"I am seeking advice to become a self-published author under a pen name. What are the proper steps to secure and protect my writing? Do the rules vary from state-to-state? (I reside in Florida) I envision a symbol attached to my pen name and using a service like Lightning Source to publish. For tax purposes. what would be the proper way of doing things? Ensuring that my identity isn't revealed, proper copyrighting, etc?
George C. Gardner III: Self-publishing can be an exciting but demanding path. Your plan raises a number of considerations, so I’m going to focus on a few that are the most important.
First, protecting your writing is fairly easy. Federal law gives you ownership of your work (a “copyright”) from the moment you type it into your computer. But to establish an official public record of your work, and to enforce your rights against anyone you believe is infringing on it, you need to register your writing with the U.S. Copyright Office. Registration is relatively inexpensive—just $35. And there’s no need to wait—you can register your writing even before you publish it. Remember that the information that you include in your copyright application is public. So, if you want to keep your true identity private and separate from your pen name, file the application using only the pen name.
Second, regarding the pen name itself, copyright protection is not available—you can’t get copyright ownership of a name. But you can obtain trademark protection. The most basic protection is available just by using the pen name in commerce—for example, by advertising or selling your books in a national publication or on a website that people outside of the state can access. This interstate aspect of use is a prerequisite for registering your trademark with the U.S. Patent and Trademark Office (“USPTO”). (Alternatively, you can file for federal registration on an “intent to use” basis.) While more expensive than copyright registration ($325), trademark registration is worth the investment.
As with copyright, you obtain greater security and a broader ability to enforce your rights by registering your pen name. Start by ensuring that no one has already trademarked the pen name you want to use. You can do this for free in the USPTO’s Trademark Electronic Search System. Keep in mind that this is a fairly elementary search, and you may want to use other online databases, or even a trademark search company, to complete a thorough search. You will have to file a disclaimer stating that the pen name is not the name of a real person. And if it is, you will have to obtain that person’s consent. In addition to federal protection, you may be entitled to protection under state laws governing “unfair competition.” This same process applies to registration of any symbol you want to use with your pen name.
Third, you’ll want to consider the terms of any agreement you make with an on-demand publisher. Remember that from the start, your copyrights give you the exclusive right to copy and distribute your work, among other things. When you work with an on-demand publisher, you will have to give the company permission (license) to do things that you otherwise have the exclusive right to do. Decide whether you want to give the publisher the rights to make your books available in print only, or whether it should have the rights to make “derivative works,” like making the print book available online. If you think you may want to work with other publishers, or with a particular publisher for a limited time, ensure that the license you grant is non-exclusive. Also, you’ll want to specify that the on-demand publisher can use your pen name only for the purpose of publishing.
There are other considerations, but covering these issues should get you off to a good start. Best wishes!
"I have watched the trials and read the commentary on the Michael Dunn and George Zimmerman cases but one thing always escapes me: how is it on these criminal trials that it seems that there are just so few black and Latino jurors? The Zimmerman trial had one person of color and the Dunn trial had one black person, but why wouldn't the attorneys choose more? Can someone please break down the jury selection process in criminal trials in a way that makes sense? How are jurors selected and why wouldn't attorneys pick jurors of color in a case with clear racial implications?"
Charles F. Coleman, Jr.: Jury selection is like that critical but often overlooked piece of a puzzle that folks only really notice after something seems to have gone terribly wrong. As it relates to the two cases mentioned in your question, the issue of juries and their selection took on a larger focus primarily because many felt that the verdicts would have been different if the evidence had been considered by jurors of color. Without discussing the specific juries in either of those cases, let’s have a look at the process of jury selection itself.
First off, the title of “jury selection” is a bit of a misnomer. The term selection implies that the jurors are affirmatively chosen by the attorneys. This isn’t actually what happens. Prospective jurors are eliminated and the sitting jury who hears the case is essentially comprised of those individuals who remain. In effect, it’s a process of getting rid of the undesirables and working with whomever is left over. Attorneys aren’t able to point to a juror and “pick” them to serve.
So how does it actually work?
Well, think of it like the beginning of The Price is Right. You start with a sampling of the jury pool “in the box” which means that the entire jury box (the section where the jury sits) is filled with individuals who have appeared in response to a notification for jury duty (you know those things that are mailed to your home that folks try their damnest to avoid or ignore? Yeah, those.). Depending on the type (civil or criminal) and level (local, state, or federal) of court, there may be higher numbers of prospective jurors placed in the box. The judge will ask everyone in the box a series of questions—usually the same or similar types of questions, but not always—about their background, family, profession, and other key indicators which may give either attorney some insight as to whether a juror might be more favorable to either side. The judge’s only concern is determining whether the prospective juror can be fair and impartial. Next, the attorneys will often ask a series of timed questions to the jurors, sometimes completely different than the judge’s questions, other times following up on answers which may have sparked intrigue. The lawyers are searching for any glimmer of insight which might provide them with an idea of whether this is the right juror for their case. This process is what you may have heard referred to as voir dire which is just a fancy term for examination.
After the voir dire, the jury is usually excused from the court so that counsel and the judge may discuss the objections and challenges to each juror outside of the jury’s presence. The reasons for this are somewhat obvious; attorneys would like to avoid a juror knowing that he/or she may have been the subject to a challenge because if they were ultimately still picked for the jury, that could bias them against whatever side attempted to make the challenge. There are two types of challenges for a juror sitting on a panel. The first is a challenge or objection on cause. This essentially means that there is a good and neutral reason why the person should not be a juror. It usually relates to what might amount to an obvious inability to be fair and impartial given the set of facts involved. For example, if someone declared themselves during voir dire to be a racist or to hate cops, and this is a case where there was heavy police testimony, or the defendant was of a particular race that the prospective juror “hated”, it is likely that both attorneys and the judge would strike that juror because of “cause”. Cause challenges are unlimited but must be agreed upon by both sides and the judge.
The second type of challenge is “preemptive” which are limited, available to both sides, and much more strategic. An attorney doesn’t have to have a reason for striking a potential juror by way of a preemptive challenge, but must be careful to use the limited number of challenges on the jurors they feel will be least helpful to their case. How do they know? They don’t. Jury psychology is one of the most nuanced and continuously studied areas of jurisprudence. You can never actually tell how someone will be as a juror, but often rely on educated guesses about whatever profile you have been able to create of them based off of their limited voir dire answers. It is a combination of stereotyping, emotional intelligence (gut reactions) and some lucky guessing. After several times of doing it, some attorneys are very adept at this process, although it hardly ever becomes a science.
After the challenges, both for cause and preemptive, the jurors who are left comprise your panel. If the challenges have decimated the pool that was in the box to a level that those remain are not enough to form a complete jury, the process repeats itself until the remaining number of jurors have been “selected” and the trial will begin.
A few quick things to remember:
- There is no such thing as the “perfect” juror. A good juror for one case may be a bad fit for another case. What attorneys value most in picking jurors are smart people who have common sense, open minds, and who can follow directions.
- Jury duty is a civic responsibility that we all must obey. Your notice will not tell you that you are being subpoenaed for the trial of the century, but failing to show up could lead to the same type of injustice that prompted this question in the first place.
- This is not the club. Show up on time to jury duty! You can’t get picked if you are not in the pool. Sometimes “CP” time can be the death of us all.
- If you are picked for a jury, throw out everything you may have seen on Law & Order, or heard from your second cousin twice removed who took a LSAT prep course. Let the lawyers (and the judge) do their jobs!
Hopefully this helped provide you with a better understanding of how the jury selection process works and demystify some of the issues associated with what happens after you get that notice in the mail.
Nothing in this column should be construed as legal advice, and is offered as information only. Readers are advised to consult an attorney with knowledge of the specific state laws within their local jurisdictions.
George C. Gardner III is a graduate of the Howard University School of Law and has practiced in government, nonprofit, and private sector settings. His experience includes constitutional civil rights law, commercial litigation, and transactional matters in the small business context. He is licensed in the State of New York where he has recently transitioned into solo and freelance practice. Follow him on Twitter: @ggiii.
Charles F. Coleman Jr. is a former Kings County (Brooklyn), NY prosecutor and presently functions as a federal trial attorney specializing in civil rights and employment discrimination. Follow him on Twitter: @CFColemanJr.