Archives for category: Copyright

The Passive Voice is written by a lawyer, so advice about contracts is right in his wheelhouse. Here’s Part 1 of “The Nine Worst Features in Your Publishing Contract”, dealing with the life of the contract, and Part 2 about sales performance standards. There may be future installments — he says his revisit will focus on the most toxic contract provisions, and here he’s dealt with but two.

Do bear in mind that if you care — if you are seriously thinking about making money off your writing — you have to have a lawyer look at your contract before you sign it. But of course bear in mind that lawyers exist to find things wrong in such situations, and you may get into a bit of a tangle which might result in trivial benefit to you, but lots of bad feelings on the other side of the table.

For myself, I wouldn’t be too concerned about lots of the legal things The Passive Voice routinely worries about, but then I’m not someone whose job description would ever be author. (And in my experience the publisher was fundamentally “on the author’s side”.) The contract lasts for the life of the copyright (which as we know is a long time)? So what? If the book’s not selling the copyright is virtually valueless anyway, and almost any publisher will be happy to revert the rights to you. You just need to ask. In my own case I didn’t even have to ask — they as good as said here it is, take it, we don’t need it anymore. (Nor of course did I.) Still, if you are writing a Hunt for Red October, and want to make bigger and bigger bucks off the movie franchise and novel sequels, then caution about being legally assured of being able to get your rights back might be a good idea. If your book is likely to be worth next to nothing in say ten years, then nobody loses anything by such a clause. If on the other hand if the book is still worth lots of money in ten years, the main loser, if no such clause exists, is likely to be you. A book like Hunt for Red October was no doubt worth a good deal more ten years after first publication than it was back in the early days. If your work might follow such a trajectory — caveat scriptor.

The Passive Voice‘s advice that you insist on a clause stating an end date for the contract might well be worth following. Many contracts do have a reversion clause specifying that once the book goes “out of print”, rights can revert to the author.  But now that we have invented POD, a publisher can keep a book “in print” for ever. This is great for many academic books — demand was small anyway and now it can keep on being filled even though there are no books sitting in the warehouse. But the further we get from the academic monograph, the more thought the author might need to give to this situation.

Kristine Kathryn Rusch tells a cautionary tale of family greed and contractual casualness, all resulting from a novel that almost never saw the light of day. This she labels Part 1 — it’s Part 1 of a 3-part examination of licensing books for television or film. Because, novelist that she is, Ms Rusch adds some suspense by disguising the identity of the book she’s discussing until later in her piece, I will allow you the same discovery process by delaying my response for a few minutes. So don’t read my next paragraph yet: click on the link to her Part I above, and return after reading it. And don’t click on the internal links in her story — that’ll risk giving the game away prematurely.

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Ms Rusch scolds us: “I know that Clancy’s New York publishers made a boatload more money than Clancy ever did. That’s due to traditional publishing contracts. The traditional publisher makes 80-90% on the book; the writer makes 10-20%. The movie studios made a boatload more than the publishers did. And other studios are poised to make even more money.” No doubt Ms Rusch’s assertion about maritime cargo is absolutely true, movie-makers’ boatloads are bigger than publishers’ boatloads which are bigger than authors’ boatloads.* But what it ignores in its best case analysis, is that Putnam’s larger percentage carries all the costs and all the risk of the book’s publishing, while the author’s percentage is guaranteed (if the book sells). Same goes for the movie makers too. Furthermore Putnam publishes more than one book, and they will have lost “boatloads more money” on a bunch of projects we never hear about. If they didn’t make out on one or two books, they’d go out of business.

Now I’m not crying out for sympathy for publishers who make bad bets, but I do think that the implication that this breakdown is somehow “wrong” is the problem with this sort of writing. I’m not sure where Ms Rusch is getting her information about publishing finances, beyond the jejune assumption that all the revenues apart from royalty represent income. The assertion that the traditional publisher makes 80-90% on their books is impossible to bring into alignment with any kind of reality. For starters the publisher gives the bookseller something around 50%, and has to pay something to get the book printed. You might as well complain that the printer only makes 5% while the publisher makes 95%. Once the book has become a bestseller the origination costs become pretty irrelevant having been amortized by the previous sales, and the publisher starts to make money. That’s the conventional reward for risk-taking. And of course when the publisher starts making money so too does the author.

Ms Rusch refers to Tom Clancy as a “Big Name author” in her Part 2, but of course he was a little name, even a no name author, at the time he signed that contract with Naval Institute Press. He may have had a bit of a Name in the insurance sales world, but an unknown author is, surprise, surprise, and unknown author. (By the way, Naval Institute Press doesn’t/didn’t habitually send copies of their books to the White House. Blind luck caused that copy to be sent along and then picked up by the president. If only publishers knew how to make blind luck work for them on a regular basis!)

It took the Naval Institute Press quite a few years to get over the effects of this utterly exceptional success. The book had actually already sold about 20,000 copies (a huge number for a university-press-type publisher) before Reagan implied that he was actually reading a book by picking it up and waving it at reporters as he left the White House for a vacation. This presidential endorsement caused sales to take off. Huge sums of money flowed in to a publishing organization unaccustomed to such a phenomenon. The temptation for managers to think that such success actually has something do with their actions, and the feeling that greater participation in the financial rewards might be nice, are almost impossible to resist. I’ve pointed out before that publishers should deal with printers of like size — so too should they deal with books of like size: a smaller publisher needs non-bestsellers. The trouble here was that though they started off with a like-sized author, the book exploded into a wild success; a success of the sort that even a medium-sized trade house might have struggled to control.

Of course authors really should read, study and think about their contracts before signing them, but if you don’t care too much about money, flying blind may not be very problematic, particularly if, like most books, your’s doesn’t make much impact. The problem here is that someone who didn’t care about money at the outset quickly turned into someone who did care quite a lot, and the head of a family who also cared a lot once they became used to the gravy-train that the book and its sequels turned into. Now everyone is suing everyone else. The way everyone wants to be the only one to enjoy all of it has resulted in the Bleak-House-like consequence that nobody’s able to enjoy any of the money.

Moral: I guess — however hard it may be on your innate modesty, you, author, should always review the contract you sign with your publisher working on the assumption that the book will turn into the wildest of wild successes. The hard part may be avoiding internalizing that assumption, and thus courting devastation when the dumb-born book doesn’t make any bestseller lists.

Not that it has much to do with this cautionary tale, but for the sake of completeness, here’s a link to Ms Rusch’s Part 3. This represents an interesting discussion of the pitfalls of writing the screenplay adaptation for your own (or perhaps any) book. I suppose it’s possible that she’ll eventually do another Part or two, but for those you’re on your own!

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*Movie makers’ accounting departments are, unsurprisingly, larger than publishers’ and are more skilled at being able to account for all their projects as making a loss. Thus the last money the publisher (and therefore the author) is likely to receive from the studio is the advance they get up front. A clause claiming you’ll get more when the film starts making profits refers to a moment which such accountants are expert at postponing indefinitely.

Publishers Weekly has an article about how copyright’s the only thing authors have. As Lincoln Michel says “Being a novelist or poet is not like being a baker, dentist, lawyer, or any job that pays wages for services rendered. We give up wages and security in order to get copyright: the right to control the art we create and—if we are very lucky—parlay that intellectual property into some (typically modest amount of) money.”

Mr Michel is spot on when he describes copyright as “the right to control the art we create”. The copyright law has nothing to say about financial rewards or money. True, the rights it grants could be traded for money, but copyright is merely a bundle of rights, not any guarantee of remuneration. A bit of cart before horse going on in the sentence quoted I think: surely writers don’t decide to give up wages in order to write: I think they decide to write and as a result give up wages. The right to make any money going comes along with the copyright protection almost automatically available by law.

Our view of copyright has spread so far that the concept risks becoming less and less meaningful. I have suggested that we need to reform our copyright laws (worldwide) by splitting it into three different “rights”. I might even be persuaded to go further and split my right 2 (basically books) into 2a and 2b, trade and non-trade books. The original intention of copyright was to promote research and learning. The title of the first copyright law, the Statute of Anne of 1710 is “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned”. Now of course our intentions are allowed to change, but on a strict historical view one might regard The Uptake and Storage of Noradrenaline as a suitable object of copyright protection, while the production of yet another adventure novel might be regarded as doing little to advance learning. The biological sciences researcher, if encouraged to keep going by receiving a bit of a financial and reputational return from their work, will be able to bring us further insights into the hormonal workings of our bodies, while an additional Jason Bourne novel cannot do much more than while away a few hours — which the educational purist might want to see more productively employed anyway.

Now I don’t really think we should call for a different sort of copyright protection for trade books as against non-trade, but I do think that Robert Ludlum, say, to defend his property rights in his novels, doesn’t really need copyright protection in quite the same way as our academic author does. He doesn’t need too much encouragement, other than the royalty revenue, to be coaxed into writing again. A successful author will want to control quotation from their work in order to maximize income: an academic writer needs protection because their reputation rides on the way their work is used. Where books can earn large sums of money, when we talk about copyright protection we are essentially talking about a right to allow the author to enjoy even more income. There’s nothing wrong with writers getting large incomes of course, but they do have access thereby to remedies other than a law designed to “encourage science and learning”. Notable among such powers is an ability to sue for property theft — an expense which few scientists can afford.

For the academic, almost certainly more important that the income potential, is the right copyright brings to control the use of the work: the distribution, extracting, copying and referencing of the work. If you want to advance in your career you can’t allow a competing colleague to claim origination of work you have created. You don’t want others to incorporate paragraphs you wrote into their writing and it pass off as their own. Such considerations may loom larger than the few dollars you’ll make in royalties — in fact lots of academic works are published without royalty, all parties recognizing that it’s perhaps better to moderate the retail price a little that to insist on the author’s portion. In addition many an academic author assigns copyright to their publisher, recognizing that the publisher will have the resources and staff to do a better policing job. It is a bit of a paradox that the more “serious” your writing the less likelihood there is that you’ll be making much money. The rewards for such effort are in another dimension. Immortality trumping income.

Plagiarism Today has a story about the birth and rapid death of the site Recipeasly.

The aim of Recipeasly was to strip recipes of all the verbiage which surrounds them and provide just the ingredients and the steps involved in making the dish. Sounds fine, doesn’t it? But it turns out that the verbiage is the very thing which enables a recipe to be copyrighted. “As per the U.S. Copyright Office Circular 33, ‘A recipe is a statement of the ingredients and procedure required for making a dish of food. A mere listing of ingredients or contents, or a simple set of directions, is uncopyrightable.’” So the thing that makes your recipe for spaghetti and potatoes copyrightable is that bit where you tell us how your dear old granny told it to you on her deathbed, or where you describe how your sauté pan has a dent in it because you had to use it to fend off a masked garlic thief.

So while Recipeasly was not infringing copyright, it was pissing off the cooking community, and as that was a big part of the audience they were seeking to appeal to, and the source of all their material, they soon had to cease and desist.

It may be that this is a bit more of a problem with online recipes than with cookbooks. Cookbooks are a prime exhibit in the believe-it-or-not-show of how it is that publishers are able to conjure freely available stuff into significant revenue streams. The first page of Amazon’s 41 pages of search results for George Eliot’s Middlemarch shows us 17 different editions with prices ranging from $5.99 to $54.72. This is despite the well-known fact that the book is available free of charge at, for instance, Project Gutenberg — Amazon even shows you a couple of Kindle editions at $0.00. People will pay for stuff they could get for free for a variety of reasons, and with cookbooks, the look of the object, as well as its handiness as a gift, make the actual content almost of secondary importance. This means that a lack copyright protection may not be the make-or-break problem literalists assume it to be.

Once again we’ve gotten a New Year’s gift of a bunch of copyright works entering the public domain. TeleRead has a piece telling of some new domain arrivals.

On NPR’s Morning Edition there was a story today of Michael Farris Smith who in 2015 had written a novel, Nick, about the life of Nick Calloway. Calloway is the fairly shadowy narrator of The Great Gatsby. At that time Mr Smith was told by his publisher that they couldn’t publish the book until 2021 because The Great Gatsby was still in copyright.

Obviously Nick’s life cannot have featured in Fitzgerald’s novel. Presumably he meets and interacts with Jay Gatsby in Mr Smith’s book, but we know that there is in theory no copyright in characters. Cynics might think that maybe the publisher was just taking the easy way out without having to tell the author that his novel was no good! But this theory is belied by the fact that Little, Brown have announced Nick for publication on this very day.Maybe their hesitation was a preemptive legal funk: we know that whatever we believe about the copyright law, suits are brought to keep in line authors and publishers with the temerity to write about the further adventures of character A, B, or C. See for instance Holmes run, and Derivative works. These sorts of books are of course closely related to fan-fiction, which enjoys a vigorous online life.

What should we think about the term of copyright? I suspect we can all agree that it’s too long. Just what the length of the term is varies in a pretty crazy way. Looking forward, 70 years after the death of author is the measure in the USA. The Sonny Bono Copyright Term Extension Act of 1998 put a delay onto public-domain-ification of many works, presumably in an attempt eventually to get terms established in the past under various differing rules into uniform step. Fitzgerald died in 1940, so 70 years later would have taken us to 2010; but at that time we were not putting works into the public domain. The Sonny Bono Act gave copyright works published with a copyright notice and with a copyright renewal, which had previously had a terms of 75 years since publication, another 20 more years, giving The Great Gatsby a total of 95 years copyright protection. (Gatsby was published in 1925; + 75 = 2000, = 20 = 2020.) Cornell has an exhaustive reference site for those who need to know.

Faced with the “problem” of expiring copyrights some publishers, Cambridge University Press springs to mind, have aimed to reestablish copyright by arranging for a scholarly revision of the text of classic works. Thus we published a new text of The Great Gatsby in 1991 (we redid D. H. Lawrence the decade before). The copyright notice reads

Copyright © 1991 by Eleanor Lanahan, Matthew J. Bruccoli and

Samuel J. Lanahan as Trustees under Agreement dated July 3, 1975

Created by Frances Scott Fitzgerald Smith.

Eleanor Lanahan is the daughter of Samuel J. Lanahan and Scottie, daughter of Scott and Zelda. Scottie, Frances Scott Fitzgerald, remarried Grove Smith. Make of this © notice what you will. Not sure what “Created by” refers to — is it “Agreement”? Presumably it’s not the text — which was edited by Professor Bruccoli, and do remember, actually written by F. Scott Fitzgerald. As responsibility ballast we also have Fredson Bowers as Textual Consultant. Now I’ve no intention of comparing the CUP text against the Scribner version line by line — there must presumably be some differences. One can of course reasonably wonder what the value of an edited “correct” text is in the face of a freely available one in the form the author allowed to be published during his lifetime. A copyright is only valuable in proportion to your willingness to mount lawsuits in order to protect it.

 

The CASE Act (Copyright Alternative in Small-Claims Enforcement Act) has been lurking around Congress for years. Publishing Perspectives reported on the bill’s passing the house last year. Since then it has been waiting for our do-nothing Senate leader Mitch McConnell to permit a vote on it. Publishers Weekly tells us that the CASE Act was slipped into the latest Coronavirus relief bill, now awaiting signature at the White House. Let’s hope McConnell doesn’t read PW — we can safely assume the president won’t.

No sooner had I written the previous paragraph than the president weighed in, characteristically chaotically, not at the eleventh hour, more like the 13th, demanding changes to the Coronavirus relief bill which McConnell isn’t inclined to provide. So I held off on writing any more until clarity emerged. After creating his little bit of turmoil the president has of course now signed the bill, and Copyright small-claims are finally on their way.

The CASE Act would establish a Copyright Claims Board within the Copyright Office. This Board would act as a mediator on smaller copyright claims replacing the need for a federal court for copyright infringement cases. This panel would be made up of three members of the Copyright Office and two copyright lawyers. For registered copyright works the maximum statutory damages would be $15,000 per work and $30,000 per claim. Copyright works which are not registered are eligible for half these amounts. The Board may also issue cease and desist notices.

The CASE Act includes a provision that would  make illegal streaming a felony. Last October Boing Boing warned us about the potential downside of the legislation. One can see how big money companies should be reined in. But I wonder whether there’ll be implications for little fish like me though. There does seem often to be a tendency for small fry to be caught in nets spread for the big guys who can escape by legal delaying tactics. What really constitutes illegal streaming? I’m inclined to wait with fingers crossed to see whether linking and copying is ultimately OK or not for a small blog.

 

Netflix has recently released a movie, Mank, about the writing of the film script for Citizen Kane. The question of whether Herman J. Mankiewicz did or did not single-handedly write the script for the movie may not be the most vital copyright debate of the 20th century. Actually, I don’t suppose copyright really came into it at all, as the script was no doubt a work made for hire, in which case © would remain with the entity paying the bills. Orson Welles received joint script-writing credit. Whether or not he actually wrote anything, this might not be utterly inappropriate as it seems to have been he who first got Mankiewicz working on the project. This might be seen as making Welles the © holder for such a work made for hire, especially if any money changed hands.

However, my main interest in the Netflix movie is its title. In Scotland “mank” is a verb meaning to lack, to be deficient, and is most frequently encountered in its adjectival form manky (some might write mankie; with these words which you only hear, never read, spelling is always a toss-up). My most frequent association for this word is in the phrase “manky socks”, a memory I frequently reach for in our wine-tasting group, now in covid-abeyance. Such a barnyard smell in a wine is not a bad thing — well, not a bad thing unless it is present in excess — which I guess is sort of true of barnyards and footwear too. Now “mank” must be one of those many Scots words which come down to us thanks to the Auld Alliance with France. Mank means more of less exactly what manquer means in French. This does raise the question though as to whether my usage in the hosiery line is not a bit inaccurate. My manky socks might well have a few holes in them, but the primary quality in my usage would be the olfactory. In my defense I have to note that one secondary definition of “mank” is to spoil.

As I didn’t watch the movie I can’t really assert whether Mank is or is not manky in any way.

I’ve often wondered whether my reuse of photos (and some text quotes) in this blog really represents copyright infringement. I suspect that it often does, but I salve my conscience by saying to myself that my reuse isn’t likely to affect the market for anyone else’s material, and that I’m not making any money from this anyway. (Any ads you may see when you visit this blog are placed by WordPress, the site host, not me.) If anyone were to object to my reuse of an item of theirs I would just have to take the image down and apologize, and hope that this would be enough. Not that this is really any adequate response — if the copyright owner can demonstrate damage, then I could be in trouble. Again I comfort myself with the thought that the exclusive audience for this blog really cannot be seen as causing much harm to the copyright owner. Also, if someone were to reuse some of my material I would not regard myself as being harmed. To some extent we regard stuff that has been publicly posted in blogs and on social media as being offered up for public use. Still, that’s not how the law looks at it. Just because I find it in a Google search where everybody can see it doesn’t mean it’s not copyrighted material. Maybe I could manage mount a fair use defense, on the basis of criticism and review, but I’d have to pay the lawyer, since matters of judgement like that are unfortunately matters of judgement, which tend to have to be sorted out by a judge.

Here, from copyright laws.com are 6 essential tips for legally using images. (Linked to via The Digital Reader.) Obviously if you are writing for publication you need to exercise caution. If I were to extract from this blog a collection of pieces for a non-free ebook on let’s say book binding, I’d either have to drop all the images I had reused in the blog, or obtain permission from the copyright owner — because, however over-optimistic it might seem, such a book would be designed to make money: and the originators of the images would deserve their share.

If the thought comes into your mind “Do I need to ask for permission to include this in my book?” then chances are you probably do. I don’t think it would enter anyone’s head that permission might be needed for “Whan that Aprill with his shoures soote”, whereas the thought might/should come up when writing “April is the cruelest month”. If these were the only Eliotian words you were using you’d probably get away with it, though the function of the words in your piece needs to be taken into consideration. If you are quoting just these five words in the context of a character of your’s complaining that they are just plain wrong since lilac clearly doesn’t flower till May that’d be a different story from your using it as say a chapter title.

The trouble with advice in this area is that there’s no hard and fast rule. It’d be nice if we could say “Quoting three lines of a poem is fair use: quoting four requires permission.” But we can’t. At a trivial level, three lines from “Paradise Lost” obviously represent a different portion of the total than three lines from “When I consider how my light is spent”. When in doubt: ask. Don’t however if the author in question is indeed John Milton.

A while back Jane Freedman provided a sample letter accompanied by a whole lot of practical guidance. You can’t do better than follow her advice.

I suspect (hope) that in time we will arrive at a position where linking to, quoting from, or duplicating a portion of an online source is regarded differently by the law than the same lifting from a book or other printed source. But at the moment the law doesn’t make any such convenient (for me) distinction between blogs and books. Fingers crossed.

See also Permissions for images.

Now that books, thanks to print-on-demand, can remain in print in perpetuity, the right of authors to be able to reclaim their copyright has become even more important. Technology has turned a grant of rights, seen originally as temporary, lasting only until demand was satisfied, into a signing away of rights potentially in perpetuity. Now that a publisher can keep a book available without there being any inventory in existence anywhere, there is no longer any reason to declare a book out of print.

The procedure for getting your copyright back which was introduced in the Copyright Act of 1976 allowed authors to claim back rights in a window from 35 to 40 years after publication or registration. The law required rigid adherence to a set of regulations, and the Copyright Office now proposes to relax things especially around timing and “harmless errors”. A discussion of the changes may be found at The Federal Register.

The Passive Voice, reporting on The Authors Guild’s involvement, has a sensible take on all this.

Be it noted that just because your grandmother’s book is now just available in a print-on-demand manner, there is not an automatic gain in your claiming back the rights. If annual demand has gone down to single figures, what advantage is there for you in claiming back rights? Do you want to become a publishing company on your own? The original publisher, the source for the book for 35 or more years will probably be able in any case to sell more copies than you can, and if the sale is in the single digits you’ll never get another publisher to want to take the book on. But if the book is selling in the hundreds each year, there might be some reason to go for it. Do bear in mind that as people have been used to getting the book from publisher A for so long, the chances are that publisher A will have an edge in the marketplace. But maybe you’ve proposed additions or revisions to the book and they’ve resisted — then another publisher might be a better bet. But be sure you get the new publisher to commit before you ditch the old one.

None of my ancestors was smart enough to create a character who became known to almost everyone in the (English-speaking) world, so maybe I’m not in a position to judge those thus favored. Nevertheless I find it hard to understand holders of ancient copyrights trying to suppress new fictions making use of a character their granddaddy invented. Surely the more stories, books, movies there are featuring Scarlett O’Hara, or James Bond, or Atticus Finch, or Sherlock Holmes, (or even Mickey Mouse dare I say) the better for the sales potential of “the real thing”. Yet with certain properties the impulse to reject any copyright request or to hunt down any parody or fan fic seems impossible to resist. Just stealing the damn thing and offering it for sale is one thing, but someone who has gone to the effort of writing a novel — or making a film —featuring a character we all know and love has surely made enough of a creative effort that they should be allowed to go ahead and make whatever sales they can. The publicity they stimulate will only help sales of your properties.

The Estate of Arthur Conan Doyle is suing Nancy Springer, Legendary Pictures, PCMA Productions, and Netflix over a Holmesian movie, Enola Holmes. The majority of the Sherlock Holmes stories are in the public domain but ten stories written from 1923 to 1927 remain protected by copyright. The claimants allege that words from those stores are used in the film. As The Independent puts it “the suit also claims that Enola Holmes incorporates the ‘human connection and empathy’ that were only displayed by the detective in the copyrighted books”. Give me a break: Sherlock Holmes didn’t display any human emotions prior to 1923, so if he gets upset, that obviously must be an infringement of copyright! All sounds like a bit of a Hail Mary.

Presumably the Estate has been content for Nancy Springer to have published six books already featuring Enola, Holmes’ niece. As Wikipedia tells us “This pastiche series borrows characters and settings from the established canon of Sherlock Holmes, but the Enola character is Springer’s creation and specific to this series. The first book, The Case of the Missing Marquess, and the fifth, The Case of the Cryptic Crinoline, were nominated for the Edgar Awards for Best Juvenile Mystery in 2007 and 2010, respectively.” I guess now that big bucks are possibly available with the making of a movie the Estate has decided it’s worth their while to act. Whatever the weakness of their case, maybe to Estate can be persuaded to go away with a little bit of a kickback from the movie’s producers.

LATER: The Verge reports on 20 December that the case has been settled out of court. This means we don’t know whether Holmes’ empathy can or cannot be copyright — the court case didn’t get that far.