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Entertainment Attorney Christopher Schiller talks about the legal and business pitfalls you may face when expanding your web presence as a writer.

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There is an aspect of being a modern writer that's staring you right in the face at this moment and you might be wondering how to make use of it to your advantage without screwing up your career or worse. This article is all about the legal and business pitfalls you may face when expanding your web presence as a writer.

The Who, What, Why and Where of the World Wide Web

Social media, blogs, podcasts, web chats, online commentary, personal pages, professional pages and more, the web is aptly named because it connects lots of disparate areas of communication. A misstep in any one of these areas can cause entanglement and problems. And each area presents its own potential traps and opportunities. The one thing they all share is a limited perspective into the participants. Like a shattered mirror, each platform offers only a fragmentary glimpse of who is speaking. This can be catered to your advantage, or accidentally can reveal aspects of a person that does not truly reflect who they really are.

Every form of communication has limitations and expectations in its makeup. Consider the differences in traditional conversation forms when corresponding with someone by handwritten letter or talking with them on the telephone. The letter writer is expected to have given more considered thought to the message. The phone conversant can be flippant and sarcastic because they can immediately judge how well the tone is being taken by the other side and adjust. Understanding the best way to use the medium allows not only better communication, but, provides a way of controlling the impression you leave with the recipient.

web presence

Different web platforms bring with them different expectations and different social conventions. No one expects an in-depth discourse over Twitter. But a professional web page is expected to be business like. A personal blog can be casual as well as thoughtful, a podcast is anticipated to be on topic and informative. Of course, expectations can be counter programmed, but, knowing what the receiver is geared to has to be taken into account before twisting things and surprising them.

And a web presence in different media allows the creation either intentionally or by happenstance of a perceived Personae which may or may not reflect a true image of the speaker. You can use this to your advantage or suffer its peril in equal measure.

Some forms of communication are difficult in certain media. Sarcasm doesn't translate well on the web generally. And authority is difficult to convey in the shorter varieties or where the identity of the speaker is difficult to confirm.

So far, I haven't touched on anything ground shattering. The particular complications I'd like to address next are those that affect anyone who is attempting to have a career in the public eye, like a writer, while also utilizing the electronic communications communities at hand.

Getting noticed, but, for the right things

Writers write. Unless you place your tomes in a bottle and throw them out to the whims of the tides, you likely want to get your writing in front of an audience. Sometimes any audience will do and the web provides plenty of opportunity to find an audience that likes what you've written. You can use it to get noticed, but, when pursuing a career you have to be aware of the impact – intended or otherwise – that attention given to your web presence can have on your goals. Done with care, you can use writing in other mediums to get noticed by those in the industry.

Take the example of Academy Award winning screenwriter, producer and director Diablo Cody. From her own account, Brook Busey-Maurio assumed her nom de plume and wrote a memoir about her life experiences with no intention of becoming a screenwriter. She continued writing in her unique style for her web blog. A Hollywood agent found her blog, liked her writing style and asked if she'd ever written a screenplay. She hadn't, tried it and the resultant Juno was eventually quite well received. Her career expanded from that.

The key to take away from her experience is that her unique writing style, acerbic and quirky wit, was evident in every form of writing she practiced. Her voice was and is specific to her. And she used the different media in a consistent manner, expressing what her audience has grown to expect from her. She continues to do so as a recent Twitter post can attest:

Diablo Cody @diablocody
I don't get why people are so wary of me when I'm just a charismatic sex addict who enjoys creating turmoil.
5:07 PM - 24 Dec 2014

With Diablo Cody, you know what you're getting and if that appeals to your sensibilities you can rest assured she'll deliver that flavor in her next project. That's a smart approach to using your web presence to your advantage.

There are other ways of cultivating a web presence to serve your needs. It is not unknown to attempt to use social media and other web venues as marketing tools to promote an agenda. I use the term “attempt” because in my experience these rarely achieve the goals they set out for themselves. The web is a quick to judge and hard to fool arena, and a generic or slap dash publicity campaign is doomed to failure in such an intelligent and discerning environment. Many online reputations have been sullied by not attending to social media accounts personally. Even a well-meaning publicist won't be able to fool the public into thinking they're you for long. And reputation is important and hard to repair once broken.

Studios know this well. They can see millions of dollars fall through the cracks with an ill-timed misstep by a talent under their care. This is why, for sensitive subjects they often include a morals clause in their contracts with key personnel. These clauses allow the studio to hold the talent to a higher standard in their personal decorum while under contract. It is an attempt to control outlandish acts or appearances of impropriety from impacting the employer's bottom line. Those writers who've agreed to morals clauses in their contracts need to be fully cognizant of the reputation they place into the public view, which includes how they appear in their web presence. It may or may not mean a cessation of tweeting, say, but an application of considered prudence may be a best tact even if not contractually obligated to use it. Reputation is everything in this business.

Robbing Peter to pay Paul – what to write where

But writers write. If you've chosen writing as a career, you probably don't limit yourself to just one form of written expression either. Care and consideration needs be taken when writing in other media than the main income providing one. Contracts often specify limitations of exclusivity for writers. Typical screenplay contracts and union rules stipulate that the writer cannot write any other scripts while under contract to deliver the requisite drafts due. This is supposed to ensure that all your screenwriting creativity is clearly targeted at the work you're being paid big bucks to deliver. But does that mean you can't keep up with your blog entries? It might. You need to make sure that any other writing activities you wish to continue to pursue are not restricted by the terms in your contract. If you have a medium of expression that benefits you in other ways, you might want to specify that you are allowed to continue its pursuit in any contractual arrangement, or at least make sure the powers behind your new paycheck are okay with your secondary activities. There are many screenwriters that have other writing jobs. Some of them are columnists at this magazine. It is possible to be a working screenwriter and continue to express yourself in social media or more formal written communication venues while doing so. A great example is how screenwriters John August and Craig Mazin share a regular podcast on screenwriting and things of interest to screenwriters called Scriptnotes without interfering with their busy screenwriting careers. Making sure everyone is okay with the arrangement, and making accommodations to those who have issues about it, is the best way to keep your various writing lives separate and thriving.

With great power comes great responsibility (web reference of a different kind)

There are other aspects of writing on the web that a writer should be careful with. With any public figure there are opportunities to promote causes that are dear to your heart. You may need to review these intentions with your prospective employers to make sure the associations are acceptable, or at least not objectionable to them. And public figures are approached for endorsements of products and services all the time. You need to be aware of whether giving a nod to a particular brand is going to close certain doors to you career-wise. Look past the short term financial attraction such an association brings to make sure you are not shorting your reputational assets in the long term. Remember, reputation is everything, and can easily be damaged.

Living life at least partially exposed on the web can lead to several seedier sides of the medium. Having a public personae often attracts those who want to disparage it, sometimes viciously. Trolls thrive in the websphere seemingly just to be able to hurt those they can. The more you share on the web about your real life the more fodder they have to attack. The anonymity available to a lot of the web as well as the immediacy and intimacy of contact exposes the participants to this unwanted vitriol. Unfortunately much of it, though hateful and bad on so many levels, seldom rises to legally actionable levels. The First Amendment protects a lot of people's right to be full blown assholes. Though there is the possibility of the worst of these to be found guilty of defamation or if the threats are particular and violent, criminally prosecuted, the difficulty of finding a satisfying resolution is remote. You need to recognize that putting yourself out there is real exposure to the real world, warts and all. How much you share should be weighed according to how much you might be willing to take.

And consideration of what you share should also take into account that the web is a public forum. It's equivalent of having a loud conversation in the middle of a crowded mall. Anyone can overhear what you might have intended to be private, and there's no taking it back. Once exposed on the web it is likely that it will never be fully rescindable. Photos of you enjoying yourself at a college kegger may still be around when you apply for that job. Take care prior to sharing something that you might regret later. And as those unfortunate souls at Sony have recently found out, even private internet communications can be exposed. Even if criminally accessed, once made public the impact of what was said has long staying power. A prudent suggestion is to consider whether what you intend to say would be embarrassing or worse if it was overheard by someone else when you said it.

Once said, who can say it again?

The final aspect I'll touch on here is the legal ownership of things said on the web. As with anything fixed in a medium of exchange, nearly all web based writing qualifies for copyright protection. Even tweets have some potential for protection even though they're only 140 characters long. But because of their brevity, they might not be as fully protectable, especially if they are not very creative. The class of “Me too,” tweets are pretty much what legally would be termed de minimis speech, not enough to bother protecting. But things like the quote above from Diablo Cody are sufficiently unique to qualify for copyright. My use of the quote though is pretty much smack dab in the purview of the defense to copyright infringement labeled in U.S. law as fair use, because I've used it in a commentary as part of a journalistic report on a relevant topic. Used in another way by someone else, say in an advertisement for a film potentially implying endorsement of the Twitterer, though might not be as clear cut. Still, in the end to be certain, a judge would have to decide, if it were really bothersome.

So what if you wanted your web missives to be shared freely without the new user worrying about copyright or ownership issues or seeking permission? Luckily there is a very useful facility to allow you to automatically license whatever use you wish to allow by using the Creative Commons licensing scheme. They've developed a wonderful system for web based or any other media to be shared more readily while still respecting the legal ownership and national laws governing creative works.

As usual, I have just touched the surface of things to think about as you write your various forms of expression in the different media available to you. Hopefully I have clarified at least what questions you need to ask going forward. What course you take and how you go about it, is up to you. After all, it depends.

Get more advice in Lee Jessup's book
Getting It Write: An Insider's Guide to a Screenwriting Career

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