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Brenna Lyons Hangs Up Her Bankruptcy Law Shingle

Brenna Lyons is way unhappy with me (Jane for those who don’t read the “stamped by” or for the bloggers (read me) who chose the incorrect author when posting guest columns)) and according to her supposedly are the Triskelion authors to whom I am doing a great disservice. Her first complaint with me was that I was somehow moderating her comments and preventing them to appear. This was a surprise to me since her epic long contributions appeared on the thread last week. But after I commented on her blog that we don’t moderate posts, she acknowledged that while it posted, it took a long time and I must have had a hand in it. I do have hands and they are places so perhaps they are doing something that they shouldn’t be doing. I’ll talk to my hands later.

Her second complaint, as far as I can tell, was that I suggested her “advice” to other authors about the bankruptcy law was inaccurate. This was wrong because Lyons claims to have done her research when she compares her contract with publishers similar to the contract between the lessee of a rental car.

I feel from the LARGE CAP POSTING IN THE TITLES and the long verbiage in the body of her posts that Lyons a) wants to be the authorial mouthpiece about bankruptcy law and b) isn’t quite getting the attention that she desires. Plus, it appears she enjoys flogging her upcoming seminar that she is “teaching” at RT 2008 about how to pick a good publisher. I felt it incumbent to reply to the plea for validity she is putting out. And to ensure all those allegedly pissed off Triskelion authors that they are totally safe in the hands of Brenna Lyons because in my experience, those people who haven’t gone to law school and who don’t practice always understand the nuances of law.

Lyons believes that there is no difference between property and intellectual property.

Personally, I do not find any difference in what I own, whether it be physical property or intellectual. The fact that the law has to state that IP is owned says a lot about the general population, though.

In my world, Copyright Act is a statutory creation meaning that without the US Legislature deciding to protect Intellectual Property, intellectual property wouldn’t be afforded the protections embodied in the Act. The Copyright Act is a delicate balance between consumer rights and inalienability of property and the encouragement of creativity (the goal behind the Copyright Act). Conversely, the real property right is a fundamental Constitutional right. The Constitution was based, in part, on the writings of John Locke and some purportedly argue that Thomas Jefferson initially drafted the Constitution to say “Life, Liberty and the Pursuit of Property.”

The Copyright Act actually contravenes the idea of the inalienability of property in that it allows Intellectual Property to be parceled out into tiny bundles and sold for a period of time. To strike the balance mentioned above, there are constraints on the rights to Intellectual Property. Those constraints involve time (a copyright is only valid for life of creator plus 70 years); first sale doctrine (once an item is sold, the purchaser has the right to do with it what she will including reselling at a profit without payment back to the original creator); fair use (the right to use the copyrighted work without permission or renumeration under certain circumstances).

Lyons asserts that the bankruptcy laws are trampling the rights of authors.

. The current bankruptcy laws allow the trustee and courts to override copyright laws, as well…which are federal laws and not even the state variety, as contracts are.

My understanding (which is contrary to Lyons and therefore not correct) is that current bankrupcty laws do not override copyright laws in anyway. Both laws are federal schemes although each state might have its own schemes. Lyons believes that because the bankruptcy court doesn’t honor the ipso facto clause that seems to mean that the bankruptcy court is overriding copyright law. The ipso facto clause is not a provision within the US Copyright Act. The ipso facto clause is an agreement between the author and the publisher and one that is unenforceable. You can agree to many things in a contract, but it doesn’t make it a legal right. A contract is merely an agreement between the parties. It creates no rights that do not already exist. If you write into a contract something that is unenforceable, it doesn’t create a legal right. But that is simply my understanding, which according to Lyons is apparently wrong.

Lyons goes on to say that a contract between the author and the publisher is essentially a rental agreement and that because it is so similar, it should not be considered the property of the estate, just as a rental car would not be considered the property of the estate. She reiterates how the bankruptcy court and trustee are allowed to disregard copyrights and contractual rights of authors.

The current bankruptcy laws allow the court and trustee to trample the copyrights and the contractual rights of authors, in the case of a publisher filing bankruptcy. This is a situation that is intolerable and must change

.

In my world, the bankruptcy laws rank creditors according to priority. Secured creditors, those people who obtain an item of value to hold against the money lent, get first priority. I.e., a bank who holds the house as security against the mortgage. Creditors who are not secured then get ranked according to legal status. There are senior classes of creditors, equity interest holders, junior classes. In the Enron bankruptcy, there were over 100 different classes of creditors. It’s the bankruptcy court’s job to determine the number and types of classes as well as who belongs where. Authors aren’t going to get special treatment because their creditor status arises out of an intellectual property claim rather than a real property claim. In my world, of course.

Any belief that these books should be thus constrained is idiotic, at best. THIS is why the bankruptcy laws must be changed and changed soon.

I probably wouldn’t use “books” and “rights” interchangeably because those two items have very different meanings. Books to the bankruptcy court are the on hand inventory which I believe was valued at 60K. Rights, on the other hand, refer to the bundle of rights that Triskelion owned at the time that it filed bankruptcy. Two completely separate assets under the law by which I operate.

Lyons goes on to “teach” more about bankrupcty law and how it interrelates with intellectual property rights and contractual interpretations. Her explanation doesn’t really match up with my understanding, but if it makes a person feel better, I guess where is the harm? Unless, of course, you are relying on the information she provides.

Oh, and one more thing. Lyons claims that I’ve been hostile to her in emails. I would be happy for Ms. Lyons to post our email exchanges. I’ve got nothing to hide. How about you, Ms. Lyons?

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

34 Comments

  1. Jayne
    Sep 13, 2007 @ 07:28:33

    Jane is not at fault for Ms. Lyons’ posts not appearing immediately. I remember that thread and the fact that at least one of Ms. Lyons’ posts got automatically sent to the spam file by our spam catcher software. I try to check the spam file comments a few times a day and recapture any actual posts that I see. Sometimes I don’t have time to scroll through 300-600 spam comments at a time and might miss a real post. My apologies to anyone who’s post never made it or which took a long time to appear but hey, I have a life. ;)

  2. Kalen Hughes
    Sep 13, 2007 @ 12:40:13

    Personally, I do not find any difference in what I own, whether it be physical property or intellectual.

    Too bad the law does. IP is only belongs to the creator and their heirs for a specified period of time (lifetime of creator + 70 years). Physical property is yours indefinably, until sold or otherwise disposed of (yes, the gov can take it from you in a variety of ways, but I’m not going in to that right now). Hence Micky Mouse will eventually slip in to the public domain, but DisneyLand will not become a free, publicly owned park 70 years after Walt's death.

  3. Robin
    Sep 13, 2007 @ 12:44:57

    Every time I read that car lease analogy I feel the top of my head start to lift off. And the difficulty is that when you DO know the law, and the legal theories behind it, trying to explain all the reasons why that analogy doesn’t work is both time consuming and potentially really confusing for the lay person. I didn’t used to understand how thoroughly the law is a paradigm unto itself, and how different it looks from the inside out as opposed to the outside in. I completely understand how people derive certain generalizations from their experiences with legal things, but to suggest that the entire bankruptcy code is “corrupt” (it’s long and heavy, I’ll give you that) is quite a generalization, with some significant implications attached.

  4. Robin
    Sep 13, 2007 @ 12:48:49

    One of the interesting things about IP law right now is how many in the field believe that the law offers TOO MUCH protection, to the point where it discourages creativity and competition and is detrimental to the welfare of the public sphere. So if the tide is turning at all, it’s turning against some of the existing copyright protections, especially in regard to time period.

  5. Anon
    Sep 13, 2007 @ 13:19:54

    Okay, Jane. You’ve got the right answer here but there are a number of things you see here that are wrong. Most importantly, while there are a number of differences between real and intellectual property. One of those differences, however, is not that real property is afforded constitutional protections under the Fifth Amendment and intellectual property is not. Sure, IP is created by the federal government, and sure, if the federal government didn’t recognize it, it wouldn’t exist. Nonetheless, having recognized intellectual property as a fundamental right, the due process clause requires that IP be afforded precisely the same protections under the Constitution as real property. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04 (1984) (“That intangible property rights protected by state law are deserving of the protection of the Taking Clause has long been implicit in the thinking of this Court.”).

    I can’t comment on the rest of this, but I think you’re making a number of errors there, as well. You have the right answer but for the wrong reasons.

  6. Jane
    Sep 13, 2007 @ 13:27:05

    You are right that this statement “In my world, Copyright Act is a statutory creation meaning that without the US Legislature deciding to protect Intellectual Property, there wouldn't be protection.” I had edited that sentence and left off the ending. I do believe though, that IP rights are conferred special statutory protection via the Copyright Act and that those rights conferred are not fundamental rights as most legal scholars would characterize fundamental rights. The point I was attempting to make, albeit inelegantly, is the copyright laws and property rights are not created equally and to compare an intellectual property right to a real property right would be inaccurate.

    As for the rest of the “errors” you would have to point them out. I feel on pretty safe ground here.

  7. Jane
    Sep 13, 2007 @ 13:37:25

    I would also add that if you did not have the Copyright Act, I think it would be quite difficult to create a legal basis upon which to prevent “stealing”. I.e., the only thing that the Act actually does is provide a vehicle by which you, as the owner of the copyright, can sue someone else. Alan Greenspan spoke on the conflict between IP rights and real property rights.

    “From an economic perspective, this provides a rationale for making calculus, developed initially by Leibnitz and Newton, freely available, despite the fact that those insights have immeasurably increased wealth over the generations. Should we have protected their claim in the same way that we do for owners of land? Or should the law make their insights more freely available to those who would build on them, with the aim of maximizing the wealth of the society as a whole? Are all property rights inalienable, or must they conform to a reality that conditions them?”

    I think even the Copyright Act denotes the IP rights are personal property rights which is viewed quite differently than real property rights.

  8. Ann Bruce
    Sep 13, 2007 @ 13:38:35

    I know this is a serious post, but, Jane, you ruined the sombre mood with:

    I do have hands and they are places so perhaps they are doing something that they shouldn't be doing. I'll talk to my hands later.

  9. Keishon
    Sep 13, 2007 @ 13:53:24

    that Lyons a) wants to be the authorial mouthpiece about bankruptcy law

    Let her have it because you’d be a fool to follow anybody’s advice online rather than seek legal advise/counsel elsewhere. However –

    and b) isn't quite getting the attention that she desires.

    I strongly suspect that this is the case. Hell, I didn’t even know who she was until you posted. And legalese bores me to tears honestly. Peace.

  10. Jane
    Sep 13, 2007 @ 14:15:55

    AnnBruce – apparently my hands are in the clear and the fault clearly lies with Jayne’s hands. I’ll have my hands give her hands a good talking to.

    Keishon – oh, I know. Legalese bores even lawyers.

    Anon – I had to go look up the Monsanto case which, unfortunately, does not stand for the proposition for which you cite it. In fact, it actually contradicts your point.

    ‘[p]roperty interests … are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'

    Essentially what I said. IP rights are defined by the rules of the Copyright Act (and enforceable through that Act).

    Intellectual property is not a fundamental right. A fundamental right is one that is in the original grant of Constitution. Fundamental rights and violations of those rights are subject to a “heightened scrutiny” by the courts. Intellectual property does not fall within that category.

    Monsanto, which deals with trade secrets and the takings clause (which is a due process issue as due process deals with procedural rights v. substantive rights and IP rights would be substantive rights), case holds that EPA’s dislcosure of data was not a taking during a time in which there was no statutory protection for trade sectets and it only considered Monsanto’s property right to a trade secret when it was recognized by the Missouri state law as a property right.

    The discussion (not the holding, a key legal interpretation point) about whether intangible rights could be subject to the “Taking Clause” and thus allow the owner of the right renumeration from the government, was not actually conferring or recognizing any intangible rights as fundamental.

    In any event, not a great case to cite in support of your claim that IP rights are fundamental.

  11. Sarah McCarty
    Sep 13, 2007 @ 15:01:13

    you'd be a fool to follow anybody's advice online rather than seek legal advise/counsel elsewhere.

    Amen. Anyone in a legal situation needs to seek competent legal counsel.

  12. Karen Scott
    Sep 13, 2007 @ 15:22:58

    I couldn’t even be arsed reading the posts on her blog, it was hard enough trying to read them on here last time. Somebody should tell her that sometimes less is more.

    She either wants the attention, or she’s desperately trying to regain some credibility.

    She’ll probably be successful with the former, but I’d say that her chances of being viewed as credible, have been shot to shit.

    I didn’t really know or care about EPIC before, and quite frankly I still don’t, but one thing’s for sure, I wouldn’t recommend anybody to join, even for the miserly sum of $30. Not with Brenna Lyons at the helm anyway. Her ambassadorial skills, or lack thereof, leaves a lot to be desired.

  13. TeddyPig
    Sep 13, 2007 @ 15:43:04

    So far we are two and 0 on the unprofessional nastiness around the ePub bankruptcies. Outright abandonment or smarmy self promotion take your pick of these wonderful writer organizations. Woohoo!

  14. Michelle
    Sep 13, 2007 @ 19:34:57

    Is it a full moon or what? What is with supposedly rational professional people shooting themselves in the foot, and derailing their careers? Isn’t there a saying-keep silent and appear foolish, open your mouth and remove all doubt? All we need is for Brenna Lyons to start representing AP Miller and insult Nora Roberts and we can combine some of the craziness that is going around in blog land.

  15. Jessica Inclan
    Sep 13, 2007 @ 21:53:20

    Frankly, I have no opinion on any of this, and that feels strangely very good.

    Jessica

  16. M.
    Sep 14, 2007 @ 05:52:08

    Do you mean to say that you never read any of Brenna Lyons’ essay posts in boards and Yahoo groups? Frankly, I am surprised. It has been like that for years. As a reader, I stopped reading her posts a LONG time ago because I don’t appreciate her “I know it all” tone and how much she likes to take the “everyone is wrong but me” stance. *shrug*

  17. anonymous
    Sep 14, 2007 @ 06:28:38

    If you think the Trisk authors stuck in this mess are listening solely to Brenna Lyons opinion on this mess, you are seriously mistaken.

    Why Dear Author feels the need to make itself an authority on IP and bankrupty issues is beyond me. I thought this was a place to find reviews, not legal information.

    If you are so sure Brenna is wrong and shouldn’t be giving legal advice, then why should you? Where does your authority come from?

    Unless you have a contract stuck in bankruptcy hell, I would say go back to reading and reviewing books. That suits you better.

  18. Erastes
    Sep 14, 2007 @ 07:30:10

    Hear hear Jane and Kalen. The lady is showing her desperation, what concerns me is any people who might actually believe her words.

  19. Karen Scott
    Sep 14, 2007 @ 07:31:30

    If you think the Trisk authors stuck in this mess are listening solely to Brenna Lyons opinion on this mess, you are seriously mistaken.

    Erm…. I’m pretty sure Jane didn’t say that the Trisk authors got into this mess due to listening to Brenna Lyons.

    From my point of view, she was correcting something that Lyons seemed to be touting as legal fact. To date, at least two other qualified individuals have told Lyons, that she was in fact incorrect.

    If you are so sure Brenna is wrong and shouldn't be giving legal advice, then why should you? Where does your authority come from?

    Erm… cuz she’s a lawyer?

    And in fact, I don’t recall her dispensing any advice, she was correcting some of Ms Lyon’s erroneous statements, and warned about the dangers of dispensing legal advice, when one isn’t qualified to do so.

  20. Karen Scott
    Sep 14, 2007 @ 07:33:09

    I knew I should have just used the quicktags to quote. Dammit.

  21. Jayne
    Sep 14, 2007 @ 07:58:17

    Karen, I went back and fixed your [/i]s. At least my hands didn’t screw that up. :)

  22. Jane
    Sep 14, 2007 @ 08:33:59

    Why Dear Author feels the need to make itself an authority on IP and bankrupty issues is beyond me. I thought this was a place to find reviews, not legal information.

    I don’t know how giving my interpretation of the Bankruptcy law is making dearauthor an authority on anything. In fact, I’ve urged anyone who is in the Trisk mess to seek a lawyer. But if these legal discussions bore you, bother you, etc. I suggest using the mouse and click away.

  23. M.
    Sep 14, 2007 @ 08:59:45

    One thing I’ve seen mentioned repeatedly here is that authors should seek formal legal advice.

    As an additional comment, I haven’t seen Jane’s credentials, but the wording she uses in and on itself is quite revealing. I do strongly believe she does have the background needed to “translate” legalese. But that may be just me … nevermind that I’ve worked for 20 years in the legal field.

    To the Triskelion authors that are complaining to Brenna Lyons, how about you put your time to good use and pick up the phone and start calling a few bankruptcy attorneys in your area? Usually the first consultation with a bankruptcy attorney is free, and that first consultation alone should help clear quite a few things.

    If you fear being ripped off by an attorney (I have worked 20 years in the legal field so I know full well the bazillion misconceptions there are not to mention the jokes that abound on the matter) contact your State Bar Association and I am sure they will be able to provide you some guidance as to how to find a good bankruptcy attorney in your area.

    In other words, be proactive. Going around with complaints is not going to solve anything, plus EPIC (or whatever organization you belong to) is not going to solve this for you or pay the attorney’s bill.

  24. DS
    Sep 14, 2007 @ 09:10:34

    I can say that I quite a fangirl of Jane’s legal posts– clear and concise. And she very wisely does not give specific legal advice. I thank her for being a good role model for the profession and NOT, thank goodness, the stereotypical Internet Lawyer, who 90% has no legal education.

  25. JC Wilder
    Sep 14, 2007 @ 11:16:23

    There are a lot of people, even misguided authors, who receive a perverse thrill from ‘cashing in’ on the misfortunes of others. For anyone to use this situation as a ‘platform’ to show their ‘knowledge’ is just disgraceful.

    I was one of the authors who escaped the fall of Trisk with my work intact because I bearded the lioness in her den. (I take no prisoners!) Even if I hadn’t succeeded in getting my work released, I’d no more take online advice about legal matters than I would congratulate Lil’ Bush for doing a bang-up job in Iraq.

    Thank you, Dear Author & Jane, for stepping into the breach and possibly saving some authors from a great deal of heartache.

  26. R
    Sep 14, 2007 @ 13:50:57

    I don’t know about law, but I know this:

    long verbiage in the body of her posts that Lyons a) wants to be the authorial mouthpiece about bankruptcy law and b) isn't quite getting the attention that she desires.

    is BRILLIANT Sigmund Freud stuff!! :-)

    Brenna is a loud mouth! Her condescending tone and authoritative attitude are just too much to stand. For a while now, any post, book, or paper with her name beside it, I am frankly NOT interested in reading.

    Sorry, Jane, but I just had to say that. I hate when people overtake someone else’s blog and go on and on like a Queen of Bullcrap without even adequate information to back up the things exiting their wide mouth!

  27. R
    Sep 14, 2007 @ 14:05:06

    And feel free to delete my rant just now , Jane – lol.

    It just happens that this morning I was just checking the Brava authors website for info on their Novella contest and LO AND BEHOLD there she was on the message board – with her trademark epic long posts peppered all over the place. In BOLD. Like she’s more important than the others posting. Giving out handy advice to wanna be’s like me – like she’s a Kensginton editor/ author/ heck, the owner! – herself.

    Lord save Brava.

    (Oh, and feel free to delete this rant, too, LOL. It just feels so good to write this.) :)

  28. Jessica Inclan
    Sep 14, 2007 @ 17:38:01

    Here I feel strongly about:

    “There are a lot of people, even misguided authors, who receive a perverse thrill from ‘cashing in' on the misfortunes of others.”

    This is so true, and not necessarily in the form of legal matters but in editing/consulting and other such potentially spurious “expertise.” Caveat emptor truly, for all such purchases. I think that often writers are on their own until they find an agent/publisher/editor, and we have to be careful about the people we hire or listen to.

    To M–I have actually never heard of Brenna Lyons, but now I have, obviously. I’ve clicked on her site and read some material, and perhpas that is the point. All very interesting.

    Jessica

  29. Maria
    Sep 14, 2007 @ 19:57:19

    Even her blog intro about herself is loooooong:

    http://brennalyons.blogspot.com/

  30. TeddyPig
    Sep 14, 2007 @ 20:04:00

    it’s strange irony that Brenna Lyons will become best known for her first love

    … herself?

  31. Lynne Connolly
    Sep 16, 2007 @ 08:17:32

    Sigh. Here we go again.
    Here are the facts.
    1. All ex-Triskelion authors retain the copyright to their work, except in exceptional cases where they wrote a book for a Triskelion-generated series, in which case Triskelion holds the copyright to the parts of the story and the characters in the “bible” (I have a couple of these, and if I rewrite, taking out the characters and the bits of the story in the “bible,” which I still have, the story is all mine again – not that I think I’ll bother).

    2. Our contracts with Triskelion were leases. We leased certain rights in our contracts – basically the right to publish our books.

    3. The main problem is that the bankruptcy clause in our contracts -which basically says that if the company goes into bankruptcy, we automatically get our rights back – can be overridden by the courts, mainly because author contracts (all author contracts, not just Triskelion’s) are signed under state law, and bankruptcy is a federal thing. That’s why organisations like the RWA and the Author’s Guild are taking an interest – this is a serious issue for authors. But we are not talking copyrights, we’re talking rights to publish.

    4. The ex-Triskelion authors do not have a spokesperson, except one person most of us have authorised to speak for us in court. We have banded together in case we need a lawyer, so we can share costs. We speak for ourselves.

    5. Here, speaking for myself and nobody else, I’m more interested in what books I have coming up than the ones I’ve left behind. Sure it hurts to have books tied up in this, but if I worried about that too much, I wouldn’t do anything else. I now have books contracted to Samhain, Ellora’s Cave and Loose-ID, and I’m keeping busy.

  32. anon author
    Sep 17, 2007 @ 10:04:26

    Go offline for a bit and look what happens! Glad I’m not the only one who can’t figure out what BL is getting at half the time.

  33. anonymous
    Nov 30, 2007 @ 18:50:37

    “I couldn't even be arsed reading the posts on her blog, it was hard enough trying to read them on here last time. Somebody should tell her that sometimes less is more.

    She either wants the attention, or she's desperately trying to regain some credibility.

    She'll probably be successful with the former, but I'd say that her chances of being viewed as credible, have been shot to shit.

    I didn't really know or care about EPIC before, and quite frankly I still don't, but one thing's for sure, I wouldn't recommend anybody to join, even for the miserly sum of $30. Not with Brenna Lyons at the helm anyway. Her ambassadorial skills, or lack thereof, leaves a lot to be desired.”

    This is my first time trying to comment so pardon me if my quote of the above didn’t come out right.

    I completely agree with you. I had an unfortunate dealing with Brenna Lyons (before that I never even heard of her) on one of those internet book discussion forums. Let’s just say this woman has some serious insecurities issues. Trying to have a mature calm discussion with her is very difficult. I was shocked to find out that she is 1) a writer 2) a published writer and 3) has a college education. Not only is she the most ineffective communicator, especially given she’s a writer, but her holier than thou and condescending attitude just leaves the reader very little respect for her.

    What I find interesting is if you read her blogs, she’s apparently the best of everything in every profession. Not only is she an “award winning published writer”, she is also an accountant, an auditor, a computer genius, a lawyer, a “perfect thief”, and ofcourse way smarter than the rest of us schmucks. She would have been the US Surgeon General too if she had time between her writing career to pursue a degree in medicine. Let’s also not forget that she is extremely business savvy because she’s the “President of EPIC” and was told she would make a perfect auditor by a teacher. As for her law interpretation skills? No worries, she is very adept in quoting the webster dictionary and posting various biased and loosely interpreted version of US laws from the net. Why would anyone want to pay for the advice of someone board certified like an attorney or a CPA when you can have the wisdom of Brenna Lyons bestow on us? Needless to say, I couldn’t get a word in edge wise amongst all that self promotion and everything I did say was twisted around or blatantly ignored by her. Interesting enough, when I start mentioning my background when she questioned my credibility to comment on matters of business and law, she immediately accused me of flaunting my credentials. All this after she flat out call me an airhead and a ditz. Again, charming person that Brenna Lyons.

    After my experience with her, not only will I NOT buy her books, I will make sure anyone I know not buy her books. In fact, my dealings with her (and a couple of other aspiring writers) have sour my taste in participating in book discussion clubs.

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