Archives for category: Copyright

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.

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

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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.

At TeleRead Chris Meadows gives an impassioned appeal for the idea that creativity can be unleashed by looser copyright rules, giving an account of the manga and movie origins of The Castle of Cagliostro.

It’s hard to disagree with him that the ability to riff on Sherlock Holmes can/did release some valuable works. The ability of a copyright owner to suppress even mildly derivative works approaches the scandalous. The original aim of copyright was “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The promotion of science and the useful arts is not possible when copyright owners, often corporate entities backed by vast funds, can stop progress by bringing a law suit (which many artists cannot afford to defend). Maybe that clause from the original law should now be revised to say that the purpose of copyright is “to promote the profitability of corporations and other individuals who own copyrights by securing for as long as these corporate individuals shall deem desirable, the exclusive right to these writings and discoveries.”

Publishing Perspectives reports that a judge has ruled that Moppet Books, a line of children’s books based on well-known copyrights infringe the copyright law. These books do appear to be straightforward simplified editions of the original works, and as such are more justifiably disallowed than new stories which just use the same characters as the original work. Surely a work about Atticus Finch where he gives up the law and fulfills a lifetime’s ambition to ride in the Tour de France ought to be allowed, while maybe a simplified retelling of To kill a mockingbird should legitimately be held to need a license from HarperCollins. The difference is in the transformative nature of the adaptation: but even such works often get into legal difficulties.

America’s on-going love affair with the corporate economy (masquerading as the free market) of course guarantees that in the next few years Congress will manage to get it together to extend the term of copyright even longer. Mickey Mouse is approaching the edge of the public domain precipice. He was “born” in 1928, but won’t fall into the public domain till 2023. Obviously any corporate body would consider 95 years is a totally inadequate term of protection for an asset that still makes money!

Interestingly, fanfiction.net shows 274 fan fictions based on Mickey. I guess none of them represents, in  Disney’s lawyers’ minds, a viable commercial threat, or they’d presumably have been forced down.

I still like my three-part proposal for copyright. It has of course a snowball in hell’s chance.

The question of whether the monkey who took a selfie can or cannot own the copyright, which I alluded to in a post a couple of years ago, incredibly rumbles on. It now seems that his “next friends” are still suing to claim the macaque’s ownership of the picture which he took on the camera of British photographer David Slater. Techdirt, via The Digital Reader, recounts the farce.

The idea that a monkey, even one with a real name now listed in court documents, can own copyright is surely nonsense and the fact that such a suit is being brought just goes to show the power of money (which significantly only differs by one one letter from monkey, a character well known in connection with business) to motivate apparently respectable lawyers to make apparently stupid arguments. I guess you can’t criticize the Ninth Circuit for giving it a Case Number — there it is. They have to judge what comes before them I guess.

That  infinite monkey we’ve all heard about who’s sitting around trying to type the complete works of Shakespeare by randomly pecking at a keyboard will no doubt be given a boost when he hears of this suit. Are copyright riches awaiting the completion of his random task? And if monkeys, why not robots?