The PEN – Charlie Hebdo Award Controversy

I’m so angry I could spit!

This year the PEN America Center, a writers’ organization whose mission is to defend the free expression of ideas in literature decided to bestow it’s Freedom of Expression and Courage Award to the staff of Charlie Hebdo.

In protest, six prominent authors: Rachel Kushner, Peter Carry, Michael Ondaatje, Francine Prose, Teju Cole, and Taije Selasi announced that they would not attend the ceremony. Thus began one of those periodic literary dust ups that only we few band of brothers in the book world care about. But, as they say, “ the politics is so vicious because the stakes are so low.”

Low, indeed, but I’m still so angry I could spit.

None other than Salman Rushdie launched the counter- attack. He said, “What I would say to both Peter and Michael and the others is, I hope nobody ever comes after them.”  Salman got down and became a little earthier on Twitter when he characterized the PEN 6 as “Just 6 pussies. Six authors in search of a bit of Character.”  [hear, hear Salman!]

Francine Prose responded on Facebook by throwing out red herrings expressing her shock that Rushdie would use the sexist term “pussies.”

Meanwhile short story writer Deborah Eisenberg weighed in with a letter to PEN executive director, Suzanne Nossel opposing  PEN’s giving the award to Charlie Hebdo. Depending on how you feel about the subject, her letter was either nuanced or unintelligible. I prefer the latter characterization.

During this entire affair,  when the world rallied in outrage over the Charlie Hebdo murders, when the leader of Hezbollah and the Likud Party in Israel both agreed on something for the first time in history, there was an ugly current among some left wing intellectuals that insisted on defining the offending caricatures in Charlie Hebdo as Islamophobic and undeserving of – well- anything. Most of them, like Deborah Eisenberg, were at pains to point out that they don’t believe in murder. And I’m sure this is true and also beside the point. But, as Salman points out, I wonder how deep is their commitment to free speech.

My favorite comment by an author and the one that I feel most reflects my opinion and feelings was by Geraldine Brooks. She said:” The point of free speech is that it’s free. Free to be offensive, to be misguided, to be crude or wrong. If you start to cherry pick which kind of speech is worthy of defending, you might as well be ISIS. I’m thoroughly shocked that a group of writers I admire have castigated a free speech organization for recognizing artists butchered because of their commitment to free speech.”

I  decided to say my peace on the subject. I wrote this letter to PEN executive director Suzanne Nossel:

“Dear Ms. Nossel,

I want to express my support for PEN in honoring Charlie Hebdo and also my indignation at the authors who have decided not to attend the awards in protest. I read the exchange of letters between you and Deborah Eisenberg. I thought her opinions that she expressed were unintelligible and indefensible.

The issue isn’t just a matter of abstract principle for me. I’m a literary agent. But before that I was the owner of Cody’s Books in Berkeley for 30 years. In 1989, Cody’s was bombed for carrying The Satanic Verses. It was another creative work that satirized religion and was no doubt extremely offensive to certain people. We were probably the first victim of Islamic terrorism in the United States. Afterwards the Cody’s staff had to decide whether we should continue carrying Satanic Verses. It wasn’t an easy choice at all. No one wanted to be martyrs to the cause. But the staff voted unanimously to keep carrying the book. Rushdie and the entire writing community stood united with us, and gave us courage.

I am glad you have honored Charlie Hebdo for showing their courage as well. I’m sorry those six writers have such short memories and such a weak and confused commitment to the values that PEN exists to defend.

I hope you will reaffirm your commitment to those values and to your decision to honor the courage of Charlie Hebdo.

Andy Ross”

Suzanne Nossel responded to my letter by saying: “Don’t worry. We are hanging tough.”

PEN has put up a website, a forum where people can make their own opinions known. I encourage you all to do so.

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Mary Norris, The Comma Queen

Several years ago we interviewed Mary Norris, copy editor at The New Yorker.  It was our most popular blog post ever with over 50,000 views.  I think the success of the blog partially inspired Mary to put her thoughts and experiences on paper. This week, Mary’s book, Between You and Me: Confessions of a Comma Queen was released by W. W. Norton. An excerpt of the book   recently appeared  in The New Yorker.  Mary tells us of the titanic battles over the elements of style: who vs. whom, that vs. which, the fate of the hyphen in the modern world, and all things having to do with the comma. It’s also very funny. I squealed with glee as Mary succeeded (as many in the past have failed) to explain the difference between restrictive versus non-restrictive clauses. She also includes lots of stories describing the punctuation battles at The New Yorker with such great writers as: Pauline Kael, Philip Roth, and George Saunders.

Andy: Mary, congratulations on Between You and Me. Every writer I know has been waiting for this book to get published. OK. Let’s not beat around the bush. Let’s begin with the mother of all punctuation battles, the controversy that has been causing the end of lifelong friendships, the issue of the Oxford Comma. Where do you and The New Yorker stand on this?

Mary: Hi, Andy. I can’t believe how passionate people are on this subject. I prefer to call it the serial comma, because the Oxford comma sounds sort of upper class, and though the use of the serial comma may mark a person or a publication as somehow particular or formal, it is really a down-to-earth practice, which keeps you from having to think about whether or not a series is ambiguous. It probably isn’t ambiguous, but that final comma before the “and” gives structure to a series, in my opinion. The use of the serial comma is The New Yorker’s preferred style, and I am sticking with it.

Andy: And while we are talking about commas, you seem to think that the world of writers can be defined by the general attitude toward the comma. There appears to be two schools on this, right?

Mary: Commas are for clarity. There are writers who use punctuation for cadence and writers who use it to reinforce grammar, and there are writers who blend the two approaches. There are many conventional uses of the comma that people waste time arguing about. I know it sounds stuffy to say that we use the comma because we’ve always used it—in a date, say (between the date and the year, and then again after the year, the second comma finishing what the first comma started; the British write the date before the month to avoid that comma), or between title and author (I’ll go with the obvious: Between You and Me, by Mary Norris)—but there really is no reason for some commas besides tradition. Untraditional punctuation can be fun, but it can also be distracting.

Andy: Since joining The New Yorker more than 30 years ago, what are the most interesting changes you have witnessed in grammar and usage?

Mary: I think the most persistent effort at change is going into trying to solve the problem of the genderless third-person singular pronoun. It is unlikely that a new pronoun will catch on, and people find it cumbersome always to say or write “he or she,” “him and her,” “his or hers.” Some have started using the feminine pronoun once in a while to fight sexism, and I’m for that. Others are talking about the “singular their,” which we use all the time in conversation (“Everybody takes their time on the subway stairs”) but try to avoid in print, because the grammar calls for a singular that doesn’t exist. The spoken language forges ahead while the written language, when carefully edited, is more restrained. I think it’s going to go on this way for a while, but the spoken language—common usage—seems to be winning, and some venerated copy editors are even trying out the “singular their” to see if anybody notices.

Andy: Give us writers some advice. If we have only one reference book on style, which do you recommend?  And the best dictionary?

Mary: I like Garner’s Modern American Usage. It’s thorough and clear on all the issues, and it has backbone: Garner is a conservative in matters of usage, yet he gives space to other points of view. His citations are numerous, and he uses an asterisk to mark the faulty passages, so that you don’t get mixed up. When I read Fowler, I sometimes can’t tell whether he’s citing a passage in approval or denigrating it. And Merriam-Webster’s is the great American dictionary. I still like to look things up in a desk dictionary, but the new online Webster’s Unabridged is superb.

Andy: Can you describe for us what a typical day is for you at The New Yorker?

Mary: The hours at The New Yorker are from ten to six, and I try to be on time, as it is embarrassing to be chronically late when you don’t have to be at the office till ten. We have a weekly schedule for closing the contents of an issue in an orderly fashion: fiction closes early in the week, critics at midweek, and the longer, more demanding pieces near the end of the week; Talk of the Town and Comment go to press last, on Friday. The head of the copy department, Ann Goldstein, parcels out the week’s tasks, matching up who is available with what needs to be done. If the lineup changes, we readjust.

There are four full-time O.K.’ers, as well as a team of about six proofreaders, some of whom act as O.K.’ers when we need them. Basically, on the day a piece closes, you read it, and give the editor your query proof, which will also contain the queries of a second proofreader, and after the editor has entered all the acceptable changes and sent the new version to the Makeup Department, you read that new version. There will sometimes be a “closing meeting,” when the editor, the writer, the fact checker, and the O.K.’er sit down together over the page proof and discuss final changes. The O.K.’er then copies these changes onto a pristine proof called the Reader’s (to keep the paper trail) and enters them into the electronic file, and sends the revised piece back to Makeup. The next version is read against the Reader’s proof by another layer of proofreaders, the night foundry readers. The system is full of redundancy and safety nets.

Andy: You have worked under William Shawn, Robert Gottlieb, Tina Brown, and David Remnick. Do you have a sense that there was a “golden age” of TNY or are we living in it now?

Mary: Hmmm. Sometimes when I have occasion to look back at an issue from the Shawn days, I am moved by the beauty of those vintage magazines: the lines of type were fitted character by character, the hot type is very alive, the black-and-white columns of print have a classic purity. Bob Gottlieb was careful to maintain that, though he introduced some changes. Tina Brown brought in color and photography, and shortened the length of pieces (and probably the attention span of the general reader). I think that what David Remnick has done is bring his newsman’s nose to the job. Remnick has succeeded in making The New Yorker a vital part of the national conversation. We seem to have found our voice after 9/11.

On the other hand, you find fewer quirky pieces that may not be particularly newsworthy but that readers love. For instance, “Uncle Tungsten,” by Oliver Sacks. (I still regret making him spell “sulfur” our way, with the “f,” when he wanted to spell it the old-fashioned British way, “sulphur,” which he’d grown up with.) Ian Frazier’s two-part piece on his travels in Siberia is a good recent example of a beautiful, funny, interesting, old-fashioned piece of writing. A good writer can make you care about anything.

Andy: What do you think are the most common mistakes writers make with style and punctuation?

Mary: Now that I am on the other side of the pencil, having my prose scrutinized instead of scrutinizing the prose of others, I think people should be more tolerant. You can be too rigid in matters of punctuation, and I continue to be bemused by how much people care about it and how sometimes a sentence’s punctuation gets more attention than its meaning. The letters I’ve gotten about an extraneous comma between the two elements of a compound predicate! The letters I’ve gotten about using “gotten” instead of “got” for the past perfect of the verb “to get,” and vice versa! (Some people can’t stand “had got” and prefer “had gotten,” which The New Yorker style book characterizes as “country style.” That is a usage I have started to defy.) But here I am, using up my lifetime quota of exclamation points, so I’ll just say thank you, Andy, for getting the ball rolling (cliché!). It’s heartening to see that there is such passionate interest in matters of style. Sometimes it looks as if everyone wants to be a copy editor.

Attorney Helen Sedwick on Legal Issues for Book Authors

Today we are going to interview Helen Sedwick, business attorney and author of Self-Publisher’s Legal Handbook: The Step-by-Step Guide to the Legal Issues of Self-Publishing [Ten Gallon Press, 2014]. The book is available in paperback and as an ebook. It’s geared toward self-published authors, but the information equally applies to authors who are considering publishing with a small or large commercial publisher or a hybrid publisher. It has great advice. It’s easy to read. If you are intimidated by lawyers (or agents), this book will be indispensable.

Andy: Helen, welcome to “Ask the Agent”. Let’s start out by you telling us what you see as the biggest legal risks for writers?

Helen: Many writers assume their biggest risks are defamation and privacy claims, but I disagree.

Every year, hundreds of thousands of books are published, and only a few hundred defamation or privacy cases hit the courts. But tens of thousands of writers have signed on to unfavorable contracts they come to regret.

I have seen contracts where the author grants a self-publishing company or small publisher an exclusive license to exploit a manuscript in print, digital, audio and any other format, in any language for the life of the copyright. No reversion, no termination provision, little or no advance!

Yet, many writers don’t even read their contracts. One told me a contract looks like 5000 words run through a blender!

I am something of fanatic about this. I believe any writer who can master plot, character, and voice is capable of understanding key provisions of a contract, particularly the grant of rights clause. All they need is the right information. In the Appendix of Self-Publisher’s Legal Handbook, I include a line-by-line explanation of key contract terms.

Andy: But many writers are afraid to show their manuscripts to agents, editors and film producers because they are sure their work will be stolen. Isn’t that a big risk?

Helen: In reality, industry professionals are not likely to steal someone’s work. Being accused of stealing work would damage their reputations, and maintaining a good reputation is worth more than an untested manuscript.

Protecting ideas is a different matter. The basic idea of a work is not protected by copyright. In some industries, ideas are protected by Non-Disclosure Agreements, but in the publishing industry these agreements are rare. From what I have heard, anyone who asks for an NDA is seen as a newbie. Andy, is that your experience?

Andy: I agree with you there, Helen. Sometimes I get clients who want me to represent them, but don’t want to tell the publisher what the book is about. I always tell them that  we can’t play “no peaky” when we are asking them to pay an advance.  How else can writers protect their copyrights?

Helen: Writers should understand that they own the copyright in their work as soon as they put it down on paper or a hard drive. It’s automatic, whether or not the work is published or the copyright is registered.

But it makes sense for U.S. writers to register their copyright with the U.S. Copyright Office. Registration establishes a record of the work and is required before an infringement suit is filed. Registration within three months following publication increases the damages recoverable in an infringement action. Online registration is $35 and easy. No lawyers required.

Andy: I should point out that a lot of the book contracts from commercial publishers obligate the publisher to register the work with the Copyright Office. But some publishers require the author to do this.  Let’s go to back the problem of defamation and privacy claims. How can writers use real people in their work without ending up in court?

Helen: Writers use real people in their writing all the time, either as models for fictitious characters or by name in nonfiction. If they couldn’t, I suspect 95% of books would disappear.

But there are legal risks in using real people; defamation, unauthorized disclosure of private facts, and misappropriation of the right of publicity. Here are a few measures writers can take to minimize the risks.

For starters, writers should not print, tweet, or post anything they would not say in a room full of lawyers, at least without consulting with a lawyer.

Fiction writers should mask distinguishing characteristics and avoid retelling life stories too closely. The more villainous the character, the more the writer should mask. They should also use the standard disclaimer in their novels: “This book is a work of fiction. Any resemblance to actual events or persons, living or dead, is entirely coincidental.”

Non-fiction writing involves more risk. Writers should take the time to educate themselves about the elements of defamation and disclosure of private facts. I summarize these claims on my blog.

For instance, writers should not say someone is criminal, sexually deviant, diseased, or professionally incompetent or use labels such as crook, cheat, pervert, or corrupt. They should stick to verifiable facts, and let readers come to their own conclusions. In other words, show, don’t tell.

Andy: Let’s look at a real situation. I represented an author, a former paparazza, who took a photo of a famous movie star smoking hash by her front door. The picture was all over the tabloids. Would the author have legal exposure if the picture were in the book?

Helen: Unlikely.

Writers may be liable for disclosing private facts about an identifiable person if the facts are “offensive to ordinary sensibilities” and “not of overriding public interest.” What is offensive and what is public interest? Ultimately, a judge or jury decides, but generally the information must be very private and damaging.

As a preliminary any conduct in public is not protected, particularly today when everyone carries a camera. Public figures have almost no reasonable expectation of privacy. The starlet in your client’s image should not have been surprised that cameras are pointing her way.

Information in publicly available court documents and news reports are also not private.

However, writers should be careful about the misappropriation of the right of publicity; namely, using someone’s name or image for advertising or promotional purposes. Writers should never use anyone’s name or image on a book cover, advertisement, or in any way that implies an endorsement without express permission. Using someone’s name or image within a book as part of the editorial or creative expression is different; writers have more leeway.

Only living people (and in some states companies) can make defamation and privacy claims, but in many states the right of publicity survives death. In California, for 70 years. In Indiana, 100 years.

When in doubt, writers should engage an attorney for one-on-one advice.

Andy: Writers love to use song lyrics as part of setting a scene. Is it safe for a writer to use only a line or two of lyrics buried deep in the body of the book?

Lyrics are intellectual property, like text and images. If a writer uses someone’s property without permission, whether it’s a car, a bicycle, or the words to a popular tune, he is violating their property rights.

Using lyrics is particularly risky, not because they are special in the eyes of the law, but because they are owned by music companies that aggressively protect their rights. A writer could get a “cease and desist” letter from some big law firm. Translation–shred every copy of the book, even though the infringing words are 25 out of 95,000. Worse, a writer could be liable for monetary damages.

There is no need for writers to take these risks. Asking for permission is not difficult or expensive in most cases.

On my website, writers can download a PDF with instructions on how to identify who owns a song and how to ask for permission, How to Use Memorable Lyrics Without Paying a Fortune or a Lawyer. I have a similar PDF for using images.

Andy: Helen, I’m a little surprised by this. I represent a biography of a recently deceased songwriter and performer. The title of the book is the title of one of songwriter’s most famous songs. And the author wants to use an occasional line or two of lyrics as chapter headings. Isn’t there a Fair Use Doctrine that allows you to use a minimum amount of lyrics or other copyrighted material without a permission? What about the title of the song being the title of the book?

Helen: I would encourage the writer to seek permission. If that’s not possible, then this is a perfect example of when someone should consult with an attorney on how to minimize risks. Sorry to punt here, but there is no one answer fits all.

While we are talking about titles, what if another  writer releases a book using the same title as mine? Are there any legal claims?

Most writers are surprised to hear that titles are not protected by U.S. copyright law.

It’s ironic, really. Anyone who has written a novel will tell you how difficult it is to come up with a title that is resonant and eye-catching. Yet titles are not protected under copyright law, because they are considered too short to contain sufficient “original expression.”

A very famous title or the title of a series may become a trademark however. If a writer’s title becomes as famous as The Da Vinci Code, then it’s time for to consult with an attorney about trademark protection. This a problem of success. I hope all our readers have this problem.

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Writer and lawyer Helen Sedwick uses 30 years of legal experience to show writers how to stay out of court and at their desks. ForeWord Review gave her Self-Publisher’s Legal Handbook Five Stars, calling it “one of the most valuable resources a self-publisher can own…well-written and authoritative yet unhampered by legalese.” Her blog coaches writers on everything from protecting copyrights to hiring freelancers to spotting scams. For more information about Helen and her work, check out her website at http://helensedwick.com

Disclaimer: Helen Sedwick is an attorney licensed to practice in California only. This information is general in nature and should not be used as a substitute for the advice of an attorney authorized to practice in your jurisdiction.