Archives for category: Copyright

You can trademark the word cocky! Surely this is ridiculous? Am I in trouble having used the word cocky without permission? Maybe I need to write cocky™ whenever (never up till now) I find the need to write this word?

Vox brings the story of what, almost inevitably, they chose to call Cockygate. Faleena Hopkins, romance author of several cocky books, has trademarked the word cocky in any romance novel series — which gets me off the hook here. Jamila Jasper, the author of a novel entitled The Cocky Cowboy, had to change her title to The Cockiest Cowboy to Have Ever Cocked. (I guess you’ve got to read the book to find out what exactly that might mean.) We are used to believing that there’s no copyright in titles, but a trademark is a horse of a different color. Trademark holders are being aided and abetted by Amazon, ever cautious with their content, who have begun to suspend books with this protected word in their title. A letter from Romance Writers of America has made them suspend their efforts until some legal clarity has been achieved.

When you come to think about it, it’s pretty obvious that trademarking a common word is a perfectly acceptable thing to do. I sit writing these words on an Apple computer — there’s a trademark covering the use of this word for a computer, which has no bearing on the activities of greengrocers, pie-makers, cider brewers, orchard workers and so on. The trademarking is meant to be there because it enables you to know where the goods come from: thus Apple computers come from Apple Inc.. That cocky romance novels come solely from Ms Hopkins is clearly not the case, as so many others are getting fouled up in this tangle. But getting a court to rule on that may be more than any cocky-wannabe author can afford, so Ms Hopkins just may be able to keeps tabs on the title.

I do think we ought to be able to expect the US Patent and Trademark Office to be a bit more careful when granting protection. A single adjective is surely an unlikely candidate for a unique identifier, especially an adjective which has apparently been quite widely used in romance. Now The Cockiest X, Y or Z to Have Ever Cocked: that might begin to be a bit more trademarkable.


Here’s a sample book publishing contract provided by the University of Maine. Not all book publishing contracts will look exactly like this but almost all of them will cover most of the items in this sample.

I wrote about Contracts last year, emphasizing that they are fundamentally just the result of a negotiation. Just because you are offered a pre-printed thing like this doesn’t mean that you have to roll over and agree to everything written therein. A template like this might best be regarded as a starting point. The author does have power — more or less depending upon the commercial possibilities of the book being talked about.




The other day I wrote about the trouble between S. Fischer Verlag (part of the Holtzbrinck empire) and Project Gutenberg.

Here is a cri de coeur from Eric Hellman, originally at his blog Go to Hellman, reproduced by TeleRead. I hadn’t realized how devastating the judgement would be for Project Gutenberg: fatal it seems, as they can’t afford to pay the fine imposed. This is obviously ludicrous. Even the most ardent activist at Fischer cannot really want Project Gutenberg to disappear. One wonders how much income they lose on downloads of the 19 books in question. Not enough to consign all the free reading to the garbage heap.

Rather than fight to the death, I hope Project Gutenberg, if they can’t get the decision reversed, just delete the nineteen books, and let us all suffer from the inability to read Buddenbrooks, for example, for free. Of course that may open the door to other similarly dog-in-manger publishers, but that’d be better than losing everything.

Just as, whenever we have a school shooting in USA, gun sale spike, one consequence of this kerfuffle is no doubt a flurry of downloads of the books in question. I already have print versions of the ones I want, but I almost feel I should download for solidarity.

With the world’s borders dissolving before our eyes, some universal copyright code is desirable — if no doubt unattainable.

As the world gets smaller, ever more closely linked via digits, the grinding of the tectonic plates of different territorial rights regimes is beginning to cause stronger and stronger tremors throughout the book distribution system.

Project Gutenberg, a place we have come to look on as one of the benefactors of humanity with its free public domain offerings, has become involved in a lawsuit in Germany where the difference in rights between USA and Germany has provoked S. Fischer Verlag into action. They object to books which are in the public domain in USA being offered free in Germany where they are still in copyright. TeleRead has the story. Project Gutenberg’s policy on the rights issue has been to warn people that they shouldn’t download files for books which are still in copyright where they live. This putting the onus onto the customer, who is vanishingly unlikely to know what they are even talking about, is obviously not applying any real protection.

Project Gutenberg Australia, apparently unconnected to Project Gutenberg in USA, offers us Americans a download of Sir Arthur Conan Doyle’s The Casebook of Sherlock Holmes. This collection, which was published 1927 is still in copyright in America though anyone can freely obtain it from the Ozzie source.

It’s hard to see how frontiers can be applied to the world-wide-web, though authoritarian governments keep on trying. If information wants to be free, it also wants to be free of passport control. Surely the whole idea of having different territorial rights*, redolent of ships carrying physical books around the world, will ultimately have to yield the new reality. Amazon often lists the UK edition of a book on their US site — you can tell by the odd price, converted from sterling — and vice versa. They are always willing to take down the offending item upon application from the local rights holder, but you have to maintain eternal vigilance. Obviously if Oxford University Press publishes a book in Britain and also offers it for sale in America, this is not a large problem. If however they sell US rights to another publisher, clearly seepage of the OUP UK edition into the US market is liable to concern the US publisher who has paid for the rights. Publishers persist in selling foreign rights, as who wouldn’t access any source of ready money, but the whole edifice is tottering. In the end, will we bite bullets and just agree that the original publisher is the world-wide publisher? This could be satisfactory in a world where ebook distribution was the only format available — but that world is not one in which we live now, or maybe ever will. As long as we sell 75% or more of our product in physical form the issue of who has the right to sell it here or there will persist. One might also visualize a world-wide print book distribution system, named something like, say, maybe Amazon, which could efficiently ship any book to any person anywhere. But just as we are not ready to yield the entire market for books to the digital realm, nor are we eager to rush toward a single bookstore serving the whole world.

A uniform world copyright law is probably what’s really needed. Don’t hold your breath though.


* Most publishers contract with the author to obtain the right to publish. Depending on author and agent the rights granted may be world rights or just the right to publish in USA say, or the British traditional market. The rights to sell a book (in English) into say Germany will be separate from the right to translate the book into German. The bigger the book the more detail there is likely to be about this sort of thing in the contract. Less sexy books will tend to go through on a boiler-plate contract. In other words there’s immense variation is what rights are transferred on books.

Selling of sub-rights is a ready source of income to publishers who hold them, and if a British publisher has world rights, selling (in return for a hefty lump sum up front) the US rights to another publisher may look more attractive than trying to publish the book in America yourself. The timing of the income will always be a factor: if you decide to do it yourself you have to wait till the book is written and published, rather than banking an advance next week.

The Times Literary Supplement has a little object lesson under discussion these days. Philip Larkin, The Secret Poems is a book containing 56 poems created from letters Larkin wrote between 1943 and 1985. The poems, basically prose texts broken into short lines, were excavated by Roger Rix. His book comes with CreateSpace listed as the source: so it’s probably self-published. As JC reports in his NB column on 5 January, having previously discussed the book in December, “Mr Rix writes that, ‘using only Larkin’s words placed in the sequence in which they occur’, he has ‘eliminated unwanted phrases while providing judicious line breaks’”. Nobody disputes that the results are pretty good: they read like real Larkin poems, which of course they really are. It’s the © notice that’s at issue.

Mr Rix has a letter in that same issue of the TLS, in which he reports on his permission, granted by an email from Faber & Faber: “We would be happy to grant permission for you to sell your book throughout the UK and Commonwealth in print formats for up to 250 copies. Please do take this email as confirming that permission is granted on these terms.” Not a legal document with anything approaching ideal clarity, but clear, despite that “would”, that permission has indeed been given to adapt Larkin’s correspondence in this way, and publish the results in an edition of 250 copies.

No harm of course in found poetry: lots of contemporary poets go in for it. I do rather part company with found poetry when it comes to picking out of an envelope random words cut from the newspaper, and laying them out as a poem. Surely you can find something more creative to do. But turning prose into poetry is clearly more acceptable. JC tells us that W. B. Yeats lineated some prose by Walter Pater and included the resulting poem, “Mona Lisa”, in his Oxford Book of Modern Verse 1892-1935. Edward Thomas, at the suggestion of Robert Frost allegedly derived poems from his own prose by lineating it. Hugh MacDiarmid was an inveterate quoter, and according to JC, silently copied a story by Glyn Jones to create “his” poem “Perfect”.

However, if there’s a collaborator, the question of who holds copyright in the resultant poems is not altogether straightforward. In February 2016 Patrician Press published a book, Robert Macfarlane’s Orphans by Martin Johnson, which turns Macfarlane’s often adventurous prose into poems. I’ve not seen the book, but the lack of kerfuffle suggests that the © notice credits Macfarlane, though it does sound as if Johnson does  a bit more editing than Rix, inserting, omitting, and changing words here and there. Mr Rix claims copyright himself even though the words of his text remain unaltered: intriguingly in the Amazon “Look Inside” feature, he is claiming it as copyright 1996 — typo or evidence of some earlier publication?

Mr Rix’s permission to publish is not in question The problem, maybe nothing more than a semantic one, is that that permission didn’t transfer copyright to Mr Rix. Henry Hardy, in a letter to the TLS, writes “Faber correctly wrote that they were willing to ‘grant permission’, but Rix misreports that ‘copyright had been granted’. It hadn’t. Copyright is a property right that is not transferred when permission to publish is given.” Dr Hardy’s suggested copyright notice would be “Text © The Estate of Philip Larkin [with some dates]. Textual arrangement and editorial matter © Roger Rix 2016.” This would seem a much closer representation of the ideal; but when all’s said and done has any real harm occurred? Nobody thinks Larkin didn’t write this stuff. Mr Rix says he sent a copy of the book to the Estate, and no objections have been raised. If the Estate were to wish to include these found poems in a future Complete Works, presumably there’d be no difficulty. The facts are the facts; copyright is copyright; a faulty copyright notice is just a faulty copyright notice, and doesn’t affect the legal situation.

A little sidelight demonstrates the decay of international rights grants and the territories they seek to define now that we can order books online. Despite permission having been given for UK and Commonwealth, Amazon US offers to sell me the book — for an off-putting $45.87, it’s true. It’s available at Amazon UK for £4.60, but doubtless they’d be aware that my computer is located in USA, and they’d refuse to ship the book to me. There appears to be no indication of any market restriction in the book.

Botnik Studios has a Harry Potter story generated by a computer informed by AI (Artificial Intelligence). The Digital Reader brings the link. He points out that there was an earlier AI-generated Potter fan-pic, so if you get through the Botnik 4-pager and still want more, you’ll know where to go. The Guardian also has a story about it. They say it’s “gloriously bonkers” — for me maybe just bonkers would do. For the addicted, The Guardian points us to yet another attempt, this one from Wired. Of course we are aware that lots of newspaper and magazine items are already being generated by computers. Writers of the world unite.

Here’s a more dyspeptic take on Botnik’s system from Quartzy. They display a few results of their playing around with Botnik’s predictive keyboard. This may not yet be forcing itself on the attentions of the Nobel Prize committee, but we are all attuned to the truism that computer systems improve at dizzying speed, so keep a look out. When we’ve gotten rid of book printers, bookstores, and publishing companies, we’ll be poised to get rid of authors too. And of course we’ve already developed machine readers to a level where we can confidently look forward to a time when one set of computers will read the literary output of another bunch of computers, thus freeing us long-suffering humans from the burden of actually doing all this unproductive reading and writing ourselves.

So who wrote this stuff? We’ve already had an AE, so what about the author called AI? The question of who might own the copyright in a work created by AI* is examined here at The 1709 Blog. Naturally the situation is complicated by different laws around the world, but the author concludes that “a broader reading of legislative texts – including at the international, regional and national levels – suggests that the notion of authorship for the sake of copyright protection is generally reserved to human beings.” I think we can pretty much assume that legislation is going to visit this topic: tech companies are going to want to reap all and any benefits they can from their software exploits.


* I recently responded to a survey from a grad student at (I think Loughborough University) investigating people’s attitudes to the authorship of a piece of AI-generated copy. Although she asked for other participants I’m sorry to say I cannot find any trace of my interaction and thus encourage you to participate.

An author recently asked “There’s no copyright in covers, is there? So I can just photograph one and use it as a slide in my forthcoming lecture?” Well, you probably could use a cover as a slide in a lecture, but that’s not because it doesn’t enjoy copyright protection. Depending on the lecture it might be regarded as fair use, though if it was a talk to a Wall Street firm for which you were receiving thousands of dollars, this might become less clearcut. The lecture in this instance was fairly formal, and I suggested that the author just hold up a copy of the book to make his point and thus avoid the potential “crime” of photographing it and “publishing” that photo. Reproducing a cover in a book or magazine would unambiguously require permission. Consider the fact that many book jackets come with their own © notice — e.g. all Library of America volumes.

 I suppose there might be a fair use defense for my use of this cover picture, but it might be a bit tortuous. The real reason* NOLO is (I hope) not going to come after me is not because I’m not making free use of a copyright object, but because publishers generally find reproduction of their book covers to be a good thing, bringing their publication to the attention of hordes of new potential purchasers.

There are actually two or three layers of copyright protecting this cover: the design is copyright, the photo is copyright, and the form of words used on the cover is copyright (but not the title and subtitle). All three aspects may vest with the one “owner”, the publisher. If the designer did the job as a work made for hire (which they would if it was part of their job, or if their freelance agreement specified this) then the contractor would own the copyright. The same might be true of the photo: and as the same image has been being used on successive editions of this book, this may well be the case. The cover copy would almost certainly be written in-house, and thus be work made for hire.

If NOLO wants to shout “Noli me tangere” at me, I’ll take the picture down.


* Apart of course from the harsh fact that they are unlikely ever to become aware of it!

EdSurge brings the happy news of an initiative to save from obscurity all those orphan books which now live in limbo because nobody can trace whomever it is who holds copyright. It costs money to bring a book back into print, or into a digital existence, and cautious publishers avoid the outlay unless they can identify a copyright holder and get their permission. This has led to thousands of books ending up trapped between unambiguous public domain status and the possible limits of copyright (70 years after the death of the author — but who knows when, or if, authors have died if you cannot identify or find them?)

Apparently the solution has been staring us in the face all along. One of the provisions of our current U.S. copyright law would allegedly allow nonprofit educational institutions like libraries and archives “to reproduce, distribute, display and publicly perform a work if it meets the criteria of: a published work in the last twenty years of copyright, and after conducting a reasonable investigation, no commercial exploitation or copy at a reasonable price could be found.” I wonder if, in this context, a university press could be regarded as a nonprofit educational institution. Probably not: Section 17 US. Code §108 (h) seems to insist that the institution perform as a library or archive.

Here’s an account from The Internet Archive blog (link via The Passive Voice). Their collection of 61 already digitized orphans, the beginnings of The Sonny Bono Memorial Collection, perhaps indicates why no commercial publisher can afford to finance this sort of thing. Keep checking though and gems may yet be found.

Protecting books for whatever period Disney may want to have as protection for Mickey Mouse remains crazy. I’ve advocated splitting copyright into three different versions. We need to stop the very large commercial cart pulling the creative horse.


Techdirt (via a Digital Reader link) brings us the astounding news that the story of the monkey who took his own picture just won’t go away. The photographer is now saying he’s going to sue Wikipedia for treating the monkey’s picture as if it were in the public domain. The photo appears on their entry as public domain.

Common sense — which I guess we have to accept has minimal relevance when it comes to the law — would surely demand that, if the monkey’s not allowed to own copyright in a picture which he took, neither should the owner of the camera be allowed to do so just because he paid over the cash to buy the camera. I wonder if the law courts have ruled on the copyright position of a photo made by a robber on a camera he’s stolen. Would they maintain that copyright should vest in the camera’s owner, who may not even have been in the same country when the photo was taken. I dare say that the photo should not be allowed to become the property of the thief, but the camera’s owner shouldn’t own copyright in something he or she had nothing to do with creating. If Hemingway “borrowed” my typewriter and wrote For Whom the Bell Tolls on it, should I imagine that I should be receiving royalties on the book? What if it had been an anachronistic laptop computer? Is there a risk of Microsoft’s claiming copyright in your work because you used Word to create it? No, no, and no, I trust.

Here comes word, via The Digital Reader, that the graffiti on a building in New York City have been protected from the building owner’s desire to paint over them. Ownership of the medium is being held to be less significant than the rights of the creator of the art. Ownership of the camera is less significant than the rights of the photographer, and as Naruto, a Celebes crested macaque, is the photographer the picture is not eligible for copyright protection and has to be in the public domain. Nobody’s suggesting a monkey did the NYC graffiti but even if Naruto had done them they still wouldn’t be copyrightable, though the City might nevertheless protect them through the sort of moral rights asserted in this case, or even the Visual Artists Rights Act. (One assumes however, that animals are no more able to claim protection under VARA than under Copyright.)

LATER  — 24 April 2018: CNN brings the news that Naruto has lost in court. He doesn’t own the copyright in the pictures he “took”.

In  a post in The Scholarly Kitchen Elizabeth Gadd points out the conflict inherent at the junction of the culture of scholarship and the culture of copyright.

Scholarly culture is primarily interested in the widest possible distribution of one’s work among those people who matter — your students, your colleagues, who can learn from and be impressed by your output, and more importantly the subset of that group which makes hiring and tenure decisions. Copyright culture, as we know, is interested in making money off research papers — and, I should emphasize, this is NOT a bad thing.

If publishers are unable to cover their costs in making available scholarly articles, they’ll go out of business. If they are unable to cover their costs and make a bit of profit, they will find better ways to use their money. Idealistic academics may act all shocked at the mechanics of sausage-making while still chowing blithely down on their bangers and mash, but the realities are the realities. We have the apparently paradoxical situation that publishers, having recently won against Sci-Hub, are suing ResearchGate, a German site, funded by some very respectable backers, which carries open access versions of copyright articles, while according to Scholarly Communications @ Duke the papers are mostly being uploaded by their authors. Nobody would imagine that academics as a group are dedicated to massive fraud or organized theft. No doubt a vast majority of these authors are not uploading their papers for malicious reasons; they just want their fellow researchers to be able to see their results. And of course in order for science, or any academic subject, to advance, the results of other researchers do have to be understood so that shoulders may be stood upon. Until we had the internet there was no problem with the system for making these results available. Of course you could (and did) make the odd xerox copy and give it to a friend, but when the only access to world-wide publication was via the printing press, access to which for economic reasons, was through a publishing house, you did what everyone else was doing. But now we all live in a world where just opening up Google and searching for information makes any information not immediately available seem like information which doesn’t really exist. Honest men (and women) can disagree about the problem: but my impression is that we haven’t even got to the point of defining what the problem actually is, much less getting down to the debate on how to reconcile the two (reasonable) interests.

Does the problem of the cognitive dissonance brought about by the conflict between scholarly and copyright culture have to be resolved by cutting out the publishers? That would make for a simple solution, but ignores the role of a publisher in editing, validating, financing, and marketing their publications. Maybe, just as open access journals can be published successfully with the system grants covering the costs of publication (i.e. with publication costs being rolled into the grants that fund the research in the first place), so might some system of payment be worked out for these websites. The basic problem is that non-open access articles are being treated by their authors as if they were open access. If you sign a contract assigning copyright or publication rights, then you really aren’t free to do what you want with your work however strongly you believe that you should be. It does appear in the short term as if sites like ResearchGate should be made to devise some methodology for assuring that material uploaded to their site is not committed to some other “publisher”. It sounds a bit like current discussions about political advertising on Facebook, Google and Twitter. Web “publishers” look like they are going to have to come down to earth a bit and behave a bit more like real publishers.