Archives for category: Copyright

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.

I recently wrote about the daring decision of the Internet Archive to offer people free digital access to a lot of copyright books. They seemed to argue that desperate times require desperate measures: which may be fair enough, but doesn’t permit you to disregard the law of the land just because there’s a pandemic aloose in the land.

Now publishers have brought a lawsuit, seeing that pointing out the error of their ways wasn’t going to make the Internet Archive change their policy of giving away other people’s property (not just the publishers of course, but the authors whose work is being given away). Here’s the Publishers Weekly story, and a nice balanced analysis by Chris Meadows from TeleRead. Even the Passive Voice piece sees PG forced into an uncharacteristically non-anti-publisher stance.

And now it’s all over. Well, the immediate covid-lending of multiple copies is over. Brewster Kahle, head of the Internet Archive has said that they will continue lending scans of print library books on a one copy/one user model. Their theory justifying this is something called controlled digital lending. Under this untested legal theory theory, a library or a nonprofit, like the Internet Archive should be allowed to scan a printed copy of a book they have legally acquired, and then make that scan available to be borrowed in lieu of the print book, while, crucially, taking the corresponding print book out of circulation while the digital copy is on loan, or vice versa, so that at any time they are lending only the number of copies (in whatever format) that they have purchased. Unfortunately the law doesn’t see things like this: maybe the law is too analog fixated, but it is what it is. In an analog world the book is the physical book, not the content. There are specific rights transferred by different kinds of sale. It’s true that a library, having bought a paperback copy can legally send it out to a bindery and have it converted into a hardback. There’s even a word for it: prebinding. However, if you buy a print copy of each novel of Zadie Smith, you have not acquired the right to publish an omnibus edition of Smith’s novels, either in physical or digital form. Like all this digital enthusiasts, Mr Kahle may wish it were so, but it just ain’t.

I assume that the lawsuit will probably continue, providing a test of the theory of controlled digital lending. But the publishers may consider the game not worth the candle during this uncertain financial period.

The New York Times has a long and fascinating article in the Business Section of the issue of 24 May. (You may need a subscription to see this I fear.) The piece involves the saga of suit and counter-suit from a couple of authors active in the Omegaverse. The Omegaverse is a sort of fan fic phenomenon, involving folks writing and sharing futuristic wolf-themed erotica. Apparently 70,000 stories set in the Omegaverse have been published on the site Archive our own. One author, Ms Cain, took tropes from this “conversation” and wrote novels which tuned out to be wildly successful. These books were adapted from her earlier unpublished Batman fan fic erotica. She later discovered another author, Ms Ellis, who was writing novels using the same tropes, and also selling lots of books. Ms Cain issued “takedown” notices, as allowed under the Digital Millennium Copyright Act*, and sales of Ms Ellis’ books stopped. Ms Ellis is countersuing on the basis that Ms Cain owned no copyright in these group-sourced characters and situations, nor does it seem that the words of any of Ms Cain’s books were duplicated (which of course is the real basis of copyright — you can’t copyright a story line or a character). In a statement which doesn’t increase confidence in her, Ms Cain reports that she hasn’t actually checked to see if any words were actually duplicated as the experience of reading Ms Ellis’ books would have been too upsetting! “It was hard for me to read them side by side, honestly, because I felt very violated.”

It is interesting to note just how much money there is to be made writing this sort of stuff. Ms Cain is quoted as saying in a 2016 sci-fi/fantasy podcast “Dip your toes into the erotica pool. There’s nothing to do here but make money.” At a relatively early stage in her career, it seems, her publisher, Blushing Books, reported that the series had made $370,000. The amounts of money to be made have obviously turned Ms Cain from a fan into a tycoon, whose motivation has shifted from lust to lucre. Blushing Books has dropped out of the suit admitting that no plagiarism or copyright violation has taken place. The law is moving forward as the law does. The Times article concludes: “In the meantime, the Omegaverse continues to thrive. This year, more than 200 new books from the genre have been published on Amazon.

“The latest batch draws on virtually every genre and trope imaginable: paranormal shifter romances, paranormal Mpreg romances, [Mpreg refers to the ability of some males in the Omegaverse to give birth] reverse harem romances, sci-fi alien warrior romances. There are fantastical Alpha-Omega stories featuring witches, unicorns, dragons, vampires, wolf-shifters, bear-shifters, and wolf-shifters versus bear-shifters. There are comparatively pedestrian Omegaverse romances about celebrity chefs, dentists, frat boys, bakers, bodyguards and billionaires. In a teeming multiverse of stories, the tropes are still evolving, inexhaustible.” Quite amazing.

Implications for our copyright law abound, but it does seem to me the main issue behind all this is plagiarism rather than copyright infringement, with Ms Cain having no exclusive right to the themes collectively developed in the Omegaverse.

In the isn’t-life-crazy genre, here’s an article from Electric Literature about five other plagiarism and copyright infringement suits.

See also the related Cockygate case from a couple of years ago.

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* According to the Times, the US Copyright Office has recently issued a report detailing how the Digital Millennium Copyright Act has failed to keep pace with digital developments. From 1998 to 2010 Google apparently received less than 3 million takedown notices: in 2017 alone they got more than 880 million of them. Change will be coming.

On the face of it it might seem nonsensical that by posting a photo to Instagram you are giving up your copyright in the image — but as Judge Kimba Wood recently ruled, that is indeed the case. When you sign up for an account on Instagram you apparently agree to terms granting them “a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content”. Mashable just won the suit for copyright infringement brought against them by Stephanie Sinclair who turned down Mashable‘s $50 offer yet saw them use her photo of a Guatemalan mother and child anyway. The Hollywood Reporter carries the story. (Link via Technology • Innovation • Publishing.)

This, rather obviously, demonstrates the need to read the small type. Of course we all brush this off, and that may be OK for day-to-day life. After all why would you want to use Apple’s OS Catalina for anything other than the purposes they have designed it for? But if you refuse to read the full contract you agree to just don’t think you can then bring a law suit — or at least don’t waste your money doing so until you’ve taken the time to read carefully what you signed up to years ago.

This is another of the many cases which indicate the need to clarify our copyright laws. Copyright law as it stands is ruggedly analog: “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed”. The law urgently needs to start to take account of the digital world directly, not just by logical extension. The online world is quite obviously different from the world of print. Showing you my photograph of a family in Guatemala is quite clearly a different matter from my publishing it in a book or a magazine. If I show you a photograph I took, either as a hard copy or on my iPhone, you’d never imagine that you had any right to reproduce it. If I gave you a print? If you see it online does that amount to its being it published? What if I send a picture to you as an email attachment? Common sense may provide ready answers to these questions, but copyright law may not be the right mechanism for protecting all uses.

Let us bear in mind that the reason for having copyright protection in the first place is not to enrich content creators; it is “to promote the progress of useful arts and science” by encouraging authors to share their works without just giving them away. This seems to bear scant relation to a social media “publication” of you modeling your latest outfit.

The Passive Voice links to a post from the American Bar Association. The ABA’s full article presents a thorough history of U.S. copyright law.

At first copyright protection was provided by individual states, and Connecticut was the first to do this, in 1783. Our first national copyright law was passed by Congress in 1790, three years after the Constitution was signed. To get protection a work had to be registered with the clerk of the local district court, with whom a copy of the work had also to be deposited. In the first move toward centralization of the process in 1831 these district court clerks were required “at least once in every year, to transmit a certified list of all such records of copyright . . . and also all the several copies of books or other works deposited . . . to the Secretary of State, to be preserved in his office.”

It wasn’t till 1865 that the Library of Congress (founded in 1800) became the place where copies of books were required to be deposited to ensure copyright protection, and this flow of books to the Library was cemented by the Act of 1870. The work expanded so quickly that the Librarian of Congress was soon applying for help, and in 1897 the Copyright Office was established by Congress as a quasi-independent department of the LoC with the job of Register of Copyrights created to manage it. In 1996, Congress clarified that the Register has an equivalent position to that held by the head of the U.S. Patent and Trademark Office. The thrust towards independence of the Copyright Office continues, with the proposal to make the Register a presidential appointment, freeing the job from the requirement of channelling authority through the Librarian of Congress.

Clearly the scope of copyright has exploded in recent years with the development of the digital world and social media. What the copyright position might be with a picture placed on Instagram or Snapchat is very different from a reproduction in a book. I don’t have to lay claim to any crystal-ball skills when I say that copyright law is due for further change.