BY KATHI KAMEN GOLDMARK AND SAM BARRY

The Author Enablers are here to answer your questions about writing and publishing. Together, Kathi and Sam have more than 25 years of experience in book publishing. Kathi is an author, radio producer and former publicist; Sam is a marketing manager at a major publishing company and a freelance editor. They are also proud members of the Rock Bottom Remainders, the all-author rock band founded by Kathi in 1992.

Waking the dead

Dear Author Enablers,

When one writes historical fiction, what are the legal problems that might be faced? For example, if one were to write a historical novel about Oscar Wilde based on his life, would permission have to be granted by his estate?

Mary S.
Stormstown, Pennsylvania

  We asked several lawyers, all of whom covered their faces with their fedoras and refused to comment on the record, referring us to their own attorneys. But seriously, their response indicates that this is an area with some uncertainty about where to draw the line, which is what lawyers do best. One person who was willing comment is historical fiction writer James Dalessandro, author of the novel 1906, who nicely sums up the issues involved:

"I'm remiss to comment on legal issues, as I quit law school before I even got there to concentrate on my true calling as a 'beat' poet. To the best of my knowledge, the dead cannot file lawsuits for several reasons, including the obvious. I know you cannot use the images of some recently deceased icons for trademark reasons: you cannot show a photo, or likeness, of Marilyn Monroe holding up your candy bar and saying 'I'd walk a mile naked for a bite of your Big Boy.' That's commerce, not fiction. When I wrote my novel, 1906, I tried to portray the real characters as accurately as possible—if I took liberties, I changed their names and made composites of them in some cases. I believe in historical fiction, not historical fraud. You can write a novel about Lincoln spending his spare time—if he had any—as a gay burglar, but I would prefer some facts, even in fiction."

Our lawyer friends agree that the dead can't be libeled, that the rights of privacy and the right to protect one's reputation are considered personal rights and they expire when a person dies. We are fairly certain that you would not need permission from the Wilde estate to write about him.

Commercial rights, required if any product spin-offs are planned, do not expire upon death. Since you are not doing any Wilde merchandising—you're not planning to sell any Oscar Wilde bobbleheads, are you?—this seems outside the scope of your question.

We believe it is only fair to give Oscar Wilde himself the final word: "Biography lends to death a new terror."

Dear Author Enablers,

I have an agent who is supposed to be marketing my two books. After three years, I have sold neither book and have only about six rejection letters from publishers. What should I expect now? Should I get a new agent? (My agent is a reputable member of AAR. He is regularly selling books, just not mine.) Is it OK to ask for a list of all the publishers he's sent my books to?

Dara S.

There's an old showbiz joke that came to mind when we read your e-mail. The G-rated version goes something like this: A best-selling author comes home from book tour and finds his house ransacked, his family nowhere to be seen. He asks a neighbor what happened. "It was unbelievable!" the neighbor replies. "Your agent came over and chased your wife and kids out of the house. Then he hired some strippers, several clowns on unicycles, a loud rock band, and invited an NCAA basketball team and their cheerleaders over. He ran through all your food and liquor, and when he was done he took your car and drove off." The author stares at the house, and finally stammers, "My agent came to my house?"

Most of us don't get as much nurturing attention from our agents as we'd like. That's probably ultimately a good thing, since if they spent all their time coddling authors, they'd never have time to sell our books. That said, apparently not much is happening for your books at this point. We suggest that you have a heart-to-heart discussion with your agent. You have every right to ask where the book has been submitted. Make it clear that you need to know that he is actively pursuing something for you, and if he is not, why. Then you both must decide if you want to continue working together. This is a business relationship, and it requires mutual agreement on any course of action.

Thanks for writing,
THE AUTHOR ENABLERS