Archives for category: Copyright

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.)

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.

MIT has put together a writing bot which is churning out horror stories. BookRiot brought the news. Future Tense at Slate has an account. Shelley, as they have named the machine, after Mary Shelley, can be visited at this link. Shelley will generate stories in collaboration with readers, via its Twitter account. The stories can be read online, or on your Twitter feed if you prefer. Here’s an image of the beginning of one of the stories.

In a world where robots are already writing quite a lot of pieces in newspapers, I wonder what happens to copyright in such things. The case of Shelley is even more complex, being a collaboration partially written by a non-human. See Copyright for robots.





A lawsuit against LeVar Burton has been settled. Vulture (via Book Riot) tells us he can now say “but you don’t have to take my word for it” whenever he wants to. The catch is that this phrase is apparently a catchphrase of Reading Rainbow, a TV show for which he was a long-time presenter. WNED in Buffalo got upset when Mr Burton used the phrase in his podcast LeVar Burton Reads, and sued for theft and extortion on account of his repeated use of a catchphrase which he’d been using on-air for over 20 years on their program but didn’t technically own. Can one be said to own a group of words? Sounds ludicrous in principle but of course if the phrase is trademarked that can indeed be the case. I assume that this case stopped because the phrase isn’t actually protected — nevertheless I have cautiously tagged it ™ in my title!

So look out: watch what you are saying. Who knows whether you are uttering protected phrases or not? It always seems way off from the true purpose of copyright when people try to restrict the use of what look like perfectly uncontroversial phrases. A bit like patenting a gene. Intellectual property is a slippery concept and we’d probably all benefit from it’s being binned. Now, I could try to register “intellectual property” as a trademark, but it would only be protected if I relentlessly sued anyone who used the words whenever they used them. That seems like a poor (and expensive) way to try erasing the words from the popular memory. If a trademark is constantly abused with impunity it effectively ceases to be a trademark. But you don’t have to take my word for it — you can look it up.

I find intellectual property a rather offensive term. Maybe because it always sounds a tiny bit boastful, but perhaps also because I’d prefer not to have to think of Mickey Mouse and Donald Duck as intellectuals! Of course under copyright, the IP law we principally deal with, it’s not the ideas that are protected, just the tangible expression of the ideas, the form of words in which they are expressed. Apparently I’m not alone in this unease about the term: the Wikipedia article outlines the arguments. Intellectual property is protected by three main legal maneuvers — copyright, patents and trademarks, though there are other less obvious methods including trade secrets law, industrial design rights, and trade dress.

The Scholarly Kitchen brings us a thoughtful review by Karin Wulf of Siva Vaidhyanathan’s Intellectual Property: A Very Short Introduction. VSIs live in bookshops in their own spinners, replenished on an ongoing basis. However the spinner in the New York store where I eventually got hold of the book a couple of weeks ago doesn’t seem to be being replenished by anyone. I went into one branch or other of Book Culture’s three outlets over a period of four months or so, only to be told thrice that the book was out of stock at the publisher. (Maybe they just said “out of stock”, and cynic that I am, I assumed this meant a screw up at the publisher. I knew that the books in this series are printed in England, so delays might be possible.) On my fourth visit the indiscrete assistant told me they’d actually never received their first order into the store, and that if I wanted to order it I could have it in a day or two as the books had been lying in their warehouse since March. I did, and 24 hours later, there it was. And Book Culture is one of New York’s more successful book chains! Of course this isn’t an expensive book, but what bookstore can afford to ignore a well-reviewed $11.95 book, one that is getting customer enquiries, and especially one where the spinner merchandising format is intended to make customers pick up more than the single volume they’d come looking for?

Oxford University Press’s Very Short Introductions is a successful series of brief authoritative introductions to a wide variety of (serious) topics. The VSI site suggests there are 533 of them, while the OUP site listed in the book yields  a count of 577. The book itself claims 508. Either way it’s a lot, and the number is growing rapidly. The series is clearly modeled on the Que sais-je series published by les presses universitaires de France. To me, it’s an obvious idea for a university press with good trade distribution. I floated the idea of just such a Que sais-je knockoff series when I was a junior editor in Cambridge 45 or so years ago — I clearly didn’t pursue it with sufficient energy! More fool me.

Professor Vaidhyanathan emphasizes that it was the development of search engines and the internet which turned the rather quiet world of intellectual property protection into the frenzied money business it is now. Suddenly it looked like everything was about to leak away, and suddenly we all realized how valuable it all might be. Copyright was quickly transformed from individual right into corporate asset. He uses the concept of paracopyright to describe the erosion of our rights under copyright. Of course we all tend now to copy and paste with gay abandon, working on the assumption that if someone put it up without any protective notice they must be willing to see it reused. It’s like a Creative Commons license without any acknowledgment thereof — at least I hope so!

The author writes in an easy style including lots of anecdotes. He reveals that the story of the loss of copyright in the song “Happy Birthday to You” has a kicker, in that Warner/Chappell were adjudged by a US court in 2015 never to have held copyright at all in the song on which they’d been cleaning up permissions fees for decades. They have already settled for $14 million to people wrongly charged for using the song.

We need to remember that IP laws tend to vary from nation to nation. Professor Vaidhyanathan tells us how Angelica Huston was able to prevent the colorization of her father’s film The Asphalt Jungle — but in France only, not USA. Under US copyright law John Huston was regarded as having made the work for hire, and thus to have owned no rights in the movie. His daughter thus didn’t inherit any rights, but in France the force of the “right of paternity”, a moral right under le droit d’auteur, enabled her to assert creative control on her father’s behalf.

Professor Vaidhyanathan’s book is a notable achievement of compression, and anyone involved in the media will benefit from reading it. Maybe you’ll even be able to find it on Book Culture’s spinner now.


Reedsy (via Book Business Insight and Digital Book World) provides this infographic on how to register copyright.

Why to do it though is a different story. Under US copyright law your book is copyright by virtue of its existence. It will always be covered by copyright whatever you do, or don’t do, so some of the ten reasons for registering given here by FindLaw are actually benefits you hold whether you pay your registration fee or not. Registration has one basic benefit: “You can’t sue for copyright infringement or get an order from a judge to make somebody stop using your work unless your work is registered either within the three months after your work is first published, or before the infringement first occurs.” If you worry that such a thing might happen then you should pay your $35 and feel secure.

But note: timing is important.

See also my earlier Copyright registration post.