Archives for category: Copyright

It does come as a bit of a surprise to learn that a turkey wishbone turns out to be copyrightable.

Trademark and Copyright Law (via The Passive Voice) has the story of a lawsuit involving Sears and a potential supplier whose sample plastic wishbone, offered as part of his sales pitch, was sent by Sears to a Chinese manufacturer who ended up getting the order for a million give-away wishbones. Nobody can think Sears behavior in this matter was anything but despicable, but is copyright really the appropriate defense? Seems it was, as the plaintiff prevailed. “The Court acknowledged that objects found in nature are in the public domain and can not be copyrighted. However, the fact that an author bases a creative work on a naturally occurring object does not preclude a finding of originality where there is evidence that the author added some creative contribution.”

What would have been the legal situation had Sears sent to Hong Kong not Mr Ahroni’s plastic prototype but an actual turkey wishbone? Probably they’d have ended up about $1.7 million better off.

We all know hip-hop artists do it, and many musicians seem to regard it as a kind of tribute to find a snatch of their own song repurposed in a new track. Remix in the music business started out meaning simply reformatting. I dare say there’s a developing theology of remix, also referred to as sampling, as to how much is OK and how much is too much. I think we’d all agree that my rendition of Yesterday, substituting “Wednesday” for all the “yesterdays” in the Beatles song should not be accorded copyright protection as a new work, but just where the line should be drawn is clearly up for debate.

Same no doubt in other arts. Remix may be a way to describe this black & white version of Graeme Williams’ color photo, but does the alteration make it a new work? Certainly any publisher seeking to reproduce a color photo in black and white only, would not think that because of that change permission didn’t need to be sought. The greying out of part of the picture might be said to put us into a grey area. To me it seems that the alteration is not enough to constitute a new work: the second picture can’t be anything more than a derivative work for which permission from the original copyright owner is required. But of course that’s in the end why we have law courts. Insult was added to injury when Mr Williams noticed that the black & white photograph was being offered for sale by Hank Willis Thomas at $36,000, 25 times what he’s ever gotten for a print.

Details of the two versions from Petapixel.

You can see the whole story (and the complete images) at Petapixel. Link via The Passive Voice. The Guardian also covered the alleged plagiarism.

The Guardian has a little controversy going on as a result of George Monbiot’s piece, Science publishing is a rip-off which amounts to a claim that knowledge really does want to be, and furthermore should be, free. Guardians of balanced debate, the newspaper has published a follow-up consisting of reactions to Mr Monbiot’s article. In the original piece the author touchingly tells us of the expense involved in his researching cancer treatments after his recent diagnosis: but is it not the case that what Sci-Hub saved him from was nothing more than the bus fare and hassle of going to a decent library with subscriptions to all the journals Sci-Hub has ripped off, and reading the papers in question there?

I’ve gone on about the open access issue before, and think that the question doesn’t have a single clear-cut answer. Like any simple formulation of a complicated idea, “information wants to be free” appears to say more than it really can. Too much depends on who’s asking the question, in what context, and what specific meaning is attached to individual words.

It’s undeniable that there’s a logic to the argument that since we all paid for this piece of research through government funding of research and/or universities, we ought to be allowed access to the results without further payment. Leaving aside the issue of private funding of research, the problem comes with the mode of that access. Most academics are modest enough to understand that their writing is at best serviceable for internal discussion, and at worst, incomprehensible to the general public. This isn’t usually a problem, as the traditional journals to which academics submit their papers will all have editors and copyeditors who will, in theory at the very least, whip incomprehensible prose into as elegant a shape as possible. Worried about factual errors? Fear not, peer reviewing will take care of such problems: unknown colleagues will quietly read, check, and approve your work. Which is all very good, and valuable. And costly. Someone has to do this sort of work, and someone usually likes to be paid.

The Economist, reporting on developments in Europe, jumps into this discussion with a piece called The S-Plan diet. Plan S is an agreement among eleven European countries requiring scientists who benefit from national funding to publish only in freely available open-access sites by 2020. This would prevent papers appearing in about 85% of current journals, including the most prestigious. It now looks like the European Union is racing down the legislative track of freedom for info. Now, we can all be relied on the deprecate the hefty prices put on journals by the likes of Elsevier, everyone’s favorite bête noir in this world, but that doesn’t do much good. We can all (I think) recognize that there are costs involved, we just don’t agree on how much of a margin over and above those costs, whatever they may be, the publisher should be allowed. We just believe that the profits are too damn high. The world of open access has tended to take care of these costs by publication fees charged to the authors when they submit the paper. The European legislation seeks to cap these fees, but nobody really knows how much of a fee is too much, and how low fees could go before publishers give up. Naturally, of course, many open-access sites have figured out that there are rich pickings to be made in charging publication fees as high as the traffic will bear, which is often a surprisingly large amount with academics doomed to publish or perish.

For a simple direct assault on the fat-cat publisher, see Aaron Swartz making his case at Academic publishing scandal.

We can all heave a sigh of relief: we are free once again to use the word “cocky” in our book titles. Fallena Hopkins has apparently agreed to cancel her trademarking of the word. The decision is announced by The Cocky Collective as shown. See Inqusitr.

Until Ms Hopkins speaks though, a little breath-holding may still be in order.

See What a cock up for an account of the original trouble.

Let us hope this is the last we have to hear about this silliness — and I mean at both ends. Who’d want to use the word cocky in a book title, and who’d want to gain exclusive access to such a thing? Still, a victory for free speech is always nice.

Uncopyrightable are names, titles, slogans, and short phrases. Same with ideas. (Trademarks and patents may work for some of these.) Also uncopyrightable is something someone else wrote — unless they have explicitly made over ownership of the rights to you.

The fact that the word “uncopyrightable” is one of the two longest words in English which don’t repeat any letters is one of the side benefits of this video from Oxford Dictionaries blog about the longest one-syllable words in English.

If you don’t see a video here, click on the title of this post in order to view it in your browser.

British copyright law enjoins publishers to deposit one copy of every book they publish to six libraries: The British Library (formerly the British Museum), The National Libraries of Scotland and of Wales, and the University Libraries of Oxford, Cambridge, and Trinity College, Dublin. This obligation in one form or another dates back to the 17th century.

U.S. publishers only have to bother about the Library of Congress, though they need to send two copies if they register copyright. (Even if it’s not registered a book is still copyrighted. It’s just a bit harder to act against infringements if not the book isn’t registered, so most publishers do register their copyrights. This prosaic process is often left for someone’s spare time and has been known in some houses to fall a year or more behind schedule. The U.S. Copyright Office has a useful list of frequently asked questions.)

According to Wikipedia, Poland requires the deposit of 19 copies, so English-language authors and publishers shouldn’t feel too aggrieved.

See also Copyright registration.

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.