Peter Shaver on writers and the law

Part 1: Writing about other people

Joining us for this month’s a Q&A is lawyer Peter Shaver. Through his law firm Sound Advice, which is located in Portland’s Hollywood District, Shaver works with creative professionals on legal issues related to arts and entertainment, intellectual property, general business, and the Internet. Many of his clients are in the music industry.

Shaver came to Portland in 1991 and founded Sound Advice in 2006. He currently lives in the Cully area.

What attracted you to arts and entertainment law?

I have always loved art, music and media. Prior to law school, I worked in the film exhibition business and at various ad agencies. I have been an avid music fan as long as I can remember. In law school at the University of Oregon I ran a student art law group, and I worked for a professor who allowed me to work with bands and artists as part of projects he was consulting on.

I love working with creative people and businesses, being part of their team and freeing them up to be more creative, while solving business and legal issues for them. My days are a never-ending carnival of colorful and interesting clients, many of whom I am pleased to call my friends.

Are you an artist yourself?

Not an artist per se, but a creative person. I used to play guitar and make sculpture and collage art. These days I take in live music and other cultural events. I also have a gigantic music collection and like collecting vinyl records and music-related posters.

Do you have a favorite author?

David Foster Wallace. I like his vocabulary, imagination and off-the-wall approach to writing and subverting “normal” conventions of the craft.

Let’s get down to business. What legal topics are most important for writers to understand?

Copyright, especially the “fair use” rights contained in the Copyright Act, and defamation (libel), especially as it applies to non-fiction works.

How common is it for writers to get into legal trouble?

Not very, but it all depends on the type of work that is being created. Certain works, especially those involving real people, may be especially risky, if a writer is not careful with facts, or otherwise violates a person’s privacy, publicity or defames them in any way. Writers should be wary of all areas of possible legal violations and obtain a qualified editorial and/or legal review of any works proposed for publication.

Under what circumstances should a writer disguise a real person's identity, such as in a memoir? And how can a writer know if they’ve gone far enough in disguising the person?

“Disguise” is a very loaded term here. Generally, it is best to avoid using the name or attributes of living persons, especially where the descriptions or actions of a character may be viewed as defamatory or invasive of the subject’s privacy.

There is a lot of gray area and decision-making that goes into how much information or description of living persons should be used – either in a non-fiction or fictionalized context. It may be very difficult to determine when a writer has gone too far, or has not adequately blurred the lines between using too much character information. Every situation is different. Generally, the less direct, identifiable information that is used, the better. Or the more such identifying information is changed, the better.

Is it risky to write about a famous person in an unflattering way?

There are various issues related to this question, including legal rights of privacy, publicity, defamation and First Amendment rights. Writing anything false about a famous person can subject a writer to legal action for libel (written defamation), especially if such statements are done maliciously and with disregard for the truth. Even if a writer CAN legally disclose secrets or other facts about a famous person, there may be compelling reasons NOT to. However, the freedom of the press rights in the United States are very strong, and many protections exist that afford writers broad ability to write about famous people.

What about writing about someone who’s not famous, like a relative, friend, or coworker?

Private parties actually have more privacy rights than celebrities or famous people. Extra care must be taken not to divulge private facts or secrets that may be damaging or harmful to a private party’s reputation. The legal standard for proving injuries to such parties are much lower than the standard prescribed for famous persons or those who choose to appear in the limelight. A best practice is to obtain a release or waiver from any subject that might be readily identified in a literary context.

If a writer wants legal advice, how should he or she go about finding a good lawyer?

Personal referrals are always best. Try to find an attorney that is specialized and qualified in any given subject area. Literary and/or art law issues are often handled by intellectual property attorneys with experience in copyright, defamation or First Amendment law. Also, the State Bar for your locality may have a referral service and/or be able to provide information regarding any disciplinary actions or consumer complaints that may have been made against an attorney.

I would not use or rely upon mass-market Internet services, as the results might not be directly applicable to solving any given issue. Personalized interactions with an attorney should be valuable, educational experiences and are a good investment in any writer’s literary career.

Editor’s Note: Join us next month for Part 2 of this Q&A, when Shaver discusses copyright.

Writing prompt: Childhood scene

What was your childhood like? Happy? Sad? Sweet? Chaotic? Confusing? Come up with one adjective that describes your childhood. Then write a scene from your childhood that illustrates that adjective (without actually using the word).

Nerdy Words: Which is it: “Which” or “that”?

By Ann Sihler

An editing colleague of mine who also majored in English often said that she appreciated using her college degree every day in her work. Really? Did she take classes in editing? I wrote many papers for my English degree, but I never took even a writing class in college, much less an editing (or grammar) class.

That must be why, when I started to write freelance articles, my editors often changed my “whiches” to “thats” and my “thats” to “whiches.” For example, “The YMCA hapkido class that will meet on Tuesday and Friday evenings will focus on basic techniques” became “The YMCA hapkido class, which will meet on Tuesday and Friday evenings, will focus on basic techniques.”

At first I didn’t understand why. But I finally caught on, and now I almost never get confused about ... well, which is which.

In grammar-speak, the difference between “which” and “that” has to do with restrictive clauses. But because you and I are even less likely to know what restrictive clauses are than the difference between “which” and “that,” using grammatical terms here is less than helpful.

The real trick is to remember that “which” begins a phrase that is set off by commas and that operates like a parenthetical. It’s an add-on—an elaboration or clarification, rather than a key identifier.

Consider these examples:

“Meet me at the hotel, which is next to the train station.”

“Meet me at the hotel that is next to the train station.”

In the first sentence there’s just one hotel, and the “which” clause is providing helpful additional information about it: its location. In the second sentence, there presumably are a number of hotels, and the specific hotel where we are to meet is the one that is next to the train station. The information following “that” is not just describing the hotel but defining or identifying it.

Here’s an example from one of my early freelance articles, on custom-made pipe organs, that uses both “which” and “that” correctly (finally!):

“In fact, the only part of a tracker organ that uses such modern technology as electricity is the blower, which generates the air that passes into the pipes and creates the sound.”

The “which” phrase is set off by a comma and explains how the blower works; it’s an elaboration. In contrast, the “that” part of the sentence defines the particular part of the organ we are talking about (out of thousands): the one part that uses modern technology.

Got it? I hope so. Because that, as they say, is that.