afraid of this. If the core of your drama involves the workings of the human heart, you must know how it works, and you know how it works most convincingly from your own heart and what you and others have done to it.

Sharing that is terrifying. It is how Lawrence Ferlinghetti described the poet in Constantly Risking Absurdity:

Constantly risking absurdity

                                             and death

            whenever he performs

                                        above the heads

                                                            of his audience

   the poet like an acrobat

                                 climbs on rime

                                          to a high wire of his own making

and balancing on eyebeams

                                     above a sea of faces

             paces his way

                               to the other side of day

    performing entrechats

                               and sleight-of-foot tricks

and other high theatrics

                               and all without mistaking

                     any thing

                               for what it may not be

       For he’s the super realist

                                     who must perforce perceive

                   taut truth

                                 before the taking of each stance or step

in his supposed advance

                                  toward that still higher perch

where Beauty stands and waits

                                     with gravity

                                                to start her death-defying leap

       And he

             a little charleychaplin man

                                           who may or may not catch

               her fair eternal form

                                     spreadeagled in the empty air

                  of existence

Okay, this is dreadfully existential. It happens when you have a brush with death.

But I’m filing that one away, and I promise you I will be using it.

You authors: grab hold of your inner selves and trumpet it with clarity.

You readers: give those little charleychaplins a standing ovation.


Filed under: Book Marketing, Craft, Peter Morin   |  17 Comments
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Prostitution and Slander

06Mar12

The uproar over Rush Limbaugh’s degrading and insulting comments about law student Sandra Fluke has included calls for him to be removed from the airwaves for his slanderous remarks. This presents an excellent opportunity to revisit some of the principles of defamation law that I discussed in my earlier post, You Dirty Rotten ^@#$%^.

Ms. Fluke, a Georgetown Law School student, testified before an ad hoc committee made up of Pelosi and several of her Democratic colleagues to give her public testimony on behalf of the Georgetown Law Students for Reproductive Justice, a number of whom attended the hearing with her. Since Georgetown is a Jesuit institution, it does not provide contraception coverage in its student health plan. She wished to share the voices of women who suffer from this policy and to speak on their behalf in advocating for the Obama administration’s insurance mandate.

The next day, Limbaugh let loose. Let’s look at his most incendiary statement:

What does it say about the college co-ed Susan (sic) Fluke who goes before a congressional committee and essentially says that she must be paid to have sex. What does that make her? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex, right? She’s having so much sex she can’t afford the contraception, she wants you and me and the taxpayers to pay her to have sex, what does that make us? We’re the pimps. The Johns, we would be the Johns, no…. uhhhhhhh….Okay she’s not a slut she’s round-heeled, I take it back.

Fluke says that she has been told by legal experts that “I might have a case” if she were to sue Limbaugh for slander. [This followed the odd statement from Congresswoman Carolyn Maloney (D., N.Y.) that “we will be filing a slander suit against Rush Limbaugh,” suggesting further that the perfect lawyer for the case was prominent women’s rights attorney Sybil Shainwald. I don’t know if Cong. Maloney was speaking for Fluke or not, but it would be highly inappropriate for her to say such a thing if she weren’t. What does she mean, “we?”]

Plaintiff’s personal injury lawyer Max Kennerly says:

Fluke “definitely” has a defamation case against Limbaugh if she chooses to pursue it. He suggests that Limbaugh’s comments that Fluke was a “slut” and “prostitute” “embedded false statements of fact,” were thus defamatory and that a judge might allow a jury to decide the case [Ed: see below].

“His statements implied facts about somebody’s sex life, that she was promiscuous and trading sex for money,” Kennerly said.

Kennerly’s post refers to this opposing viewpoint from Russell Smith at Legal As She Spoke:

Rush Limbaugh is a dumbass. I can write this without getting sued for defamation because it’s hyperbole. No reasonable person could conclude that I’m stating an actual fact about Mr. Limbaugh. (Feel free to agree, of course, but it’s rhetoric, not provably true or false.)

He also looks at Mark Rendazza at Legal Satyricon:

In other words, “slut” is properly regarded as little more than a statement of opinion. But see Bryson v. News Am. Publs., 672 N.E.2d at 1221; Howard v. Town of Jonesville, 935 F.Supp at 861; Smith v. Atkins, 622 So.2d at 800. …

The term “slut” has different meanings to different people. C.f. McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (finding that the term “scam” “means different things to different people . . . and there is not a single usage in common phraseology. While some connotations of the word may encompass criminal behavior, others do not. The lack of precision makes the assertion ‘X is a scam’ incapable of being proven true or false.”); Lauderback v. Am. Broad. Cos., Inc., 741 F.2d 193, 196 (8th Cir. 1984) (insurance agent referred to as a “crook”). “Clearly, if the statement was not capable of being verified as false, there could be no liability for defamation.” Woodward v. Weiss, 932 F. Supp. 723, 726 (D.S.C. 1996).

Absent something really bizarre happening in Court, I can’t see a court, in this day and age, allowing a defamation claim based on the term “slut.” [Ed: Rendazza is saying that a judge would not allow a case to go to a jury, but would dismiss it before trial; he is also ignoring the bigger threat, the use of the word “prostitute.”]

Kennerly takes this position:

As much as Rush Limbaugh might sound like some drunk in a bar, he speaks for a major media organization, and his assertions to the public carry a certain degree of weight as a form of reporting. His listeners don’t think it’s just Rush sitting in front of a microphone, they rightly believe there’s a whole team of people who help prepare and review the day’s content and that Rush, an experienced broadcaster, would pay attention to his comments for accuracy. When Rush describes a woman as asking a congressional committee to pay her for sex, and says the woman is having a lot of sex, many listeners will infer that Rush has, at a minimum, investigated the congressional testimony, and has concluded the testimony includes some factual basis for his remarks.

And that’s the crux of the biscuit: Do Limbaugh’s comments, examined in their totality, considering all the words used, the circumstances surrounding them, how they were disseminated and the audience to which they were addressed, imply the existence of undisclosed facts about Ms. Fluke that support his insult, or would his listeners take the comments to be “epithets, rhetorical hyperbole, or pure statements of opinion,” which, vile as they may be, he may express without committing slander?

Kennerly is not saying it is necessarily a winning case, just that he thinks “a judge might allow a jury to decide the case.” This is no small distinction (unless you’re the one paying for the defense lawyer). Kennerly simply believes that there would be a question of fact sufficient to avoid dismissal of the case as a matter of law (at what is called the “summary judgment” stage).

I do find interesting the title for Kennerly’s post, “Sandra Fluke Can Sue Rush Limbaugh For Defamation And IIED.” Well sure she can. This is America. Anyone can sue for anything, and there’s usually a lawyer willing to take the case.

There is certainly no shortage of bystanders urging Ms. Fluke to sue Limbaugh. He brought this on himself, his remarks were tasteless, unnecessary, inaccurate, and damaging to his own personal and financial interests – to say nothing of the damage to the politics he supports.

And I could say the same about remarks made by Keith Olberman, Al Francken, Jon Stewart, Glenn Beck, and a lot of other pundits and talk hosts out there who rely on ratings and attention to sell advertising and run their special brand of vitriol.

(Want to see some more gen-yew-wine misogyny? Don’t see that on MSNBC, do you?)

The problem is that if Limbaugh were to be tried and found not liable, that result would embolden the rest of them. Personally, I think the economic boycott is a more effective, and less risky, approach.

What a really wish is that they’d all just shut the hell up.


Filed under: Internet, law and lawyers   |  19 Comments
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Keep Your Hat On

04Mar12

Randy Newman’s iconic song (famously performed by Joe Cocker in the memorable Mickey Rourke-Kim Basinger sizzler, 9 ½ Weeks) came to mind as I was reading all about the latest conflagration: “censorship” of erotic content in literature.

If you’ve been hiding under a rock (or maybe just don’t pay attention to the fortunes of the “erotic romance” genre), you’ve missed this:

A little more than a year after Amazon (finally) erased The Ped0phile’s Guide to Love and Pleasure from the Amazon catalogue (backstory from Selena Kitt here), the folks at Paypal upset the indie publishing applecart by notifying the book distributors they service (including Bookstrand.com and smashwords.com, and at least one other venue for erotic content, excessica.com) that they would have to remove all titles with content containing “incest, pseudo-incest, rape, and bestiality.”

Bookstrand and Smashwords immediately notified all of their authors of this, and requested immediate compliance with the take-down order. Then the shit hit the fan. The internet buzzed with the outrage of indie authors around the globe. A petition site to Stop Internet Censorship launched (now has 606,800 Facebook “likes”) Smashwords CEO Mark Coker emailed all Smashwords authors who publish erotica. As Mark stated in the email, “their hot buttons are bestiality, rape-for-titillation, incest and underage erotica.” He might have found a better term than “hot button,” I suppose.

Anyway, the debate raged for days and days about this subject of “censorship.” Surely Paypal was a “monopoly” that couldn’t legally tell people what they could sell or what they could buy! Who was Paypal to appoint itself Morality Police? Certainly nobody advocates the glorification of rape, but this was walking on a slippery slope toward more aggressive content control. Paypal was violating our First Amendment rights to free speech! In fact, yesterday, the First Amendment Coalition posted on its website that the Electronic Freedom Federation was “ready to go to court to contest PayPal’s practice of censoring sexually explicit fiction.”

This intrigued me, since I might have thought EFF (and the First Amendment Coalition, for that matter) would have recognized the grave challenge of applying “censorship” laws to a private company.

Lo and behold, Electronic Freedom Federation had said no such thing – and to their enduring credit, stated the issue quite frankly:

…as we explained when WikiLeaks was facing censorship from service providers: the First Amendment to the Constitution guarantees freedom of expression against government encroachment—but that doesn’t help if the censorship doesn’t come from the government. Free speech online is only as strong as private intermediaries are willing to let it be…

…But having a right to speak is not the same as having a right to be serviced by a popular online payment provider. Just as a bookseller can choose to carry or not a carry particular books, PayPal can choose to cut off services to ebook publishers that don’t meet its “moral” (if arbitrary and misguided) standards.

Good on them for getting it right. Shame on the First Amendment Coalition for mis-stating EFF’s position.

Anyway, while it is clear that Paypal has the right to exercise its commercial free speech by not participating in the sale of objectionable content, I couldn’t help but wonder why an enterprise like Paypal – owned by eBay – would care to get involved with the content of the books sold on internet sites. Was there some other commercially relevant basis for setting such a policy?

It appears there is.

As Selena Kitt pointed out, when she began to search for an alternative to Paypal, here’s what she discovered:

 … most merchant-services (i.e. companies that allow you to use Visa and MasterCard on their site) which allow adult products charge a $5000 up-front fee to use their service. Then, they take exorbitant percentages from each transaction. Some 5%, some 14%, some as high as 25%.

Now it was starting to make more sense. The credit card companies charge higher fees for these “high-risk” accounts because there is a higher rate of what they call “chargebacks.” You know that protection on your credit card, where if you dispute the charge, you don’t have to pay for it? Well they’ve determined that happens more with porn and gambling and other “high-risk” sites than others, so they’re justified in charging more money to process payment for those sites.

Paypal doesn’t want to have to pay Visa and MC for carrying “high risk” accounts on their books. You have to remember that Paypal is a middleman. Sites that carry high-risk material have to pay the high-risk costs of doing business. If you’re going through Paypal, you don’t have to pay that. Until Paypal catches you. And then they insist you take down your high-risk content or lose your account.

Regardless of what many consider an unwarranted infringement on their right to sell or buy erotic literature, I doubt most of them would go so far as to argue that Paypal (or Smashwords) would have to underwrite the higher cost of dealing in that segment of commerce (i.e., the purchasers of pornography and erotica).

Let’s finally take a moment to look at that “censorship” issue.

As EFF succinctly put it, the First Amendment to the Constitution guarantees freedom of expression against government encroachment—but that doesn’t help if the censorship doesn’t come from the government. It doesn’t matter if the private censor is a mom and pop store or Paypal. What matters is who’s doing the “censorship.”

Ironically, even as the voices of freedom echo across the internet, along comes another attempt at censorship, this one to Have the FCC Remove Rush Limbaugh From the Radio.

Are there any readers out there who want to take a crack at this one? Can you provide a cogent argument that supports compelling Paypal to process the sale of erotic literature as well as driving Rush Limbaugh off the air?


Filed under: law and fiction   |  20 Comments
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Your Worst Nightmare!

16Feb12

Last weekend, I attended “MWA University,” a day-long series of lectures by published novelists covering all aspects of the art of writing the mystery novel. For $50, you can’t go wrong.

Jess Lourey talked about how to grow an idea into a fully developed novel

Laura DiSilverio discussed dramatic structure and plot. Are we still using Aristotle’s three-act structure? Does the Hero’s Journey still reign supreme?

Daniel Stashower gave a hilarious talk about setting and description, with some excellent examples, and some truly horrid ones too.

Hallie Ephron described her process for rewriting – that excruciating period where you recognize that your first draft is crap and you must devise ways to fix it.

Hank Ryan talked about the writing life – how she deals with a writing schedule, solitude, frustration, rejection, self-doubt, etc.

And Reed Farrel Coleman spoke about character and dialogue.

They were all great, needless to say, but Reed Coleman’s remarks left me with goosebumps. As I told him in an email afterward, (borrowing some lyrics from Bob Dylan) “every one of them words rang true/and glowed like burning coal.”

Coleman is well known for the richness of his characterization in the 14 novels and countless short stories he’s published. How does he do it? In his words, it’s Zen-like. To explain, he described an exchange he’d had with one of his writing students at Hofstra University. The student had written the ubiquitous novel scene: a guy ordering a drink from a bartender. It was lifeless, flat. He asked the student, “What is the bartender’s worst fear?”

Why would we know or care? He’s a bartender. His only purpose is to serve a drink, maybe have a brief exchange, and he’s gone. The bartender is a bit player. Knowing his worst fear does not “move the story forward,” in the parlance of the expert. This misses the point entirely, Coleman says.

Coleman maintains that the success of characterization comes from the writer’s feeling what is in the heart and soul of every character, no matter how small. It doesn’t matter whether that feeling ever transmits from the heart to the fingertips, it only matters that the writer feels it. In that, what the writer feels will transmit to the telling of the story.

He asked all of us: What is your worst fear? What is the one secret you have that is so dark, so bad, that you would be mortified if anyone discovered it? We all have them, he maintained. And those secrets and fears propel us in unknown or unpredictable ways. The connection between these secret thoughts and our actions may not be overt, or even perceptible. But they are a part of our character, and they are therefore available to become part of our fictional characters.

So, back to the bartender. What is his worst fear? Maybe he is afraid he will lose his job because he hits the bar vodka when no one’s looking. He’s an alcoholic. The reader doesn’t need to know this for any reason relevant to the story, so there will be no attempt to explain this. But when the scene is written, perhaps the protagonist watches the bartender put the glass in front of him, and notices a slight tremor in the hand, and then broken capillaries in the cheeks or nose.

Now the bartender is much more than a server of drink. He is a broken, fragile man. There is tragedy in the air. The scene now has a texture and dimension it lacked before.

When I studied literature and creative writing at the University of Vermont (way back in the 1970’s), I did a semester-long independent study on Ernest Hemingway. That exposed me to what he referred to as “The Thing Left Out.” As he explained in an essay published posthumously in A Moveable Feast, he deleted “the real end [of “Out of Season”] which was that the man hanged himself. This was omitted on my new theory that you could omit anything if you knew that you omitted and the omitted part would strengthen the story and make people feel something more than they understood.” This theory has since come to be known also as the “Iceberg Theory.” As he puts it, “[t]he test of any story is how very good the stuff that you, not your editors, omit.”

I think this is what we do when we understand our characters as deeply as we (hopefully) understand ourselves, except that in Hemingway’s case, he did it consciously, as the employment of a device, whereas Reed Coleman would have it occur organically, subconsciously.

The reason this gave me goosebumps is that as soon as he asked about the bartender’s worst fears, I so clearly understood what he was saying, and I realized it was what I had always done, purely intuitively, without really being conscious of it or knowing what the heck I was doing or why. NOTE: I’m not saying I do this right, or that it works in every case – just that it happens.

Coleman observed another tangent to this phenomenon that tied it rather neatly together. Speaking of bartenders and writers, he asked why it was that so many great writers were drunks. Perhaps it was at least in part because they, having the unusual insight into the darkest fears of the human psyche (through their own perverse thoughts), resorted to alcohol to both access the terror and to dull the resultant pain.

But that’s the subject of another essay.


Filed under: Craft   |  22 Comments
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An Anti-spam Public Service Message

20Jan12

It seems that for people who are supposed to be in the imagination business, an awful lot of writers check their imagination at the door when it comes to marketing their books.

I am a “member” of so many Facebook writer/fiction/reader groups I lose track of them. Some of them have a No Spam rule which is enforced with varying degrees of militancy. What they all have in common is that their “Rule” is ignored.

It’s even worse in the Kindle reader forums. Amazon has recently added to its Terms of Service a prohibition on their authors using the reader forums to post product links to their own work. There are dozens of forum members who quite assiduously enforce this rule, and they make no bones about it. They even started a thread dedicated to telling authors to stop spamming. It’s up to 71 pages, some of it argument and objection from writers. There is that sort of personality who either can’t read, can’t obey, or just is oblivious to the concept of common courtesy.

On the Authonomy website, there is a designated forum thread called Shameless Plugs. Back in the stone age when I was hanging around there, many writers used that thread to invent very clever and often hilarious methods of promoting their work. The Art of BSP was raised to dizzying heights, and it garnered appreciation, and resultant reward, from many participants.

But things have changed. The raucous marketplace of fiction has been infiltrated by pickpockets and knock-off watch salesmen. The art of promotion has been soiled by rank carnival barkers. The clever loquaciousness of the snake oil salesman has been drowned out by  pamphleteers, panhandlers, peddlers of paper roses. Subtle enticement has been overrun by BUY MY BOOK!

Selling a work of fiction is not like a Jerky Boys routine.

So here’s a little public service message I hope my friends will pass along. Readers deserve better.


Filed under: Book Marketing   |  7 Comments
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The Law Is an Ass

12Jan12

Well, okay, not the law per se.

Reading my weekly legal newspaper (Mass Lawyers Weekly) is rarely this entertaining.

One John Queenan sought to buy himself some alcohol at a local package store (that’s the New England idiom for liquor store). Detecting that Mr. Queenan was unsteady on his feet, the female attend demurred. Queenan sought to explain his unsteady gait, telling the clerk he had a new artificial leg. She was unconvinced.

So Queenan dropped trou. Not just his trousers, but his tightey-whiteys too.

He was arrested, prosecuted and convicted of indecent exposure.

The Massachusetts Appeals Court reversed his conviction. It seems that under Massachusetts law, it isn’t enough that you expose yourself in public. The prosecution must prove that you offended someone. Here, when asked if she was offended, the clerk said, “to be perfectly honest, it didn’t bother me.”

Queenan’s defense lawyer explained:

“The prosecutor kept asking the clerk, ‘how did you feel about seeing the penis?’ and she kept saying it was no big deal and she felt sorry for the guy.”

Insert small penis jokes.

[We're fiction writers - and we can't make up stuff any better than this.]


Filed under: law and lawyers, literature, Uncategorized   |  16 Comments
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You Dirty Rotten ^%@$#@^$

14Dec11

Every novelist worth his Mont Blanc has to know something about libel law.

In fact, anyone with a mouth, an opinion and an inclination to express it should, because there are a lot of thin-skinned people out there, and even more hungry lawyers. So today I’m going to talk a little about insults.

[NOTE: The law of defamation[1] is rooted in the common law. Consequently, the principles that guide it are somewhat uniform in the United States. I am going to use generalities, but as you will see, the case law comes from all corners. Disclaimer: the following is not legal advice, you are not my client, and you are to take none of this as an invitation to say nasty things about others.]

There is a widespread misconception that defamation law protects the individual from the ridicules and insults of his detractors. Quite the opposite is true. As a general rule, “epithets, rhetorical hyperbole, or pure statements of opinion” are not actionable.  Lyons v. Globe Newspaper Co., 415 Mass. 258 (1993).

It is true that a statement is defamatory if holds one “up to contempt, hatred, scorn, or ridicule or tend to impair his standing in the community, at least to his discredit in the minds of a considerable and respectable class in the community.” Tartaglia v. Townsend, 19 Mass. App. Ct. 693 (1985).  You’d think that included insults and mockery. It does not.  An epithet that constitutes “a lusty and imaginative expression of the contempt” does not entitle the victim to relief. National Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264 (1974). To be defamatory, the statement has to assert facts, not opinion, no matter how vicious it is.

Here are some colorful examples:

In Fleming v. Benzaquin, 390 Mass. 175, 180 (1983), radio host Paul Benzaquin referred to the hapless Fleming as “arrogant,” a “little monkey,” “tough guy,” “absolute barbarian,” “lunkhead,” “meathead,” and “nut.” These insults were deemed “no more than either Benzaquin’s ‘harsh judgment,’ ‘mere vituperation and abuse.’”

Benzaquin’s insults aren’t the most opprobrious examples of protected hyperbole, either. In Travers v. Shane, 4 Mass. L. Rep. 141, 142-143 (1995), “fat, f***ing, disgusting bitch” didn’t make the grade. In Puccia v. Edwards, 10 Mass. L. Rep. 185 at 11(1999), the defendant’s accusation that Puccia was a “racist” and a “harasser” was found to be protected opinion. In, Tech Plus Inc. v. Ansel, 9 Mass. L. Rep. 671 (1999), accusing someone of anti-Semitism and mental instability was not actionable.

In Lane v. Bump, 1995 Mass. Super LEXIS 117, the defendant’s characterization of Lane as incompetent and fraudulent was likewise protected opinion. In Hyatt v. Lucas, 1995 Mass. Super LEXIS 35, an editorial opinion’s reference to Hyatt as a “flasher” was protected opinion.

But my favorite is the California case of Ferlauto v. Hamsher, 74 Cal. App. 4th 1394 (1999), where the plaintiff (a lawyer no less) was called “a whore’s son,” “full of shit,’” “Kmart Johnnie Cochran,” “loser wannabe lawyer,” “creepazoid attorney,” and “meanest, greediest, low-blowing motherfucker.” Toughen up, counselor, you’re out.

In Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 14 (1970), the use of word “blackmail” to describe a developer’s tactics was not libelous as matter of Constitutional law. In National Ass’n of Letter Carriers, supra at 284-286 (1974), the use of the word “traitor” in literary definition of a union “scab” was not actionable defamation. In Woodcock v. Journal Pub. Co., 230 Conn. 525, 540 (1994), accusations that a planning board member was engaged in “back room deals” did not support a verdict of libel. In Lizotte v. Welker, 45 Conn. Supp. 217(1996), newspaper’s reference to Plaintiff’s settlement with the zoning board as an “illegal deal” and “illegal out-of-court settlement” was not libelous. In Pullum v. Johnson, 647 So. 2d 254 (1994), calling the Plaintiff as a “drug pusher” was deemed incapable of defamatory meaning in the context of a hotly contested political debate. And last but not least, in Steinhilber v. Alphonse, 68 N.Y.2d 283 (1986) the use of language to refer to a union scab as “fat, ugly, backstabbing, lacking in talent or ambition” was not actionable, in context of labor dispute.

So there you have it. Namecalling is a popular American sport, and we play it with gusto.

To be in danger of a libel suit, you must assert facts that are defamatory, and those must be proven false. If the facts asserted cannot be proven false, they cannot be libelous.

Not that this would stop the next Kmart Johnny Cochran.

[1] Defamation can be made by oral statement (slander) or written statement (libel).


Filed under: Craft, Peter Morin   |  19 Comments
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Right of publicity and artistic free speech

07Dec11

The Winters of Our Discontent

 Today I have the rare opportunity to blog on a subject that combines all three of my current professional occupations: fiction, music and law.

In my internet meandering, I notice this question is asked over and over: Can you use the likeness of a famous person in your creative work, and under what circumstances?

Today, we will look at the case of Edgar Winter et al v DC Comics, 30 Cal 4th 881 (2003), for an answer to that question.

As a teenage Rock & Roller, I was a huge fan of Johnny Winter and his brother, Edgar. I saw Johnny live in concert at least a half-dozen times, and his brother twice with him and once on his own with Rick Derringer (Rock & Roll Hootchie Koo, anyone?). One of the first LPs I owned was First Winter, featuring the incomparable Leland Mississippi Blues. I still have it (in a box somewhere in that drafty barn).

Johnny was one of the greatest guitar players ever (he is now a severely debilitated shadow of his former self), and Edgar one of the most brilliant songwriters (and a ridiculous saxophonist and  keyboardist). But besides being extraordinary musicians, the Winter brothers are best know for their very unusual physical appearance: flowing white hair and pale skin (I always thought their being over 6’ tall and rail thin counted for something too).  The Winter brothers’ albino condition gave them something of cult hero status, I believed then, and it seems that DC Comics agreed.

In the 1990′s, DC Comics published a five-volume comic miniseries featuring “Jonah Hex,” a fictional comic book “anti-hero.” The series contains an outlandish plot, involving giant worm-like creatures, singing cowboys, and the “Wilde West Ranch and Music and Culture Emporium,” named for and patterned after the life of Oscar Wilde.

The cover of volume 4, titled “The Autumns of Our Discontent,” features brothers Johnny and Edgar Autumn, with pale faces and long white hair. One brother wears a stovepipe hat and red sunglasses, and holds a rifle. The second has red eyes and holds a pistol. They are depicted as villainous half-worm, half-human offspring born from the rape of their mother by a supernatural worm creature that had escaped from a hole in the ground. At the end of volume 5, Jonah Hex and his companions shoot and kill the Autumn brothers in an underground gun battle.

Johnny and Edgar sued DC Comics alleging several causes of action including appropriation of their names and likenesses. They alleged that the defendants selected the names Johnny and Edgar Autumn to signal readers the Winter brothers were being portrayed; that the Autumn brothers were drawn with long white hair and albino features similar to plaintiffs’; that the Johnny Autumn character was depicted as wearing a tall black top hat similar to the one Johnny Winter often wore; and that the title of volume 4, Autumns of Our Discontent, refers to the famous Shakespearian phrase, “the winter of our discontent.” They also alleged that the comics falsely portrayed them as “vile, depraved, stupid, cowardly, subhuman individuals who engage in wanton acts of violence, murder and bestiality for pleasure and who should be killed.”

So then, can the Winter brothers protect themselves from this sort of artistic free speech?

The California Supreme Court said no. Drawing on the test it had earlier developed in another celebrity case involving another beloved iconic group of the past – The Three Stooges – the Court outlined its distinction between economic theft of celebrity image and artistic free speech protected by the First Amendment.

“When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist….

“On the other hand, when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but it is also less likely to interfere with the economic interest protected by the right of publicity. . . . [W]orks of parody or other distortions of the celebrity figure are not, from the celebrity fan’s viewpoint, good substitutes for conventional depictions of the celebrity and therefore do not generally threaten markets for celebrity memorabilia that the right of publicity is designed to protect.”

“Transformative elements,” then, are essential ingredients in artistic expression that uses the name or likeness of a public figure.

What are these “transformative elements” the court needs to see?

Were you hoping for a simple list that you can commit to memory? I hope not.

Borrowing somewhat from the federal courts’ infamously vague articulation of the considerations used in determining whether the fair use doctrine is properly invoked,  The California Supreme Court articulated its own “test” (or riddle, of you will) in the Three Stooges Case.

Okay, so here’s the test.

…whether the new work merely ‘supersede[s] the objects’ of the original creation, [citations], or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message…

 

Need examples?

“Trading cards” caricaturing and parodying well-known major league baseball players (they “provide social commentary on public figures, major league baseball players, who are involved in a significant commercial enterprise, major league baseball.” Cardtoons v. Major League Baseball Players (10th Cir. 1996) 95 F.3d 959.

 “Factual reporting” – (see, e.g., Rosemont Enterprises, Inc. v. Random House, Inc. (1968) 58 Misc.2d 1.

“Fictionalized portrayal” – Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal. 3d 860; Parks v. Laface Records (E.D.Mich. 1999) 76 F. Supp.2d 775 [use of civil rights figure Rosa Parks in song title is protected expression])

“Heavy-handed lampooning” – Hustler Magazine v. Falwell (1988) 485 U.S. 46

“Subtle social criticism” – Coplans et al., Andy Warhol (1970) pp. 50-52 [explaining Warhol's celebrity portraits as a critique of the celebrity phenomenon].

But there’s also another inquiry that courts “may find useful.” (See why so many lawyers are rich?):

Does the marketability and economic value of the challenged work derive primarily from the fame of the celebrity depicted? If this question is answered in the negative, then there would generally be no actionable right of publicity. When the value of the work comes principally from some source other than the fame of the celebrity–from the creativity, skill, and reputation of the artist–it may be presumed that sufficient transformative elements are present to warrant First Amendment protection.

Okay, then this is necessary? Ooerr…

“If the question is answered in the affirmative, however, it does not necessarily follow that the work is without First Amendment protection–it may still be a transformative work.”

Oh my. So much for a Bright Line.

Sometimes I get cynical and suspect that judges do this on purpose, just to perpetuate the legal profession.

I have my own rule of thumb. If I ever choose to portray someone famous, I’m going to lampoon the hell out of them. You seem to be perfectly safe if you stick to parody.

Just don’t lampoon a judge.


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Joining the Scrum

29Nov11

Last week, my friend Jill Marsh invited me to guest blog on her site. Jill is a UK writer based in Swizerland whom I met at The Bookshed, which you will see below. I thought I’d repost it here. Hi Jillie!

Some of this might sound repetitive to regulars. It’s a story I’ve told before, but honestly, I’m still pinching myself over this whole experience.

________________

Jill asked me to share that part of my journey wherein I decided to ditch my pursuit of the Holy Grail of traditional publication and join the ranks of the Great Unwashed (that’s how Big House editors look at us, I’m told).

First let’s get something straight. I am not a dreamer. I am a cynical, battle-scarred veteran of partisan politics and the trial courtroom. While I briefly entertained a dream of being a novelist back in college, it was quickly squelched by the pressure of parental expectations, economic reality, and the recognition that I had no life experience worth writing about.

So I went off and got some life experiences. The kind worth writing about. But it wasn’t until almost 20 years later that these experiences began to spill out of me in a story. A pal of mine asked back then, “do you have a novel in you?”

“Nah,” I said, and believed it.

Then my father died in August 2007. I’d been helping him with his memoirs when he became too weak to continue. After he left us, I tried to transform the work into a biography. But it was just too painful, and too soon. Still, I needed to find a way to grieve, and I found burying myself in a story was a pretty good way to do it.

One day I found youwriteon.com, where Jill’s pal John Hudspith found something within the rough first chapter I’d put up there that glimmered through the crap. I don’t know what it was, or why he thought so, but he invited me to join him and Jill and a lot of other awesome writers at a place called The Bookshed, and 18 months of merciless flogging later, I typed “the end.”

I did not write a novel to become a novelist. I had no illusions of big advances or Hollywood movie deals. I just wrote a novel, and people seemed to like it. I wrote some short stories and people seemed to like them. And I had a blast doing it, so what the hell, right? You enjoy doing something, why not see how far you can go with it? Surely, somewhere not far down the road, cold reality would slap me silly.

I started two more novels, just in case.

Going 0-for-120 on the query trail didn’t really bother me. This novel must not be as good as people say, I thought. Hell, a lot of folks think the food at Denny’s is pretty good, but we know differently, don’t we? It was the same as cooking. A lot of my friends thought I was a pretty good cook, too; but I’d never thought I was qualified to run the kitchen at a five star restaurant.

Then I went to my first writer’s conference in November of 2009, The New England Crime Bake. The first day, I attended a pitch practice session. Fate’s fickle hand at work, you know. I sat at the first empty seat, next to a lady I’d never met. She happened to be the agent. She went around the table, listening to stumbling and stuttering neophytes who hadn’t known what at all to expect. But I had practiced my elevator pitch. I sure had.

“What have you got,” she said to me, wearily.

“Diary of a Small Fish is about a virtuous man who gets indicted for playing golf.”

A couple of giggles from the others.

“I want to read that,” she said.

Heh, what can I say? She’s married to a trial lawyer. She read it and loved it. He read it and loved it. Dumb luck. Nothing more.

Six months later, I signed on with Christine Witthohn at Book Cents Literary, but not until I’d spoken to a half dozen of her current clients, published and unpublished (at her insistence). The lady had sold practically everything she’d put her hands on. She must know what the hell sells!

Still, I am a cynic, you recall. I do not entertain fanciful dreams.

During the next nine months, I did significant revisions to the manuscript, based upon long conversations with Christine – and her husband, Jeff Mehalic. In that stretch of time, I might have sent Christine a dozen emails. She responded to every one of them within two hours, mostly by phone – except once, when she was stranded in Italy.

I know there are other cynics out there who find this preposterous. An agent responding to an email with a phone call? Within an hour? Like I said. Dumb luck.

These developments occurred, you will note, during the onset of the “ebook revolution.” Self-publishing was developing at light speed, and there were dozens of pioneers blazing the trails. I followed this closely, because many of my Authonomy friends were trailblazers.

In December of 2010, Christine submitted DOSF to editors at 7 publishers – editors she knew. Editors she’d sold stuff to before. But she told me when she did, “I’m not sure I can sell your book.”

You see, it didn’t fit neatly into the mystery/crime/suspense genre. (As Jill’s lovely review begins, “What exactly IS this book? Yes, it’s a political mystery. It’s also a love story. It explores corruption, honour and integrity. And it’s funny. But how to define it?”)

The wait began. That ridiculous, inexplicable, infuriating wait where even your own agent’s inquiries to them go unanswered. Two months, three, four. Okay, that’s to be expected. But more?

In the meantime, Joe Konrath, Dean Wesley Smith, Barry Eisler, Amanda Hocking, John Locke and dozens of others filled the internet with dazzling information. Bloggers like Robin Sullivan kept tabs on a growing number of self-published authors making a serious living! Selling ebooks at 99 cents!

Get out of town. Seriously. And I was sitting on my hands waiting for a response, 6 months now.

June arrived. Christine and I had a heart-to-heart.

My novel is Boston-centric. It involves the shadows of personalities still walking, big names in politics being tried and convicted of the very same crimes my poor virtuous protagonist is accused of. At that very time! There was a market for this fiction, right here, right now! I was missing it! I couldn’t wait!

Christine’s response was simple:

  1. When you want to withdraw DOSF from submission, say the word, and I’ll call them.
  2. If you want to self-publish, then do these things first: (a) put up a single short story that’s really, really good, for FREE, (b) put up a collection of short stories a month later for 99 cents, (c) bust your ass creating buzz in advance of DOSF release, and (d) keep busting your ass to sell it.

Like a man looking at a break-up with his first true love, I asked, “What about us?”

Seriously! I had snagged one of the hottest agents in the business, and one who not only had a conscience, but a clear one at that. A lady as righteous and morally sound as my own protagonist! How could I take my only property off the market and negate the subject matter of our contract?

“We’ll use DOSF as a platform to sell your next one. And if it does well enough in the meantime, I can still sell it.”

Dumb luck. I’d stumbled upon a literary agent who not only understood the changes that were coming, but embraced them, and encouraged me and several other of her authors to self-publish.

When Amazon announced their genre imprints, she was on the phone to them, grilling them about what they were looking for, and in some cases, delivering it.

When the 9 month anniversary of the DOSF submissions approached, when none of the 7 had even given her the courtesy of a reply, and when Amazon’s Thomas & Mercer took a pass, it was time to go ahead.

[Note: There are now several authors on Christine’s list (some signed to multi-book deals with Big 6 publishers) who have at least one self-published work available. Some shorts, some novellas, some novels.]

I self-published Diary of a Small Fish on October 1st. I worked hard on the launch, had a lot of help from writer friends who delivered some very nice reviews (none nicer than Jill’s), and sold some books. I ordered 100+ paper copies from Createspace, sold most of them in a month, ordered some more. I had a smoking hot launch party in the shadow of the State House, sent out a very smart press kit.

Why did I, the stubborn cynic, the world-weary ex-politician and trial lawyer, decide to go to all this work and trouble to self-publish a first novel? Why didn’t I put it on the shelf and move on to the next, as the Old Guard would have?

Because somewhere in the process – when I’d heard enough feedback from people whose opinions I respect and trust – and when I’d re-read enough of it for the 100th time, I realized how damn much I believe in this novel.

I’m no authority on fiction. I’m just a guy with a little storytelling talent. But I firmly believe that a successful novel is one that touches all of your emotions. Humor, sorrow, anger, hatred, love, hopelessness, panic, fear, elation, etc. I didn’t know that when I started writing.

I think that’s what DOSF does. And I wanted readers to experience it now, today, not in Q4 of 2013.

There is also this:

What is going on in fiction publishing today is truly revolutionary. Seldom is the use of that word so fitting. It was impossible for me to sit idly in the cheap seats, waiting for my prom date, when all that energy was burning on the dance floor below. There are some bad dancers down here, but they’re not stepping on my feet. And there are some really fabulous dancers, too. This is where the action is, here in the scrum. I want to have fun dancing, not compete in a marathon.


Filed under: Craft, Internet, literature, Peter Morin   |  10 Comments
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What a Pahty

16Nov11

Well, it’s been an interesting month indeed.

DOSF is about lobbyists and legislators and their hobnobbing in the environs of fine dining and luscious golf courses. So, where better to throw a book launch party than in the shadow of the State House? At a watering hole favored by those very characters?

Three weeks ago, I locked in the date at Scollay Square. On that day, the Massachusetts Senate passed a casino gambling bill different that the House’s version. So it went to a conference committee. They usually futz around with it for a few weeks anyway, but they’re going to want to pass it before Thanksgiving, right? Hah, I laughed to myself, wouldn’t it be hilarious if the conference committee reported out the casino bill the day before the party, and both the House and Senate were busy as beehives?

Now to get some of those lobbyist folks to host the event. No problem, said ten of the most respected people in the profession – without even knowing what was in the novel! Well, one did. Ace environmental lawyer  Jamy Madeja was an early beta reader, so she knew the dirt.

Now to invite 150 of my closest friends and a bunch of complete strangers. Ever use Paperless Post? What a marvelous tool.

Put together a nice passed hors d’oeuvres menu, order 50 more books, just in case, get some sharp looking posters made. Put together a press kit and a press release, and find an incredibly fabulous publicist to help a friend.

And voila, a party ensues precisely at the time that both the House and Senate are acting upon the conference committee’s compromise casino bill

Let it be known that I have some exceptionally fine friends, most of whom go back over 20 years, some more than 35. Why look, some of them are here! (We forgot the camera until after I’d spoken and a good half crowd left.)

The two gentlemen in the foreground are Mark Russell (L) and Tom Beaton. They are my 1973 Andover classmates. The fellow over Tom’s right shoulder is Russ Bubas, the President of Dataquest Ltd., a security and PI firm. Russ is the real life Rex Barkley (a book character for you laggards).

Russ is talking to Ladette Randolph (hidden behind Tom), the author of A Sand Hills Ballad and Editor-in-chief of Ploughshares, the literary journal of Emerson College.

Okay, let’s change the perspective. There’s my darling bride in the foreground, chatting with one of my very best friends, Ken Ghazey. Ken and I are former college chums, post-college roommates in Boston, and frequent golf co-conspirators. To the left of Tom’s closed eyes, in the background, is Len Rubenstein, and incredibly talented photographer who is usually off shooting portraits of the very important people. Len and I are guitar players in the fabulous Gratefuls band.

In the very back corner under the television, there is a clutch of men in suits. Those are all lobbyists hiding from the camera. You can just make out a shock of white on the head closest to the tv. That’s Tom O’Neill, Tip’s son, former Lieutenant Governor, head of O’Neill & Associates, and one hell of a competitor on the golf course.

Let’s see who else Betsy captured for evidence.

Here, we’re getting on toward the end, so I am enjoying my very first and only martini. My arm is draped upon Ruah Donnelly, my first cousin, author of The Adventurous Gardener. On my right is Holly Laurent, a law school classmate who - coincidentally – formerly worked with Ruah at Goodwin Procter . Obscured by Holly, wearing a chic purple scarf, is our dear friend Jan Saragoni, President of Saragoni & Co., who provided me with some superb publicity help. (Getting a Boston Globe columnist to attend an event requires persuasion tools I do not have.)

Now I insinuate myself into the lair of lobbyists under the ruse of signing their books, for which they have paid cash. To the left of me with the charming smile is Steve Tocco, the President and Chief Executive Officer of ML Strategies, the government relations arm of the law firm, Mintz Levin. While this appears to be a fairly innocent scene as I sign Steve’s book, Steve and I are actually engaged in a ruse to lure Bob Havern (far right holding the Amstel) into a lopsided golf match to be scheduled in the future.

By 7:00 sharp, the tables were rolled out, the crowd was gone (well, most of them), and my first book launch party was behind me. I was drained, wired, exhausted reeling from it all.

At the end of the night, I’d sold over 65 books, generated some great buzz, seen some old friends, had one hell of a good time; and I’d been shown an unusual instance  in which word of mouth in your own back yard has a huge amount of power.

More importantly, I realized how damn much I believe in this novel.

And that right there’s worth the price of the Baby Beef Wellingtons and Tuna Tartare.


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