CopyRighteous

Google and the Orphan Brats

2009-10-06T17:52:00.000-04:00

Had I but world enough and time.... I'd write a LOT about the Google Books Settlement! Especially since it's all over the news (well, the kind of news feeds and newsletters I subscribe to), so there's a lot to think about and comment about. But I do find this piece especially interesting, which was in the most recent New York Times Book Review. It discusses the Google Books issue in the context of orphan works, a copyright-related topic that fascinates me.

One of the most fascinating parts of this article is just how many orphan works are out there. And even more fascinating is just how many of the works Google has scanned happen to also be orphans. Read the essay through to the end and you'll see just how cunning Google really is in terms of establishing a monopoly, especially in regards to these orphan works.

To this day, I still don't know how I feel about Google digitizing all these books. I love the idea of a universal library, but I want authors to be fairly compensated. I've listened to Google reps talk about Google Book Search and how much positive outcome it has for authors, but I'm still wary. I still feel uneasy. As someone who writes (granted, not currently for an income, but perhaps someday!), I just don't know how I feel about my words being out there on the internet, in perpetuity, accessible and usable by anyone in any way. I know that there are restrictions to what people can see and use in the Google Book Search for copyrighted works, but still. Just can't shake the uneasy feeling, just can't feel 100% right about it all. We'll see what other interesting tangents develop in this sordid tale!

When software contracts bite back

2009-09-03T09:34:00.001-04:00

Oh, those pesky software contracts!

Can Gmail users sue Google for bad service?

Not surprisingly, no.

I did notice the lapse in Google service on Tuesday, and I figured it was just the cosmos working against me. Maybe it was really a blessing in disguise to get me to stop checking email obsessively.

Theft vs. Piracy

2009-08-20T15:39:00.005-04:00

I don't really have the time to regularly update this blog anymore at the level I'd like to--when I was upkeeping it, I really put a lot of time and thought into what I wrote and wanted to provide as much interesting and useful information as possible. I wish I had more time because I really enjoyed writing in here. But I just found this image and had to share it.

A rather simplistic guide, but it's pretty much accurate (and pretty accurately depicts a lot of what goes on via the web, like file sharing, and even what goes on during an average workday at the photocopier). Some would argue (myself included, perhaps?) that piracy is a FORM of theft, but it is not exactly the same thing as theft itself. Thoughts?

Do publishers even fact-check anymore?

2008-03-04T11:42:00.004-05:00

It's happened again: another fake memoir has come to light.

This author invented her involvement in a gang and falsified her ethnicity and background. The "memoir," Love and Consequences by Margaret B. Jones, had received really great critical acclaim and seemed destined to become another one of those great memoirs when her sister saw an article about it and realized that the woman in the photo was not who she claimed to be and called Margaret out.

The publisher, Penguin Group USA, has recalled all copies of the book and canceled her author tour. This came after they had sunk "less than $100,000" into a deal with Jones (whose real name is Margaret Seltzer). (The editor who originally gave Seltzer/Jones the deal actually started out at Simon and Schuster and moved the contract over with her when she went to Riverhead.)

I can't help but think that these publishers and editors would have saved themselves a lot of grief, embarrassment, work hours, and, um, money, had they only had someone verify the stories in the Seltzer/Jones story.

The story details why the author made up the story, but I just can't understand why people think that making up a story and passing it off as true is right. If you create composite characters and base a story off things that happen in real life, it's no longer nonfiction and cannot be passed off as such.

Interestingly enough, I just checked on Amazon.com and the book is still available for purchase. There are numerous angry one-star reviews, most posted within the last 12 hours, calling for the book to be removed from the site. I'll be interested to see if and when the site removes the book from its listings.

Debut novel Beautiful Children released for free, sans DRM

2008-02-27T23:01:00.003-05:00

There's a new book that was recently released called Beautiful Children by Charles Bock. I found out about it through one of my classes because it's this ridiculously hyped book, receiving the kind of hype from the publisher (Random House) you don't really see these days. We were mostly looking at it to examine its website, which is really flashy and splashy and visual but overall hard to get around. But today we started talking about it again because Random House is allowing people to download the book for free, from today through Friday, from their website as a PDF. (You can access the download site from the site I just linked above.)

The most interesting thing about the fact that the book is available for download without any sort of DRM (digital rights management) on it, so once it's downloaded, users could ostensibly do whatever they want with it. Of course Random House makes you click this little box on their site saying "Copyright: This book is protected by copyright and is reproduced here by permission of the author and Random House. I read/understand the above copyright." But I'm sure many of the people clicking on that box don't actually understand what they're clicking into at all, since Random House provides no further explanation anywhere on the site. My instructor showed us how he was easily able to convert the PDF of the book into a text file. This means the file can now be manipulated any way the user wants, which violates the brief, vague copyright agreement downloaders opted into by checking the box.

I wonder why Random House chose to do this; perhaps they're riding on the coat tails of the recent success of the Oprah website offering a free limited-time PDF download of Suze Orman's latest book. Beautiful Children has hit number 14 on the New York Times Bestseller List, so perhaps RH just sees this as one further step in promoting the book to new readers. Plus, it's a long book and people aren't yet accustomed to reading long texts on the screen, and not that many of us own electronic readers. Perhaps RH is banking on the PDF being a teaser to lead people into purchasing a print copy of the book.

I did download the PDF, which took only seconds to do, but I have no immediate plans to read it. I really had no desire to read the print version of the book, after looking at the obnoxious website, and I downloaded the book mostly out of curiosity. I'll probably page (cyber-page, rather) through it at some point, but I'm in no hurry. We'll see if I actually delve into it deeply.

I just wonder what will happen now that there will be all these free, downloaded, non-DRM-ed PDFs of the book floating around in the ether. Not that there's a great deal of value in pirating something that's already available for free, but still. Time will tell.

What do people think? Are free electronic versions of print books a good idea? Are they a good way to promote an author and boost his or her print sales, or are they just paving the way for people to pirate?

The Pirate's Dilemma: A Look at How to Work with, Not Against, Media "Pirates"

2008-02-15T00:07:00.004-05:00

I've got good reason to start blogging on this site again regularly, because this semester, I'm enrolled in a class at Emerson called "Know Your Rights" that covers contracts, rights, permissions, copyright, and all things intellectual property. This means I'll be finding juicy stories once again as well as having fun and fab and just plain bizarre factoids to wax poetic about.

Tonight in class we watched a great slideshow presentation called "The Pirate's Dilemma" that talked about how digital media is changing the way people consume media in general and why the law should work with these "pirates" instead of against them. Granted, the slideshow is ultimately an advertisement for the creator's book, but it's enjoyable to watch and quite informative. I tend to agree with a lot of what he says. And who am I to criticize someone for marketing his book using the internets?

Check it out here or watch below.

| View | Upload your own

Ah, it feels good to be back in the CopyRighteous blogosphere!

UPDATE: I just spent over an hour going through previous entries and tagging them to hopefully make it easier to find information on my blog. My sudden desire to tag was brought on because I am also taking an Electronic Publishing course this semester, and I'm giving metadata a nod. Plus, I love being organized. When I originally created this blog, I didn't really understand what tags were. But now.... oh, the wonders of the internet!

Great Videos on the Writers' Strike

2007-12-13T23:53:00.003-05:00

I have dropped off the circuit for most of the semester, due to... well, the semester's existence. However, a friend did share this gem with me.

This video about the writers' strike is funny, and fitting.

Find the original page here.

Here's a video explaining why the WGA is on strike.

Find the original on this page.

For more information on the writers' strike, visit the WGA website, United Hollywood, and check out this site made by fans to support the strike too.

I miss the Daily Show.

Napster All Over Again

2007-10-23T16:21:00.001-04:00

A recent story in the local Boston paper Boston Now about students at MIT illegally downloading and sharing music caught my interest, partly because of the copyright infringement aspect and partly because of the fact that this behavior seems to be so widespread because people just don't think it's wrong.

The story says how students at Boston college and universities (MIT is the main focus of the story) are being sued by the Recording Industry Association of America (RIAA) for copyright infringement. The students are downloading music files using peer-to-peer file sharing networks like LimeWire. I'm not talking about things like iTunes, where you have to pay to download tracks; in the eyes of the RIAA, those sites are totally legit. I'm talking about the types of sites that are the children and grandchildren of the original downloading site, Napster. Some students who have been sued are settling with the RIAA and paying about $3,000 in settlement, while others are paying a lot more in attorney's fees to fight these lawsuits.

You can see the pre-lawsuit letter from the RIAA to targeted college campuses here.

The way in which the RIAA is going after the students, however, is considered suspect. Their method for gathering evidence against the students consists of an investigator downloading a user's song at random from one of the peer-to-peer networks and listening to it. And apparently by listening to it, the investigator can determine if it was illegally downloaded or not.

Huh?

Okay, so I'm not sold on this methodology; how would just listening to a song determine if it's illegally downloaded or not? Do these songs sound different in some way? It seems suspect to me. But I feel like the real issue here is the copyright infringement issue.

Yes, it's legally wrong for a person to download, use, and share copyright-protected music without paying for it. Despite its creative, somewhat intangible nature, a song is a consumer product, and thus by its very nature it needs to be paid for. Unless an artist or band decides to make its songs available for free download and distribution (which some upstart bands do in order to promote awareness about their music), it is illegal to distribute and acquire their music without paying for it. Obviously people who make their livelihoods from producing these creative products find it grossly unfair for others to, in essence, steal their work (stealing is, by definition, "to take (the property of another or others) without permission or right, esp. secretly or by force" [dictionary.com]). But the people doing the stealing (in this case, downloading and sharing music files) don't usually consider what they're doing illegal or wrong.

I think this is because of the very nature of the internet. On the internet, millions of users worldwide exchange and access such a breadth of information for free already that it almost seems logical for these people to do the same thing with music files, or with things like the texts of books or copies of digital images for instance. The internet's very nature makes it difficult, though not impossible, to police its millions of users as well as what they're using and how they're using it.

And the fact that the RIAA is going after people, many of them college students who don't fully understand the nature or repercussions of their actions, makes a lot of people really angry. It pits these people against the RIAA. And because of this, it actually makes people more prone to engaging in the very behaviors (illegal file sharing) that the RIAA is trying to discourage and put an end to.

The problem isn't going to go away, especially as increasingly more parts of our lives become digitized: cell phones, laptops, MP3 players, and more. A quick look around the RIAA website shows that they're continuing to go about this in a dissuade people from downloading illegally and going after those who do kind of way. I'm not sure that this is necessarily a good solution, or a solution at all, but I can't really think of any other solution, to be perfectly honest. How can you stop all people everywhere from doing what they're doing? I acknowledge that illegally downloading and sharing music is wrong, but I also admit that I myself used to do so many years ago in college (and by "many" I mean "five," back in the days when Napster was still a newborn and still free). I can see both sides of the coin here.

What do people think? Is there a better way to police the use of music? Is there really anything the RIAA can or should do after a CD is off the store shelves and in a consumer's hands? Technically a person can make a copy of a CD onto a personal computer or MP3 player for personal use, but they can't distribute it--such as making it available on the internet for others to download or giving the copied CD to a friend. But is this preventing people from hearing new music? For instance, I've just asked a friend to copy an album for me that I already own but have lost the disc of and which I didn't have any other copy of. I already paid the band, many moons ago, for the disc; I already know the songs. I miss them. I want to listen to them again. But I am annoyed at the thought of repurchasing the CD because as soon as I do so I'm sure I'll find it somewhere. So I asked my friend to make a copy of her copy of the CD for me. Is that a horrible thing? Does that make me a criminal? I admit that I no longer use peer-to-peer networks to download music; in fact, I haven't downloaded music using a peer-to-peer network since I graduated college in 2002, just as the Napster issue was starting to come to a head. The only music I've downloaded since then are songs written by a friend of mine who allowed me to download them for my own use and songs that were available for free download as part of some sort of band promotion. While this keeps me from discovering new music (my musical tastes and collection halt abruptly in 2002), it just doesn't seem worth the risk to engage in peer-to-peer file sharing, because I don't want to get sued.

Should the RIAA just leave people alone? Is downloading really hurting the music industry? What do people think? Are downloaders criminals or just doing what comes naturally when you use the internet? Leave me your thoughts.

Check out the RIAA website here.

When Your Writing Goes Amok

2007-10-04T14:59:00.001-04:00

Now I'm no expert on this because I've never killed anyone, but it seems to me that if someone commits a murder, he will do everything in his power to keep his crime a secret and to keep himself from getting caught.

Not so for this Polish author.

Now keep all those Polish jokes to yourself. Anyone could have honestly made this mistake--confessing to a murder he committed in a novel he wrote. Right?

Right?

The novelist, Krystian Bala, wrote in his 2003 novel about a man being found drowned with his hands tied behind his back and attached to a noose tied around his neck. Interestingly enough, three years prior, this is exactly how Dariusz Janiszewski's murdered body was found.

After an investigation, Bala was tried and sentenced to twenty-five years in prison for initiating and planning the murder.

Jokes aside (go ahead and make them, I can hear you laughing), this raises the interesting question about basing fiction on real life. Although there is some safety in writing fiction ("Hey, I made it up!"), it's not failproof. There's still the danger that someone will look at your fiction and recognize a person or situation. Many fiction writers find themselves basing their characters or the situations they're in at least on some portion of real life--be it an idiosyncrasy of their mother's, their best friend's house, their brother's weird dental problems. It's natural for fiction writers to draw inspiration from the world around them, especially those parts of it they are most intimately connected to. But fiction writers must realize that with the great power of the fictional pen comes great responsibility--especially if they have appropriated something that belongs to someone else (personality trait or characteristic or whatever) to use in their own creation.

It just goes to show: put your secrets in a diary and keep the diary under your mattress instead of in a novel meant for public consumption.

Of course, this entry doesn't address what happens in nonfiction (especially the creative forms of it), which is something we're talking about in my ethics class currently, as we're talking about New Journalism and the subject-writer relationship. That's a whole other can of worms that I have a lot to say about but this isn't quite the time or place just yet. But soon.

Also, I was recently asked in a comment a question about copyright infringement when a book is out of print and what a person's rights are in that situation. I will attempt to address this soon, in a future entry. It was an excellent question, so thank you!

Never having to say you're sorry

2007-09-25T12:31:00.001-04:00

While we may be skeptical of how sincere politicians are when they publicly apologize for their wrong-doings, we don't generally tend to question the origin of their words. We tend to assume that even if the politician sounds insincere reciting a contrived speech, the politician's words are at least his own insincere, contrived musings. But now, thanks to a disgraced (or, as you'll soon see, twice-disgraced) official in China, we can't even trust that our politicians' speeches of apology are their own words (or their speechwriters' own words).

Zhang Shaocang, a Chinese official, was on trial for corruption and seemed so heartily sorry as he read a lengthy letter aplogizing for his wrongs that he wept. His tears, however, veiled the fact that his apology letter was a nearly perfect duplicate of one previously written by another disgraced official, Zhu Fuzhong. So in addition to the wrong-doing that led to his corruption trial, he added insult to injury by then stealing another person's apology letter and passing it off as his own expression of remorse.

China already has a rather shoddy record when it comes to copyright infringement issues, so this isn't necessarily rosy news for the nation. It's bad enough that officials make insincere public apologies; copying someone else's apology just doubles the insincerity and calls the person's integrity seriously into question.

In cases like this, insincerity means never having to say you're sorry. Please.

Running with Scissors

2007-09-10T10:37:00.001-04:00

Never take candy from strangers. Never swim a half hour after eating. Never run with scissors. All good advice from Mom. And, in the case of the last, advice author Augusten Burroughs should have taken to heart.

Burroughs, the author of several nonfiction books including Dry and Magical Thinking, just settled a lawsuit brought against him and his publisher over what he wrote in Running with Scissors: A Memoir.

Running with Scissors, which was also made into a movie, recounts the story of Burroughs's life with the Turcotte family when he was younger. The head of the Turcotte family was Burroughs's mother's therapist, and the therapist was made Burroughs's legal guardian so that the teen could stay with them and attend schools in Northampton.

In the book, Burroughs calls the family the Finches and alleges them of outrageous behavior (electroshock therapy, deviant sexual behaviors, and so on). I use the word "alleges" because the family felt otherwise. They sued Burroughs and his publisher, St. Martin's, for defamation, invasion of privacy, and emotional distress. (Hey, remember all those?) The Turcottes demanded $2 million because they claimed the book was mostly fiction laden with sensationalism to drive sales and also that their family was easily recognized as the fictionally named Finch family, despite the fact that the book begins with an author's note claiming that the names and identifying details of characters have been changed.

The author and his publisher settled with the family and now have to start calling Running with Scissors a "book" rather than a "memoir" in the author's note and also have to include a disclaimer in future editions that the book is based on Burroughs's memories and not those of the Turcotte/Finch family. But St. Martin's seems pretty triumphant that they were able to settle and claim that this is evidence that the book is accurate.

So Burroughs and St. Martin's defended the book as "entirely accurate." However, in a statement released earlier, Burroughs said that the book was "loosely based" on his experiences. So which is it? Accurate or not? Truth or a memoirist's interpretation of his memories?

Memoirs are an increasingly popular genre, and since very few people spend their entire lives in total isolation, by necessity memoirs also include accounts of experiences with other people. But the very nature of memoir is open to a lot of error: unlike biographies and even autobiographies, memoirs are based for the most part entirely upon the author's memories and recollections as opposed to being based on research, interviews, and other facts. The human memory is a highly fallible and changeable thing. As years pass, our recollections of incidents and people become fuzzy. We may blend incidents together, forget what happened, reinvent the truth--all in all, it's definitely not a black and white world. So a degree of relativity enters the truth-telling in the world of memoir, which is all degrees of gray. Students of literature understand this, and while some memoirists strive to be as accurate as possible, others are okay with bending the truth a little to suit creative literary conventions and devices. But the thing is, do readers understand the nuances and varying degrees of accuracy involved in memoir? Or do they believe that everything they read is substantiated fact as opposed to author memory? I think this is where the problems begin.

And in the case of the Turcottes, the problem is that their memories and the memories of the memoirist not only contradict each other but also that the memoirist has painted them in such a negative light and made them so easily identifiable that it could ruin their reputations. According to an interview with the Turcottes in Vanity Fair, several of the Turcottes have suffered emotional, mental, or in some cases physical distress over what Burroughs wrote. While the Turcottes do admit that their father was eccentric and that their family did have some unconventional experiences while growing up, they deny a lot of the experiences that Burroughs claims they experienced together. They also claim that he distorted and exaggerated the amount of time he lived with them. Burroughs claims now that what he wrote is true and that he kept extensive journals during his childhood and teenage years about his experiences. But some of the other stuff he says seems shady and he seemingly implies that not everything is as it seems. I recommend that you read the Vanity Fair article I linked to above. It's illuminating if nothing else.

So when it comes to writing, especially something with a creative bent that's so highly personal, where do we draw the line? Or are there any lines that need to be drawn? Wouldn't a simple disclaimer saying that the experiences within are the recollections of the author that aren't necessarily supported by anyone else, or does the author have a greater responsibility to his subjects and his publisher to do more? Some memoirists send the manuscript pages involving other people to those people, to make them aware that they're being written about. In the case of the Turcottes, they claim that they didn't even know Burroughs was writing about them until after the book was published and achieved bestseller status.

The memoir issue affects me rather personally as I sometimes write memoir pieces. For my senior honors thesis, I wrote a memoir about my mother and myself and how my mother's Cuban background influenced me, etc. Several other family members figured into the memoir. While my mother was very pleased with the project, her sister, who also read it, made a comment to me about how her behavior wasn't the way I'd described it in a certain section of the manuscript. My defense was that the way I described her behavior was the way I perceived things to be true. I'm sure that if I saw myself described by another writer I'd potentially find what I believed to be an inaccuracy in his description. But to the writer, his description probably rings true with the way he sees me.

But this is different than making up substantial portions of a book that purports to be based on real-life experiences. That's where I feel that the issues arise, especially when many general readers aren't aware of the gray area surrounding memoir. What do you think? Should there be rules surrounding memoirs? Should they all carry disclaimers? Should the publisher be held responsible in instances like Burroughs's? Is the publisher responsible for fact-checking something like a memoir, or does that rest solely upon the author? I'd love to hear your thoughts, so please do share.

UPDATE: MORE LINKS ON THE STORY
I've found some more links for further reading about the story.
From the Boston Globe
From Publishers Weekly
From the LA Times
From USA Today
NPR's interview with Burroughs's mother including a comment written by someone who allegedly knew her
From the Milwaukee Journal Sentinel
The Book Standard interview with Augusten Burroughs
Bookslut interview with Augusten Burroughs where he describes how a person can research the identity of the Finch family
Washington Post article
Entertainment Weekly

Back in the Blogosphere, and Sharing a Useful Flowchart

2007-08-29T10:58:00.001-04:00

I'm back! I'm back in Boston after two weeks spent in Pennsylvania visiting family and friends, sleeping a lot, reading for fun, ignoring the internet, and eating a lot of fried food (my cure for a brain fried by a hectic summer semester--filling my stomach with food that's fried). And now that I've rested my brain, I'm back in the blogosphere because I'm in "academic mode"--or at least trying to get myself back into it, because the fall semester rapidly approacheth and I need to be sure my brain is up to it. A mental workout of sorts, if you will.

Now that my summer semester and project are over, I'll continue posting entries on this blog about interesting and amusing copyright stuff that I find. Today I was looking at a link that was sent to me with a humorous chart that the Recording Industry Association of America (RIAA, the fine folks responsible for those lovely "Explicit Content" stickers) supposedly "uses" in determining who to sue for copyright infringement. Find it here.

Hilarious! And probably not far from accurate.

The End - Or Just The Beginning?

2007-08-12T00:08:00.003-04:00

What a long, strange trip it's been.

Delving into copyright and writers' issues over the last three months has been not only a great learning experience but also an adventure of sorts. All great adventures entail a journey, which is exactly what it felt like as I traveled from resource to resource, learning about the basics of copyright and building upon each thing I learned as I came to understand just how all these things fit together and affect writers.

Although I had a basic understanding of the issues I covered in this blog (which is how I determined I wanted to study them in the first place), I had no idea just how complex the topic really was. One of the things that most struck me was just how much copyright affects the lives of anyone working with intellectual property in America today, whether they are creators or consumers. Copyright and its associated rights and contractual implications are of great importance to writers. And yet it seems like copyright is one of the most confusing and least understood things writers find themselves grappling with in the publication process. The purpose of copyright is to protect creators, and it instead seems to confuse and hinder them in many ways. Just as confusing is the fact that many of the legal issues surrounding copyright are not clear-cut, black-and-white issues. Instead, copyright law is tinged a thousand shades of gray; the more you learn about it, the more confusing things seem to get.

In my blog poll, I asked what readers thought of the terms of copyright, and the majority of voters think the terms of copyright are too long. The life-plus-seventy term of copyright today is designed to allow copyright holders and their next of kin to exploit and reap the benefits that come with holding a copyright, yet more often than not, due to the quick turnover rate in the publishing industry, people's works quickly go out of print and it seems like the masses are the ones who are then deprived of access to information. Just as Abby learned in our previous entry, copyright can be just as much of a hindrance as a protection.

How do I feel about current copyright terms? While on one hand I do feel that authors (and all creators for that matter) have the right to be protected, I also feel that copyright terms are prohibitive, especially once an author is dead. As media change, so too do the ways in which we create, share, and use information, and thus I feel as though the way in which we use and apply copyright in the future needs to evolve along with our evolving needs. As the internet continues to expand, it will be increasingly difficult to police everything that goes on in cyberspace, including copyright infringements. The fact that we can now digitize entire books and use them in entirely new ways thanks to technology means that keeping a tight rein over information to prevent its dissemination would be counterproductive and counterintuitive. A happy medium must be reached in which authors profit from their works but users can also profit as well, without having to wait nearly a century for information to go into public domain so that it's easy to access. I feel as though authors should be able to create and assign their own terms of copyright to their works as they deem fit. I know Creative Commons has started serving this need, and I feel as though it'll start to become more of the norm as the century (and technology) progress. I certainly want to talk more about Creative Commons. And that brings me to my next point.

Even tough my project is technically over, I do plan to continue posting entries about issues as they arise. I'm not sure if I just didn't see it before because I wasn't studying it, but I seem to see news items come up more frequently that deal with the very issues I covered in this blog, so there shouldn't be any shortage of things to write about. I hope you've all found my blog an informative resource and I hope that you continue reading. And as always, if you have any feedback or suggestions, please let me know.

Stay tuned... it seems this is only the beginning.

A Ruckus over Rights: Abby's Translation Headache

2007-08-10T00:00:00.002-04:00

Abby is a bilingual literature lover. In addition to reading books in both English and Spanish, she herself is a writer and she also does translation work.

She's found the work of a particular author (let's call him Pedro) to be particularly moving. Pedro is American but the the work is written in Spanish and Abby wants very much to translate it into English. But she's run into some problems.

First off, Pedro is dead. This means she can't contact him to find out how to get the rights to translate his work. When this is the case, the rights to an author's work are either transferred to the person stipulated in the author's will or, if the author's will doesn't make provisions, the rights are divided up with the rest of the author's property according to intestate laws. Pedro's rights were apparently transferred to a guy who, for the sake of argument, we'll call Jerk (because that's what he's ended up being). Jerk appears to have the rights to Pedro's work, and he's not letting anyone else have them. It saddens Abby, because she loves Pedro's work and she wants to translate it into English so that more people in the U.S. can read it. She even has a "hot" agent interested in her project--IF she can get the translation rights. But the agent's not really doing anything else until Abby gets those rights.

Abby found out more about the book's publication history. The book was originally published in Spanish by a small publisher in Miami as the result of Pedro winning a contest. Jerk helped him to edit the book, which may be why he's the one currently holding the rights. The original publisher of a work usually holds the translation and foreign sales rights of a book as stipulated in the author's contract, so Abby thought that the original publisher of Pedro's work might still have these rights. She contacted them but was told that they no longer held the rights to the work and that they no longer had any other information available on the author or his work either. Abby then found out that the book had been published in Spain. When she tried to contact them, she was told that the rights were held by Jerk. She's now contacted a French publisher who did a French-language edition of the book and is waiting to hear back from them.

In the meantime, what can Abby do? Pedro died in 1993, so the end of the life-plus-seventy-years term of copyright protection is rather a long ways off. Unfortunately, if Jerk is the only person still holding the rights to translate the book, Abby's hands are tied. Since the work is still protected by copyright, any translation Abby published of Pedro's work without holding the rights would be considered a copyright infringement and Abby would be involved in a lawsuit.

This is one of those maddening instances when I get really frustrated at how long copyright lasts in this country. It's particularly frustrating in this instance because there's actually an interest in publishing Pedro's work, which would financially benefit Jerk. Abby isn't sure why he's being so protective of Pedro's rights, but he is. At this point, what should Abby do? If she hears back from the French publisher and their answer is negative, does that mean all hope is lost and she must resign herself to a life of pining away for the Translation that Never Was?

Not quite yet. There's one more thing Abby can do. Since the work was written in the U.S. by an American, it is registered with the U.S. Copyright Office. The Copyright Office allows people to conduct searches to investigate the copyright status of a work. Abby can search their catalog and other records in their Washington, D.C., office for free to find out who currently holds the rights. Or, since the work was registered after 1978, she can use their online database to conduct a search. Or she can have the Copyright Office conduct the search for her for a fee of $150 an hour.

Abby can search online to get more information about Pedro's copyright registration. (I recommend viewing the tutorial that's available on this page to get a better idea of how to use the search function and understand your results.) In Abby's case, I think she should use the online search function to get more information about Pedro's copyright and then perhaps she can contact the Copyright Office with questions about contacting the current copyright holder.

This is, of course, an unfinished story, as Abby still has to conduct her search of these records and also hopefully will be hearing from the French publisher soon. I'll post an update once Abby has found out more information.

It can be frustrating to run into walls such as this one when you're trying to republish work that's still protected by copyright--a copyright closely guarded by seemingly irrational people. Certainly Abby's situation is not unique; I had a professor who encountered the same problem when he tried to publish a dead poet's collected works. Some poems were already in the public domain, but some were not and my professor discovered that the rights were still held by a poet's relative. The relative refused to allow my professor to have the rights to include the protected works in the collection. Why? The relative stood to benefit financially from the arrangement and also would not have had to go to the trouble of doing any work herself; my professor would have done everything editorially and otherwise. Perhaps she thought she could publish the work on her own? Perhaps she just didn't want to share her dead relative's work with anyone? Whatever the reason, my professor had to scrap the project and the literary world is now one work poorer. I hope things don't turn out the same way for Abby, because the last thing we need is to be deprived of a good book.

FOR MORE INFORMATION ON COPYRIGHT SEARCHES

Copyright Office Basics: http://www.copyright.gov/circs/circ1.html
This useful website provides a great deal of useful information on copyright--it's sort of like a copyright primer. There are lots of hyperlinks throughout that provide even further explanations and information.

Contract Quandary: Ted's Novel

2007-08-09T20:12:00.001-04:00

Once again, I've changed my friend's name. However, I'm using the real name of the press he dealt with here because I want others who are potentially considering doing business with them to NOT do so, as they have been involved in lawsuits with more than one of their authors and have had seemingly countless complaints lodged against them. (Go ahead and Google them if you wish, and you'll see it for yourself.)

Ted's a novelist, and a rather talented one at that. But as I mentioned in a previous entry, the publishing industry is pretty tough right now, and Ted's been having a rough time. He sent his query out to many agents, but none of them were biting. He then started querying publishers directly. Still nothing. Finally at the end of his rope, Ted decided that he should probably just self-publish his book. After all, he believed in his book, he understood that it was somewhat unconventional and thus not being picked up by conventional publishers, and he just wanted to see his words in print. He tried for over a year to sell his book and got nowhere, so, in a very self-starter, DIY kind of way, he decided to just do it himself.

But just as he was about to undergo his self-publishing project, he was contacted by a publisher. They wanted to publish his book, they said. Ted was initially quite happy that he'd finally been picked up. He sent out an email to his friends letting them know of his success. "Publish America offered to publish my book," he said. He went on to explain that he would be making royalties from his book (though not very good ones, he admitted) and that he wouldn't have to pay to have his book produced, which is something he would have done if he self-published his work. And by being published by a press rather than being self-published, he thought it would be easier for people to buy his book.

When I received the email, I was curious because I'd never heard of Publish America, and, being a publishing student, I love to learn about different publishers. So I did an internet search to learn more.

I found the publisher's website. I wasn't too impressed with how it looked; it had a somewhat unpolished look that I didn't find terribly professional and the visuals weren't the best, but I knew I shouldn't judge a book by its cover, or a publisher by its website. I browsed around the site a bit, then I went back to the search results page and noticed that there were some articles written about them. I clicked.

What I read wasn't good. Publish America was branded as an "author mill" with countless complaints lodged against it. It was described as being nothing more than a souped-up vanity press, with books that were nearly impossible to find in bookstores, high cover prices, and little or no promotional effort. The company also did minimal editing, and actually charged authors money to edit their work substantially. I read a feature article from the Washington Post, an unflattering Wikipedia entry and posts on the Preditors and Editors site and on other author message boards. I was overwhelmed by the amount of negative feedback I found and quickly emailed Ted to warn him to proceed with caution. I was especially concerned because I read quite a few complaints about how bad the contract was and how hard it was to get out of it. Since I was in the thick of studying contracts, I also asked Ted if he'd signed the contract yet.

He had not. He thanked me for my honesty in warning him about the negative feedback from other Publish America authors and then sent me a copy of the contract they sent him.

At this point, I had seen a few contracts from traditional publishers and had read enough about rights and contractual clauses to have a general idea of what to look for. The contract began with a clause stating that the duration of the contract was seven years, during which time the publisher acquired the right to sell the book in the U.S. and Canada and that the publisher had the exclusive right to arrange for the book to be published in foreign countries. Hmmm, I thought. That's odd. It just sort of threw that in there but never discussed the royalty breakdown that the author would earn upon this sale. And after having read the disgruntled negative comments from Publish America authors, I deduced that the publisher didn't even bother to think about that because they didn't even bother to make the effort to sell the rights anywhere. And I noticed that their statement about selling other rights, such as dramatic and film rights, was a 50-50 split for all these rights, which differed from other publishers whose splits tend to favor the author. The contract also stipulated that the publisher had the right to publish the work electronically, but didn't stipulate royalty splits/author compensation.

The revision clause was pretty lousy, and stipulated no timeline for how much time the author had to revise the work and what constituted an acceptable work. Though through my research I found that the company not only typically didn't bother to revise or edit works but also that the company charged authors for extensive editorial services--that is, those exceeding simple copyediting. And I also noticed that the contract stipulated that if the author decided to add any material to the manuscript after signing the contract, the author had to pay the publisher in order to do this. This seemed messed up to me; I know that editorial departments in publishing houses aren't what they used to be, but surely publishers expect that material is to changed, added, and/or deleted after the contract is signed so that the book is edited up to publication standards. It's one thing to charge an author against expenses if the proofs are ready to go and the author decides to add three entirely new chapters; but it's another thing to charge the author for edits made after the contract is signed, at a point in time when the manuscript hasn't even gone through editing by the publisher.

The contract also stipulated that any revisions made to the work for future editions would not incur any additional initial payment by the publisher. What? Ted probably wouldn't revise any future editions of his novel, since fiction is very rarely revised, but I just thought that was sleazy.

That is, until I got to the portion of the contract detailing the advance. Talk about sleazy.

It was absolutely the last clause in the contract, right above the signature lines, which I also thought was odd because payment isn't usually the very last thing discussed in a contract. It said that the author would receive a one-dollar advance.

One dollar. As in, a buck.

This was what sealed the deal for me. The horror stories and testimonials and articles had me convinced that this company was crap. The one-dollar advance convinced me that not only was this company crap but also that Ted should run screaming for the hills away from this company.

What kind of traditional publisher wouldn't be willing to make an investment in an author, even if only a small $1,000 advance? The dollar advance was like a slap in the face, an insult to the writer. Publish America was nothing more than a vanity press that recovered its expenses by overpricing its books and trusting that the author and his friends and family would buy these overpriced copies directly from them--since they wouldn't be able to find them in bookstores. A paperback novel for $24.95? Why bother? You can get a new hardback novel for that price, or even less that. And you can get it at the bookstore.

Some of the testimonials I read also stated that frustrated authors found it difficult to get out of their contracts after they realized how awfully the company treated them. Others claimed that their contracts were suddenly terminated, with no explanation given by the company, but these people deduced that it was because they had the nerve to pester the company for answers about seemingly fraudulent royalty statements or to ask why bookstores had such problems ordering copies of the book. Bookstores usually don't carry print-on-demand books (which I realized that Publish America books were) because they can't be returned. Apparently, Publish America also offered booksellers a very low discount off of the already high cover price, discouraging stores from buying it. Booksellers and libraries reported having problems ordering copies of the books from major book distributors as well. What's the point of having a book in print, I wondered, if no one can buy it?

After reading the contract and the negative testimonials, I deduced that if Ted truly wanted to see his work in print, he would be better off self-publishing his book with another company. I knew it meant he would have to pay the company for their services and that he'd have to do a lot of publicity work on his own, but I felt that these expenses were Ted's way of paying for his sanity. By self-publishing, Ted would be able to retain all his rights and keep control of his work. He could determine how to market it, what subsidiary rights to sell, if any, and would get to cancel his contract with the self-publisher at any time. This meant that if a traditional publisher finally decided that it did want to publish his work, Ted could easily end his contract with the self-publisher and move on. Or if Ted's second book was picked up by a publisher and they decided to reissue his first book, he'd have the ease to do that as well. Ted may not make a boatload of money off his self-published novel, but at least he'll have the peace of mind that he can control the whole project instead of being locked into a poor contract with a nightmare company. To me, that seems priceless.

Copyright Conundrum: Nancy's Poetry Website

2007-08-09T13:26:00.001-04:00

During my studies I was fortuitous enough to not only have friends of mine read my blog and tell me that it was helpful but also to have friends who experienced some of the very issues my blog entries touch upon. I’ll be presenting their stories here (with names and details changed to protect the innocent!) along with my thoughts. I’ll put each story in a separate entry to make them easier to read.

My friend Nancy is a lover of all things literary. She’s a big supporter of the arts and of emerging artists. She has a master’s degree in literature and taught the subject at the undergraduate level. And she’s also a great writer herself. So when it comes to the written word, I’d have to say she’s a pretty big proponent.

She’s also relatively web-savvy. She’s got blogs and websites for her various publishing and writing projects. I was perusing her online projects recently where I came upon one of her sites where she has posted poems. At first I thought what a neat idea it was—making poetry easily accessible on the web, especially since many of them were lesser-known poems that people might not otherwise have the opportunity to read. As I looked through them, I recognized some as older poems published decades—or even centuries—ago. But there were other poems I didn’t recognize. After one of these poems was a link, which I clicked. It led me to a website for an online magazine in which the poem had originally been published.

Had Nancy gotten permission to reprint the poem on her site? I went back to Nancy’s website to see if there was any information on there about getting permission to reprint, but there was none.

I was concerned. While I agreed with what Nancy was doing—exposing more people to poetry, the sadly most-overlooked form of literature out there it seems—I also knew that she could get into trouble for copyright infringement. Some of the poems she printed were old enough to be in the public domain, so that was no problem. But some other poems were recent creations, meaning that they were still protected by copyright.

Does this even matter? I thought. Nancy’s site is still in its infant growing stages and isn’t visited by a relatively small number of visitors each day, as compared to other websites. Who’s going to notice? Who’s going to care?

But then I thought further about the nature of the internet. The whole point of the internet, and specifically search engines, is to find the information you’re looking for quickly and easily. The internet’s biggest strength and weakness is simultaneously that information is so easy to access. It means that anyone can publish anything—which means copyright infringements flying everywhere. How much these infringements are enforced or even noticed is questionable; but I do think that creators of copyrighted materials are becoming more aware of the issue and are increasingly acting more upon it.

As I thought about who would notice Nancy’s site and its infringements, I imagined one of the poets Nancy had reprinted typing his own name into Google (admit it, we all do it!), and finding not only his poem “My Poem” on the original online magazine site but also on Nancy’s site.

“Wait a minute,” says Mr. Poet. “I know I sold this poem to Website X, but I don’t recall selling it to this Nancy character.” So he contacts someone from Website X, to see if perhaps they sold reprint rights to his poem and just neglected to tell him.

“Huh?” say the editors at Website X. They go to Nancy’s site. Trouble could thus begin. It could begin even if Mr. Poet never got paid a dime to publish his poem initially on Website X. He still probably gave the right to publish to Website X, and if Website X didn’t give anyone else permission to reprint the poem elsewhere (namely Nancy), that spells trouble.

I was in quite a quandary. What to do? How could I protect Nancy from possible infringement problems while still preserving the integrity of her site and helping her spread poetry to a greater audience of readers? (A lofty notion, perhaps, but one I find worthwhile.)

I knew that Nancy could use older poems that are in the public domain with no worries. But what about the poems still protected by copyright that were published on other sites? First I considered urging Nancy to seek permission from all the original publishers of the poems she wanted to post. But after considering this idea, I ruled it out as impractical. First off, Nancy's sole job was not this website; she worked full time and also managed several other projects that took up a considerable amount of her time. Seeking out the permissions would be quite time consuming, not to mention the lag time that would come between Nancy's request and the request being granted. Secondly, Nancy did not make any money from this project (or from some of her other projects) so she was in no position to pay for permissions should some of the original publishers request compensation. So that was out. As I thought about Nancy's problem further, I realized that the very medium she was working in provided a solution that would lessen her risk and allow her to continue with her project.

Nancy could provide the links to the original websites where the copyrighted poems appeared. Providing sources to copyrighted material, without actually reprinting the copyrighted material, is fine. Under fair use, I suggested that she write one or two lines of the poem and then provide the link to the original source. While not 100% fail-proof (remember how sketchy the “guidelines” for determining fair use are?), it was certainly safer than just reprinting the entire poem.

While Nancy was disappointed that she couldn’t just reprint the entire text of any poem she wanted, she was grateful for what I pointed out. “I was wondering if anyone would notice what I was doing,” she admitted. She was a little confused about how else to present her content—she knew she might get in trouble, but she loved poetry so much that she didn’t want to stop doing it—so she appreciated my suggestion and took me up on it.

Even though she no longer reprints whole poems and her site visitors now have to go through the extra step of clicking a link to go to a new page, I think she feels a little safer. And I don’t think it’s such a bad thing to have to take that extra step. The beauty of the internet is that we can present information in nonchronological ways. The way we read and access information is no longer constrained to conventional page format. We can click links to be taken to new pages, have more than one webpage open at a time, watch a video halfway through a story, and even listen to things while we read. What could have presented a problem for Nancy in another format is thankfully solved rather easily and simply due to the nature of the medium she’s using. Copyright conundrum solved.

Lawsuit-Free Writing in Lawsuit-Happy Land: Is It Possible?

2007-08-09T01:30:00.001-04:00

I’ve covered the contracts you need to know about once you’re done with the writing process—the publishing contract, the agency contract. But what about legal issues pertaining to the actual writing itself? Remember those warranty and indemnity clauses in the contracts? What exactly do they mean? How do laws surrounding copyright and related issues affect you and your writing?

We’re lucky to live in the United States; we have a more lenient policy when it comes to free expression. The right to express ourselves is protected by the First Amendment to the Constitution, which prohibits, amongst other things, laws that prohibit freedom of speech and freedom of the press. But, like anything else, there can be some exceptions to this rule.

The way copyright law is structured is such that it works in tandem with the First Amendment to create a balance: ideas can be freely exchanged amongst U.S. citizens while the creator/expresser of these ideas is simultaneously protected from having his or her ideas used illegally (infringement, plagiarism, and such). So you, as a writer, can say pretty much anything you want (thanks to the First Amendment) and you, as a writer, also have the ability to protect and exploit what you’ve said (thanks to the Copyright Act).

But writers can face some issues when they’re writing about real-life people, whether the book is considered fiction or nonfiction. Although the First Amendment protects a writer’s right to freedom of expression, writers must be careful if they’re writing factually about other people—even if they’re just basing a fictional character on a real person’s personality traits or experiences.

Here are some things writers should be aware of when they’re using real people in their writing. (Once again, I disclaimer myself by saying that I’m just making you aware of legal issues and I am offering some basic suggestions, but in no way am I offering you legal advice; contact a lawyer for that!)

Using real people in writing, especially in nonfiction, is unavoidable. Newspapers, reference books, biographies--all would be impossible if writers weren't permitted to write about real people. The whole point of nonfiction is that the reader assumes the truthfulness of what is being written. What happens if a writer doesn't write the truth? What is it okay to reveal and what isn't okay? These questions regard defamation.

Defamation is the act of hurting a person's reputation by making information about that person known to the public. When referring to defamation done through the written word or through broadcast, it is termed libel. (Slander defines spoken defamation.) There's actually no federal law governing libel, so each state has its own variation on how it handles libel suits.

What constitutes libel? Like everything else regarding intellectual property, there are no clear-cut answers to this question either, but here are some questions to consider in determining whether something is libelous.

Is the statement true? If so, it's not considered defamatory. Lies, however, are defamatory. George W. Bush is an unpopular president is true; numerous polls support this fact. George W. Bush is really a woman in disguise is false, unless anyone out there is willing to get really adventurous to prove it true.

Is the statement conveyed as a fact? Something conveyed as a fact is more likely to be ruled as defamatory. Opinions, however, are protected under the First Amendment. A restaurant reviewer can thus say that she believes the chef at Joe's Diner doesn't make very good food, because that's her opinion. However, she can't say that the chef at Joe's Diner obviously intends to poison every customer at the restaurant with the horrible food. She may believe it, but that wanders into defamatory territory.

Is the statement published? If the statement hasn't been seen by any third party, it's not libel. For instance, the food reviewer may write a private note to the chef saying, "You're trying to poison me!" But unless that food reviewer makes that statement known to the public, in a newspaper or magazine, the statement isn't libelous.

Is the person in the statement identifiable? Just omitting a name won't get a writer off the hook. Identifying details, such as gender, physical traits, personality characteristics, occupation, and so on are often enough to clue people in on the subject. A reporter standing outside a school on the same day that salary cuts have been made sees a teacher storming angrily out of the school. The reporter doesn't ask the teacher the cause for his anger, instead assuming that it's because he'll now be paid less. When considering the reporter's article, the potentially untrue statement "A teacher at the school was unhappy with the pay cuts" is a lot harder to prove as libelous than "A music teacher at the school was unhappy with the pay cuts, especially after he'd worked at the school for seven years." Those details in the second sentence make it much easier to deduce who the person is.

Has the statement caused real harm to the subject? Perhaps the person was fired from his job, was served a divorce by his wife, or just had his reputation damaged. Perhaps none of these things happened but the publisher had enough reason to believe the statements were defamatory--and published them anyway. That's also grounds enough to be considered as causing injury to the person. But what if all that happened was that the person got extremely pissed off? They may not win the injury card, but they can win by accusing the writer of mental anguish.

Of course these are rather general and sweeping guidelines here and there are exceptions to everything, but they're a good basis for understanding what sorts of things constitute libel.

Another important factor in determining libel cases is a person's status as a public figure. An interesting equation governing libel suits is that the more famous you are, the less you're protected. This is because it is assumed that a person understands that by becoming a more public figure, he or she will thus be more regularly covered in the media and exposed to the public. The public has more of a right to know what's happening in a public figure's life and thus the press has a right to report on it. And a a person's fame increases, so too does the right of the press to criticize that person's behavior and character. The law even oftentimes becomes more lenient towards those who may inaccurately report information about a public figure. So in order for a public figure to prove libel, he or she must prove that there was "actual malice" involved in the defamation--meaning that damaging falsehoods were intentionally printed as fact.

What if someone's dead? Can you happily blast away at them? While it's true that you can't be sued for libel by a dead person, that person's surviving family members, for instance, can sue you for the mental anguish you're causing them.

Ah, you say, but I'm a novelist. I write fiction. None of this pertains to me.

To which I reply: Ah, but it does!

What drives a great novel? Great characters. And where do great characters come from? The depths of the author's imagination. Okay, I'll buy that, but how did the author's imagination come up with them? Real life. Authors use elements of real people--quirky habits, personality traits, physical characteristics, likes and dislikes, experiences--to build characters and their storylines. These novels are known as roman à clef, meaning that fictional characters and storylines are based on real ones. Doing something like using one or very few details from real life doesn't count. Your friend always wears knee socks with Birkenstocks, say, or always says, "You can dig that, right?" after every question and you attribute this to one of your characters--that's not really problematic. Where the problem does come in is when you heavily base a character in your book on a real person and have that character doing negative things--or even have that character exposing negative things the real person did. Just changing the name and a detail or two won't always protect you. In the case Bindrim vs. Davis, the novelist and defendant, Davis, visited a psychologist named Bindrim during one of his therapeutic bath sessions. She basically changed a few details around, but ended up making the doctor and his practice easily identifiable, even reproducing exact lines of his speech that she had recorded. Things ended pretty poorly for Davis, especially when her publisher turned on her by enacting the warranties and indemnities clause to recoup some of the money it lost during the lawsuit. Read the article; it's interesting stuff, though I sadly can't get into the ethics of publishers turning on their authors in this particular entry. It just goes to show that you can't be too careful, even if the story you're writing has the word "FICTION" emblazoned on the front.

But even the most private individuals can sue you if they're identifiable as characters in your novel, and this is because of their right to privacy. What if a friend confides a particularly embarrassing or painful secret to you, and you think, wow, this would make a great dramatic twist in my new novel. So you insert a character with a painful secret into your novel. You changed the character's name and the fact that she lives in Brooklyn (your character now lives in Queens), but other than that, you couldn't change much else or the painful secret part wouldn't work. That's an invasion of privacy. The secret your friend told you was previously unknown, but now all your mutual friends have bought your novel and figured out who the character was. The secret also wasn't of general interest to the public, since it concerned a private, relatively unknown individual whose personal business was important to no one else. Just because your book carries that "This is a work of fiction... resemblance is purely coincidental" clause at the beginning (you know the one I'm talking about; pick up any novel and take a look at the copyright page) doesn't mean you're protected. The publisher puts that there to cover his bum on the assumption that by signing your contract, which included the warranties and indemnity clause, you verified that the material in the book wasn't going to, among other things, expose your friend's secrets under the guise of a "fictional" character. In this situation, looks like you're in a heap of cow dung.

Okay, then, you say. I'll just stick to writing about public figures in my novels since I can have a little more leniency with those. But just when you thought you were off the hook, here comes something else to worry about: the right of publicity. This is a person's exclusive right to use, or to prevent the use of, his or her name, likeness, or aspects of his/her persona for commercial gain (with "persona" here meaning aspects of a person's character perceived by others). It's sort of like the right of privacy but for better-known people. By using another person's persona or an aspect of it without authorization, you could be leaving yourself open for a right of publicity claim. Once again, there's no federal law governing this, so the way it's handled tends to change from state to state. A person can't sue for an invasion of right of publicity if the use of their name or likeness is cursory or if there's something newsworthy going on attached to this person that's of general interest. (There goes that First Amendment again.) But if the person's name or image is being used for commercial gain, like to sell a product or service, and the person didn't authorize it, then the trouble begins.

Like all other areas in publishing, this one's laden with gray. Use of a persona is allowed editorially: for use in the news, in a scholarly way, or for reasons of historical, cultural, educational, and/or public interest. Don't worry, fiction writers, you haven't been forgotten either: it's okay to an extent to use names or likenesses in fiction that incorporates real people. Basically, as long as the goal of a work is artistic or to inform the public of something that would interest them, rather than being solely for economic gain, it's generally permissible.

Oy vey, you say, and throw up your pen (hopefully not word processor) in despair. What can I write then, if I'm constantly afraid someone's going to sue me for something? The publishing scene may look even more discouraging now, or downright bleak, but take heart. There are things you can do to protect yourself. No method's foolproof, but here are some ways to reduce the risk.

Fact checking is invaluable. Get proof for everything you possibly can. You might think that New Yorker-style fact checking is extreme (Harold Ross had his fact checkers verifying the location of the Empire State Building), but in this lawsuit-happy era, it seems like you can never go too far to verify a fact. Also be aware that in libel cases, the amount of time a writer had before publication counts. The more time a writer had to fact check something, the more accountable he is. A newspaper writer is up against a daily deadline; a biographer often has months or even years to complete a project. The newspaper writer has far less time to fact check; thus, he would more likely get off the hook than would a book author.

To reiterate the importance of never assuming, here are some assumptions that can get writers into trouble: accusing someone of a crime without proof of conviction; associating someone with a group (especially an unsavory group like a cult) without proof of association; describing someone's incompetence instead of describing the situation; accusing someone of unchaste or sexually unscrupulous acts.

If you're in doubt about whether you should publish a particular story, consider it from an ethical standpoint. Is the subject a public figure or a private one? If the person is a private figure, consider whether his or her activities are of general interest to the public. If it's an older news story involving private figures, like a decades-old unsolved murder case, consider whether the story is still of interest to the public. If the story has been forgotten by the general public and is particularly scandalous, dredging it up again could be grounds for a suit. Make sure you fact check everything you can. Knowing that public records about the person and/or events you're describing are readily available, and using them, may make you less liable for libel.

If you're writing fiction and are basing a character on a real person, try to keep that character minor and use as few identifying details as possible so that the character can't be recognized as a real person. Change identifying details or mix up several real people's identifying characteristics. Or try sticking to using public figures, although they can claim that their right of publicity has been invaded. You can also stick to writing about a dead person, private or public, but be aware that if that person can be identified, you can be sued for mental distress. And also be aware that suits are on the rise involving similar names. So if you're going to write about a concierge who works at the Four Seasons named Larry who is a serial killer by night, you should check with the Four Seasons to be sure that such a person doesn't work there. Again, it's always best to cover your bum by checking your facts and being overly careful than to leave your bum exposed and ready for a good, swift kick.

Also know that many larger publishers have a legal department that will assist them in determining if any parts of your book could pose future problems. If you're working with a smaller publisher or are self-publishing, it might be worth your while to invest in the services of a lawyer to read your manuscript and identify any potential problem spots. For instance, a local publisher is planning to publish a fictional book by "Fake Steve Jobs" that is a spoof on the real Steve Jobs (Apple CEO) and his life. The book is so obviously a parody, and the material is fictionalized and marketed as such, so it got the legal okay. But if the book tried to pass itself off as nonfiction--say, if the cover said "Steve Jobs" instead of "Fake Steve Jobs" or if the book didn't brand itself as being fiction--well. Things would hit that proverbial fan.

Chances are, if you're writing about other people, you're going to say something that's going to offend somebody (which isn't always a bad thing). Make sure you're aware of the problems you could potentially be up against and use a little common sense to guide you during the writing process. If something feels like it might cause a problem, seek help from a professional (like a lawyer) before someone else decides to turn it into a problem. Yes, we live in a lawsuit-happy society, but we also happen to live in a country that values its free speech (though post-9/11 some may contest this) so proceed with caution but don't let the fear of a lawsuit keep you from proceeding at all.

BOOKS THAT ARE USEFUL:

How to Be Your Own Literary Agent, by Richard Curtis (again).

The Writer's Legal Companion, by Brad Bunnin and Peter Beren. One's a lawyer and the other works in the publishing biz. A dream team.

Literary Law Guide for Authors, by Tonya Marie Evans and Susan Borden Evans. A pair of attorneys spell everything out rather clearly. They even include a handy CD-ROM with copies of all the appropriate copyright forms and etc. that they refer to within the book that you can print out.

I've Got an Agent! Now What?

2007-08-05T13:29:00.001-04:00

My previous entry dealt with contracts and assumed that you were working directly with the publisher, sans literary agent. In this entry, I'll introduce you, briefly, to what a literary agent does and doesn't do. I won't, however, spend any time telling you how to get a literary agent to work with you. There are numerous books published and revised on the subject every year, along with guides such as Literary Market Place that are updated annually with details about publishers and agents. Also, I've never tried to get a literary agent for myself, so I'll spare you all the presumption of knowing what the hell I'm talking about in that arena.

A literary agent is someone who often has previously worked in publishing and thus has a great knowledge of both literary markets and the workings of the industry. An agent is an author's representative and acts as a liaison between author and publisher. Both parties stand to benefit from the agent. The publisher benefits because the agent acts almost as a screener, scouting for and determining what manuscripts are worth buying, saving the publisher time. In fact, the nature of the business is such that pretty much all major houses and many smaller ones now don't even bother looking for material themselves, instead relying on what they get from agents. The author benefits because the agent becomes his advocate, looking out for him and many times also being the only steady person during the whole transaction. Publishing has a rather rapidly spinning revolving door as people move on to other positions and companies, so an author may suddenly find his book "orphaned" at the publishing house, meaning that the editor or person responsible for it has left and the new person taking it on is probably not paying much attention to it. Having an agent helps because she will make sure to keep track of the book, often by pestering the publisher and the staffer's predecessor about it. An agent also often gives editorial advice to the author to help improve his manuscript and also helps the author develop new projects.

Both parties benefit from a literary agent's involvement because the agent handles the negotiation of the contract, which saves the publisher the hassle of dealing with an author's inexperience and saves the author from the potential of getting royally screwed due to ignorance. The agent also handles the money from advances and royalties and gives it to the author after taking her 15% commission first. And the agent is often well-connected to others to whom she can then sell sub rights. It's in the agent's best interest to sell as many rights as she can for the author, since she gets a cut of it all, so having an agent is really helpful, especially for inexperienced authors.

So let's say you've gone through the querying process and found an agent who wants to work you, Abby D. Agent. "Leave it to me, kid," she says knowingly, after showering you with glowing accolades about your manuscript masterpiece. "I'll make you a star."

"Great!" you say, enthused. You can hardly believe your luck! This person believes in you and your work and is going to help you sell it and, if not get rich off it, at least make enough extra bucks to afford going out to dinner once in a while or getting a new couch to replace the old one your cat peed on. "This all sounds great. Where do I sign?"

"Oh, there's nothing to sign," says Abby breezily. "We're all friends here. Besides, there'll be enough paperwork once I get you that nice publishing contract. Let's not kill anymore trees."

A little feeling of uneasiness settles over you, but what do you know about the pub biz? This must be how they do it. And the environment is a hot-button issue these days. Maybe saving trees is a good idea.

While some agents do operate under this no-contract policy, depending on how casually their offices are run, many do offer simple contracts or at least letters stating the terms of your working relationship with them. Even if you find an agent who doesn't seem to believe in adding more paper to her life, you should still get your agreement in writing. If your agent doesn't offer you a contract, suggest that one of you will write a letter or email outlining what the agent will do for you, how long the agent will try to sell your work for, how either of you can terminate the agreement, what happens if the agreement does get terminated, and how the agent gets paid and handles your money. When it comes to someone dealing with your intellectual property and eventually hopefully with your money, it's always wise to get it on paper.

Let's assume that you have convinced Abby Agent to draw up an agreement for the two of you to sign. Obviously a contract with an agent is not as in-depth or lengthy as a contract with a publisher (I'm starting to wonder if anything on Earth ever could be), but here are some of the basics it should cover.

A grant of authority and limits. This clause dictates the power that an agent does and doesn't have. For instance, Abby Agent may be the person responsible for negotiating and selling your rights, but you want to have some idea of what's going on. This clause would say that you want to see and approve of all deals and contracts rather than just letting Abby sign the contracts on your behalf. Let's face it: you may trust your agent with your life (and your rights), but you should still be the one to put pen to paper.

An agent's obligation. Naturally when you sign on to work with an agent, you are putting your trust in that agent to sell your rights, but you don't want to be waiting around forever. You also want some guarantee that the agent is working in your best interests. This clause usually includes phrases to the effect of the agent making her "best efforts" to sell your work and using all "commercially reasonable" means to get you a deal. The agent should submit to you all offers made on your work, even if she thinks they suck, so that the two of you can decide what's best. And your agent should keep you informed of all rejections and feedback, too, allowing you to see rejection letters if you request them and passing along comments editors have made that may help you improve your work. Your agent should work hard for you, but she can't work miracles, and you aren't her only client. Expect her to put in a very valiant effort, but don't expect her to move mountains. Expect regular communication, but don't expect daily hour-long chats. She's busy and should be using her time to sell your work, not counsel your every editorial move. However, if she seems like she's seriously slacking, puts you off, doesn't give you any time or advice, or is not upfront with you about things, it might be time to call it quits and move on. (See the length of relationship and termination clauses below.)

An author's obligation. Yes, you have an obligation to your agent, too. (What did you think, that contracts were a one-way street?) Many agents want their authors to enter into an exclusive agreement with them, meaning that while Abby's trying to sell your work you won't also have agent Betty trying to sell it too. Read this section carefully. Some agents want to represent all their authors' works, even works that the author wrote before working with that particular agent (this means retroactive commissions, which to me seems unfair, but you need to decide what you think is fair). Some agents want commission on every work their authors sell, called an "exclusive sale" arrangement, even if the author sells those works entirely on his own. (Again, you can decide if this is fair or not.) And some agents just want to opportunity to represent all their authors' future works and receive commissions from them. If you already have connections directly with editors at, say, magazines or newspapers and have sold or intend to continue selling works directly to these editors, consider whether giving your agent a commission on these works is worthwhile to you. On the other hand, if you don't already have connections with editors at periodicals but would like them so you can try your hand at the occasionally lucrative world of magazine writing, having an agent can be helpful as she can forge these connections for you, can handle contracts with the periodicals, and take care of hounding them for your money (after all, she wants her commission just as promptly as you want your payment). When it comes to this clause in an agency agreement, you need to consider how you want things handled. Personally I think it sucks for an agent to expect compensation for work she hasn't done for you, and if you think it sucks too then don't agree to it. It does seem ridiculous, but an agent's authors are her bread and butter, so she's going to try to exploit all of you as best she can.

Commissions and payments. Most agents nowadays charge a 15% commission on all money you receive from sales they make. Many times this royalty increases to 20% for the sale of sub rights because your agent is selling the work to another agent and the commission must be split. I'm putting these numbers out there so you understand that they're industry standard and are considered fair. Some agents also charge their authors for extraneous expenses: for instance, long-distance calls made on the author's behalf, excessive photocopying or mailing, etc. In publishing, it's typical for a publisher to issue payments and royalties directly to the agent and for the agent then to manage the author's accounts. It's a good idea to let your agent handle your accounts because she understands the intricately complicated web of royalties statements better than you, or even a rocket scientist, could. She'll take her commission out and then issue the remainder to you. Your contract should stipulate how much time you should expect to pass between her receiving the check and you receiving yours and any other pertinent financial information pertaining to your agreement (such as how agency expenses, if any, will be billed). Make sure the commissions structure here makes sense to you, especially that involving the employment of other agents to sell sub rights. If anything is unclear, ask. Don't take chances when it comes to your money and stay informed of what to expect.

Warranties and indemnities. This is sort of like that clause from the publishing contract, stating that you have the right to your work. It also protects the agent if you do something foolish, like sign two exclusive agency agreements simultaneously. You sign on thinking that the two never have to know about each other and that this just increases your chances of selling your work by doubling your work force. So let's say Abby sells your work to Pancake Press on Monday. You're elated. You decide to break things off with Betty. But before you can do, Betty calls you on Tuesday. "I just made an offer to Peacock Press, and they want to buy your work." Shit. Now what do you do? Two presses cannot simultaneously publish your work, so you're going to have to back down on one of the offers. But since Betty made good on her promise to sell your work, even if you decide to remain with Abby for the long haul, you still owe Betty her commission for selling your work. And Peacock Press could hold her liable for selling her a work she was no longer authorized to sell to you; since your contract with Betty also contained this clause, you are obligated to stand behind her in this situation. So, my advice is to do yourself a favor and never need to worry about these potential messes by sticking with one agent at a time. Polygamous relationships in publishing can often get very messy.

Length of relationship. Obviously, both you and your agent want a long, beautiful friendship. It works for you because you've got someone on your side to watch out for you, negotiate the best deals for you, and otherwise help usher you through what is hopefully a long and illustrious (or illustrious enough) publishing career. It works for your agent because she's got someone who will provide her with a steady enough source of income over the long term, from either your backlist items that continue to sell or from your new works (though publishing new works often revives the market for your older works). However, sometimes a relationship with an agent just doesn't seem meant to be; for whatever reason, she simply cannot sell your work. If this is the case, this clause will dictate the amount of time the agent will devote to trying to place your manuscript. Usually this term is a year. If after this year your agent hasn't been able to sell your work and she's exhausted all her avenues, it's probably time to call it quits: she wants to move on to clients whose work she can sell and you want to give it another go, either on your own or with another agent. A year may seem like forever, but remember that book publishing is a very hurry-up-and-wait kind of business, meaning that brokering deals can be very time-consuming. Give your agent at least this year, which is a reasonable amount of time, in which to sell your work.

Termination of agreement. Breaking up is hard to do. But it shouldn't be impossible. Barring the length of relationship clause, you and the agent should both have the freedom to end your relationship at any time for whatever reasons you may have. Maybe you just don't seem to get along; maybe she's lost interest in the kind of work you're producing or you think you could get better service from another agent you met at a cocktail party who seemed excited about your work and with whom you meshed well. So it's time to break up with your agent. This clause usually stipulates that either of you can terminate the agreement by putting the decision in writing and giving thirty to ninety days of notice. This amount of time is only fair to allow both of you to tie up loose ends and make the transition smooth. This clause will also indicate what will happen if the agent has sold some of your work and what will continue to happen regarding commissions. Perhaps your agent will continue to receive royalty payments for works she sold for you and will divvy out your share to you. If your parting with your agent is amicable, you may be okay with this, but if there's animosity there, you should consider having royalties paid to you (or your new agent) and then disbursing your agent's commission. Or your new agent may decide that she'll be the one to handle all royalties from past and future sales and their divvying up from here on out. Make sure you understand how commissions and royalties will continue to be handled if the two of you should split up because after all, money does cause the most grievances in relationships. Don't let it cause you angst in this one and get it all in writing.

The right to assign you to another agent. This clause is somewhat straightforward. Many agents work for agencies where there are other agents (sometimes a few, sometimes dozens depending on the size of the agency). This clause states that the agent has the right to transfer you to another agent of her choosing, typically within the same agency. If you're not comfortable with this idea and would prefer this not to happen, speak up and don't allow for this clause to appear. But if you're fine with transferring agents, just state under what terms it would acceptable to you: the agent must be at the same agency, or it must be an agent that you both mutually consent to. If this clause doesn't appear in your contract, ask your agent what her or her agency's policy is on the matter.

The right to represent your competition. You're a mystery writer, and mysteries are what Abby Agent sells best. It's a match made in heaven. But as you look through her client list, you realize that Abby's got quite a few other clients who write mysteries very similar to yours (say, involving telepathic animals or little old lady detectives). It's within her right to do so. By taking you on, Abby isn't going to forsake all these other writers who write similar subject matter to yours. In fact, it's to your benefit if she represents other authors who write the same sort of thing. It means she's had success selling work similar to yours, which means there's a market for it--which means your odds of a sale are that much better. Don't begrudge your agent her right to represent however many of whatever kind of client she wants.

The right to multiple agents. Some agents have relationships with sub rights agents and will thus handle these deals for you. But sometimes an agent doesn't want to deal with certain sub rights, like foreign sales or film sales. This clause will spell out if she's okay with you hiring these agents on your own. Be sure you understand how the commission structure works here; your agent will usually want a piece of the sub rights sale pie, no matter how small. It's wise either way to find out how your agent deals with sub rights sales before you enter into an agreement with her since sub rights can often be quite lucrative.

As you can see, there's actually quite a lot more that goes into an agreement with an agent than the blind faith that she'll sell your work. This is why it's wise to get an agreement with your agent, even if it's just a letter laying all these things out. If any of these parts are missing, talk to her about it and insert them if necessary. Understanding how the relationship works before you even begin will save both of you a lot of time, confusion, and grief later on.

For more information on literary agents (let's face it, if you want to get one, inform yourself thoroughly of what they do and what they want from you), try some of these books:

Literary Agents: A Writer's Introduction, by John F. Baker. This is a great book featuring profiles of many leading industry agents reflecting on the business and offering tips for writers as to how to get and keep an agent.

Mastering the Business of Writing and How to Be Your Own Literary Agent, by Richard Curtis. Curtis is a big-name agent who's been at it a long time and he's got a lot of good things to say. Any work by him is quite helpful, and it helps that his style of writing has some humor sprinkled throughout.

How to Get a Literary Agent, by Michael Larsen. This book has tips on how to get an agent and keep them written in a friendly, accessible style.

And for listings of literary agents, try the annual literary agent guide published by Writers Digest Books, Jeff Herman's annual guide to publishers, editors, and agents, or the annual edition of Literary Market Place (check your local library for this one, it's pricey and of an unwieldy size).

The Anatomy of a Publishing Contract

2007-08-02T16:33:00.001-04:00

So I’ve been absent from the blogosphere for a few days, mostly because I’ve been poring over books about publishing and agency contracts, the role of literary agents, and the ways different rights are bought and sold in the publishing universe (which is a whole other planet as far as I’m concerned), and there’s been so much to digest that I’ve only just come up for air. And now, fellow readers, rejoice! For here I am to share it all with you.

But before I start, a disclaimer: don’t consider any of this to be legal advice. If you actually have a contract and have questions about it, certainly use the information I’m providing as a starting point for deciphering what all the different clauses mean, but if you have any questions, doubts, or concerns, or need help negotiating, turn to a lawyer who’s got publishing experience, or try to get an agent to work with you. (That’s me covering my arse so I don’t get in trouble.)

And now: the anatomy of a publishing contract.

What is a publishing contract, anyway?
To understand what goes into a publishing contract (and why each one seemingly uses up half a ream of paper), one must first understand the nature of the publishing industry—or, as my old coworker used to call it with a snarl on her face, the “pub biz.” Some people have compared publishing to a casino, involving books. I tend to agree, because it’s all a gamble.

As genteel or artistic as it may seem, publishing is, bottom line, a business. And like any other business, it involves the exchange of goods for money. But unlike some other businesses, publishing is a highly speculative business. A publisher may be pretty good at predicting how certain books will do on the market, but it’s an imperfect science. “Guaranteed” best-sellers may fall flat on their faces while novels of a literary bent may suddenly catch on, thanks to a number of factors that are hard to control: word of mouth, intriguing or timely subject matter, a hot new trend (like ethnic lit or chick lit), a memorable title, Oprah. So like any business based on speculation, publishing is a risky endeavor.

Think about it. Books aren’t a necessity, like toothpaste or gasoline. Books are more of a luxury commodity, something purchased to enhance a buyer’s life by providing extra information or offering entertainment. This means books are purchased with expendable entertainment income and are not necessarily factored into people’s budgets. So when a publisher is determining whether or not your book deserves to be published by their company, they’re not necessarily evaluating the merit or quality of your book, or at least that’s not the most important aspect they’re looking at. They’re evaluating its salability, its potential to make a buyer look at it and say, “Yes, this is worth spending between twelve to thirty dollars of my expendable income on.”

So when a publisher draws up a contract with a writer, they’re making an investment that they hope will be profitable at a later date. Buy low, sell high, hope to earn back the initial investment and some profit. This is why the first version of a publishing contract has terms that generally tend to financially benefit the publisher at the writer’s expense.

Every publisher is different and each one has a unique contract, but they all include the same basic information:
• which parties are entering into the agreement (the author[s] and publisher);
• when the contract begins and how long it lasts;
• what rights are transferred from author to publisher;
• what compensation the author and publisher will receive when and under what conditions;
• when rights revert back to the author;
• what happens if there are legal problems (I’ll go further into the sorts of legal issues writers could face in a future entry).

Of course, you’ll probably see even more clauses in your contract, but you should be sure that your contract has all these clauses, since they cover essentially all the steps of the publishing business.

Someone’s buying my book! Now what?
After months, or years, of toil, a publisher has finally agreed to buy your book. Your excitement is palpable. You get a copy of the contract in the mail or via email or fax. You’re so excited to get the process started and see your words bound in a book that you sign on the lines and send the contract back to the publisher with hardly a glance at the terms and conditions therein.

If you do this, I’ll be perfectly honest: you deserve a good flogging, preferably with a massively heavy copy of the OED. Common sense dictates that you read something before you sign it or else the only person to blame when you get screwed (because trust me, you will get screwed) is yourself.

Perhaps as a first-time published author you don’t think you’ll understand the legalese. Or perhaps you think that you have to take whatever they offer you or they’ll withdraw the offer and move on to another author desperate to be published. Or maybe you think you have to act fast or they’ll lose interest. None of this is true. Publishers are used to writers (or their agents) negotiating with them to get a mutually beneficial (or at least more mutually beneficial) deal. Publishers are okay with you taking a day or two or more to digest everything, figure it out, get help if you need it. Things don’t happen overnight in book publishing; it may take a year or two for your book to even appear on shelves. Be smart and take the extra time to determine what you’re being offered and what you can do to be sure you don’t get screwed. Don’t sign anything until you’re at least satisfied that you’ve done your best to get what you wanted.

Clauses, clauses, clauses! What do they all mean?
A publishing contract will begin with an introductory clause that lays out the parties involved in the contract (the author and the publisher) and what the contract is in regards to (the manuscript). It also lays out the date when the contract comes into effect. There’s also usually a brief description of the work the author’s submitting. Sometimes this is vague to the point of being nearly indecipherable—just a title and then a few words of description: “Eighteen Wheels: A novel about truckers” or “Finding the Light: How to Rewire a Lamp Yourself—an instructional guide.” You may want to flesh this description out a bit on the contract (or on an attached page that you can refer to as a rider) so that it’s more specific what you understand that the publisher expects from you. “Eighteen Wheels: A novel of approximately 70,000 words about a group of truckers and their adventures traveling across America” or “Finding the Light: How to Rewire a Lamp Yourself—an instructional guide of approximately 50,000 words including directions for working with wiring and projects, along with illustrations and photos.” Inserting this little bit of extra information will give you a little peace of mind, especially considering the next clause that’s included in a publishing contract: delivery and acceptance of the manuscript.

The delivery and acceptance clause gives the date when the publisher expects you to turn in the completed manuscript of your project, and it often also spells out in what format they wish to receive it. If you’re writing fiction, you most likely have the manuscript completed and perhaps only have a few tweaks or formatting issues to resolve before turning the book in, but nonfiction books are often sold on the proposal and one or two sample chapters alone, so the due date is especially important. If you feel that you simply can’t turn in the manuscript by the publisher-assigned date, negotiate it, don’t just ignore it, as turning your work in late can render you in breach of contract.

Also be certain to pay attention to the terms of acceptance included in this clause. It should spell out what you’re expected to turn in and what happens if the publisher is unhappy with the work. Often the wording here is vague, merely saying that the manuscript should be “satisfactory” to the publisher or the publisher can drop the project. But that means different things to different people, so this phrase is a sort of “get-out-of-contract-free” card for the publisher. Make sure you discuss what “satisfactory” (or any other sort of vague wording) means with your editor so that you have an idea of what’s expected from you. You should add in more specific wording as to what “satisfactory” means. And you should add in a phrase saying that if the manuscript isn’t up to the publisher’s standards that you’ll then get a certain amount of time to revise the manuscript to their recommendations.

You'll then find a grant of rights clause listing the rights the author is giving the publisher, the territory in which the rights apply (for instance, the United States and Canada), the amount of time the contract will remain in effect. Basically, what this clause means is that you are transferring ownership of whatever rights are listed to the publisher to do with as he pleases while the agreement is valid. This is where I'm asking you to dredge your memory a bit. Remember when I listed the "bundle of rights" that are yours and are protected by copyright? Here's where they come into play. When you first examine your rights clause, you'll find that your publisher probably wants all of them, and that's not necessarily in your favor. Naturally you want your publisher to have the rights to duplicate and sell your work, otherwise known as primary rights; that's the whole reason you entered into this arrangement in the first place. (Most publishers, however, will allow you to keep your name next to the copyright notice in the front of the book; they just want the right to publish the book, so they don't care if you yourself appear as the copyright owner.) But do you want your publisher to take on ownership of your subsidiary rights (otherwise known as sub rights) to create derivative works, such as screenplays, foreign editions, translations, and audio books? It's a tough call.

Sub rights are a sort of inexact science (what a surprise). Sometimes it's to your benefit to allow your publisher to own and sell these rights; your publisher may already have well-established connections with publishers of mass market paperbacks who'd be interested in printing an edition, or with foreign publishers eager for American books. Or perhaps they're good at getting audio book deals for their authors. If your publisher is a larger house with a separate sub rights department or has a good past track record of successfully selling sub rights for many of their authors, and you also don't have an agent who will help you in the sale of these sub rights (more on this in the agents entry), it's in your best interest to allow your publisher to sell these rights on your behalf and split the profits with you. On the other hand, if you're publishing with a small house that lacks a sub rights department and that doesn't seem to have much clout when it comes to sub rights sales, you're probably better off retaining these rights for yourself and trying to sell them on your own. Think of it this way: why would you give away something that could potentially be valuable to you to another person who's just going to let that potentially valuable thing sit on a shelf and collect dust? You may not make any more headway selling these rights than your publisher would, but at least you retain them so that you have the option to do with them as you please.

Sub rights can be incredibly profitable--sometimes more so than the original book--which is why your publisher, and in turn you, should be so interested in keeping as many of them as possible. These have thus become a big negotiating point. When negotiating with your publisher over sub rights, keep in mind that most publishers tend to split the proceeds from sub rights sales with authors in percentages that favor the author, by 5 or 10 percent or more. Negotiate to get the best deal for you. Determine which rights you want to keep, if any, and which you want your publisher to have. Also decide what percentage of profit will make it worth your while to let your publisher have them. You may also want to add a phrase such as, "All rights not expressly granted to the publisher are hereby reserved by the author." This gets a little knit picky, but it's worthwhile to include. “Rights not expressly granted” could include the right to create and use your name as a website domain, the right to sell author copies, and so on. You can also limit the rights you give your publisher by language or territory, and you can limit the amount of time that the publisher can own specific rights. For instance, if certain rights haven't been sold within 2 or 3 years, you can stipulate that they then automatically revert to you. When it comes to deciding what you want to do with your sub rights, it depends on what kind of potential you and your publisher think the book has for being converted into other formats. Does your how-to book lend itself to a home improvement television series? Does your novel have the potential to be a blockbuster on the big screen? Consider what sort of “life” your manuscript has beyond the bookshelf to determine what sub rights negotiations will be best for you.

Then we come to the lovely advance and royalties clause that determines how and when you’ll get paid. An advance is just what it sounds like: an advanced payment from the publisher paid out before your book is even published. Royalties are a percentage of money that you earn from the sale of each book.

An advance is paid out against royalties—in essence it’s a loan from your publisher. Let’s say you are paid a $5,000 advance against royalties. This means that you get the $5,000 in advance of publication of your book. When your book starts selling, the first $5,000 of royalties you earn won’t go to you; it goes back to your publisher. Any royalties you earn after $5,000 will then be paid to you. If you earn more than $5,000 in royalties, you are said to have earned out your advance, a joyous day in the life of your publisher because many books nowadays don’t even earn that much back.

Advances are usually paid out in 2 or 3 installments: when the contract is signed, when the manuscript is submitted, and when the book is published. Be sure to read your contract carefully to determine whether your publisher expects you to pay back any portions of your advance if your manuscript is rejected, as some publishers expect this.

Royalties are a percentage of money you earn on every book sold. They are often based on an escalating scale—for instance, you might earn 6% royalties on the first 5,000 copies sold, 8% on copies from 5,001 to 10,000, and 10% on copies 10,001 and up. Royalty percentages tend to be lower for paperbacks and higher for hardcovers due to differences in cover price (and thus profitability) of each. Some publishers pay royalties based on the cover price, but this is becoming increasingly rare. Due to rising publishing, warehousing, and distribution costs and the larger discounts being given to booksellers, publishers are more commonly basing royalties on the net profits received by the publisher. Make sure you understand which of these systems your publisher is basing your royalties on and ask how much of a discount they give booksellers and what percentage of the cover price is given to distributors so you’ll have a better idea of how much income to expect from your royalties. You should also find out if nontraditional sales—such as bulk sales to organizations or sales to libraries—are based on a different royalty scale.

If you can, negotiate with your publisher to get a bonus structure if your book achieves bestseller status or wins a literary prize, since these things usually mean increased book sales and subsequently increased profits for the publisher. And be sure to check when you’ll be paid your royalties. Publishers usually pay out royalties in installments during the year, sometimes quarterly, sometimes only once a year.

And what about if you’re using copyrighted material in your manuscript? For instance, each chapter of your novel starts with a song lyric, or you’re using reprints of photographs in your travel guidebook. You’ll need to get permission for these materials. Note the use of the word “you.” Most publishers require the author to go about securing the permissions before publication, and this can be a lengthy and sometimes expensive process. However, if the copyrighted material is something the publisher wants added in (say, additional photos for your guidebook), or if you have to secure a lot of permissions, negotiate with the publisher for assistance, either financial or just help in getting the sources to give permission. Sometimes the clout of the publisher can help you get permission more quickly. But be sure that if getting permission for any material will be important to your book that you work out the details with your publisher.

Beware the option/first right of refusal clause. This clause lets your publisher look at your next manuscript before anyone else does, thus giving them the first chance to either accept or reject it. While this isn’t so bad, be sure to examine the terms surrounding this. Some publishers may say that acceptance of your next manuscript carries with it the same terms as the contract you’re currently signing. This is a lousy deal. By the time your publisher takes on your next book, you’re already an established author and they already have an idea of how your book sold. If your book sold modestly, you may be offered a similar advance and royalty scale as for your first book. But if your book sold very well and had subsequent printings, proving that you’re a valuable commodity to the publisher, it would be pretty crappy to get the same paltry advance and low royalty scale you got the first time around. So be sure that you indicate in your options clause that if the publisher does choose to take on your next project that the terms will be negotiated at the time of acceptance, thereby preventing you from being locked into a contract that could screw you financially.

And be sure that your option clause indicates deadlines for how long your publisher has with your next manuscript—say, 30 days or 90 days. You don’t want to be kept waiting indefinitely for your publisher to make a decision; it’s valuable time you could be using to shop the manuscript around to someone else if your publisher turns it down.

Your contract will also contain a warranties and indemnities clause. This clause basically states that by signing the contract, you verify that you are the sole author of the work in question, that the work doesn’t infringe any copyrights, that it doesn’t contain any deliberately harmful information (recipes containing mushrooms you know are poisonous, for instance), and that it’s free of violations of privacy, defamation, libel, and other potential legal problems. It also states that the author indemnifies the publisher and holds them harmless if legal actions are brought against the book. Although publishers will often help authors somewhat if there are legal problems or will cover authors under the insurance they take out for these very purposes. Sometimes publishers will withhold an author’s royalties towards covering legal fees. So try to cover your bum and be sure your manuscript is as free of potential legal problems as possible. (A little more on these issues later.)

No writer ever wants to think about their book being out of print, but as depressing as the topic may be, it’s important to consider before signing the contract. You should know when a book is considered out of print by your publisher because you want to be sure your rights revert back to you.

One of the most depressing aspects of the publishing industry is how quickly books go out of print. Some cheeses have a longer shelf life than do books. In an industry where the shelf life of a book (the time during which the book is available on shelves in major bookstores) is a year or less, it’s important to know what happens when your book is considered out of print (or OOP in pub biz lingo).

Make sure there’s language in your contract that allows you to get your rights back after your book’s been OOP after a certain amount of time. You should be sure your contract states that your book is considered out of print after a certain amount of time when it’s no longer readily available in bookstores, or after it’s no longer earning a minimal amount of royalties per year.

Obviously this list isn’t exhaustive, because there are so many clauses that make up a publishing contract, but I wanted to try to cover some of the clauses covering rights and payments that can cause writers confusion and angst. I’ll be listing some books soon that list more detailed information on all the parts of a publishing contract that you should use to better familiarize yourself with everything that goes into this complicated—but no longer confusing, hopefully—document.

You've Finished the Next Great American Novel... Now What?

2007-07-25T16:54:00.002-04:00

So far I’ve covered a heck of a lot about copyright—the history of it, the extensions and the infringements, the fair use and the public domain. But how does this all apply to you, dear reader, in real life? (With “you” here being all my fellow authors reading my blog.)

As a writer, you are, of course, completely immersed in the world you’re creating on the page. You’re thinking about plot points and well-crafted paragraphs. Your words sing on the page and your brain tingles. This is the life! You’re writing, creating! What could be better? In these moments, the furthest thing from your creative mind is your business mind—that part of your brain that reminds you to pay bills on time and warns you not to eat a second piece of cake. But once the ink has dried on the page (or the cursor has blinked after the last word), what comes next?

Even though writers tend to be highly creative and often artistic people, successful writers must learn to be rational, savvy businesspeople too. The whole purpose of copyright is so writers can make money from their creations, and if you’re still reading this blog, I assume you’re no different. Sure, there’s an immeasurable glory that comes with setting your words on a page knowing that they’re out there for all to see. Maybe you don’t care about the associated financial opportunities. Fine. But after all the sweat and love you poured into your manuscript, you should at least care enough about it to protect it. Wouldn’t it suck to suddenly see one of the stories from your short story collection published in a magazine that never paid you a dime for using your work? So it’s important to know how to protect yourself and your work.

To protect yourself, you should make sure to copyright your work. Your work is automatically considered copyrighted once it’s on the page or screen (in other words, in a physical format), so let the world know it. It’s as simple as putting your name, the year of completion (for unpublished works), and the word “copyright” or the symbol © (a “c” in a circle) somewhere on the work.

You should consider adding “All rights reserved” to your unpublished work’s copyright notice to indicate that you still own the complete bundle of rights that you’re entitled to as a copyright owner. These rights are:
• Reproduction of the work (making copies)
• Creation of derivative works based on the original (such as a screenplay version of a novel)
• Distribution of copies to the public (publishing and selling your book)
• Public performance of the work (such as a reading)
• Public display of the work (seems to apply more to visual art)
• Public performance of the work via digital audio transmission (a fancy term for sound recordings)

Don’t shove this list too far into the back of your mind, as we’ll be referring to this bundle of rights again in the near future.

Remember also that your copyright isn’t international—it’s only valid in the U.S., though many countries will offer some protection from infringement thanks to all those international copyright conventions and treaties (remember good old Berne?).

Although registering your copyright with the Copyright Office is no longer required in the United States, it’s still a wise thing to do. As I discussed in earlier entries, unregistered copyrights don’t get the same level of protection if infringement occurs as do registered copyrights. With the rise of information technologies that facilitate the duplication and sharing of information, it’s wise to be protected.

How do you register your copyright? All the information for registering your copyright can be found here. The site includes information on the forms you need to fill out, how to pay the fee, and how to submit the copy or copies of your work that are part of the application. As of today, it’ll cost you $45, but it’s money well spent. DON’T assume that mailing a copy of the manuscript for yourself and leaving it in an unopened envelope, known as poor man’s copyright, will hold up if you ever have an infringement problem. You’ll be a far poorer man if you never registered your copyright and can’t recoup legal fees in an infringement case. So DO be sure to register it with the Copyright Office.

The Copyright Office receives over 600,000 copyright applications a year, so don’t expect them to contact you unless there is a problem or they need more information. You won’t get any sort of confirmation that they’ve received your application, but once it’s been accepted and processed, they will send you a registration certificate.

What if you want to register your copyright under a pen name? Lots of people do so to protect their identities. Perhaps you’re a mathematician who wants to start writing sci-fi. Or you’re well-known as a mystery writer but you want to try your hand at romance. You can go about it in a couple of different ways. You can either register using your real name on the form as the author and then indicating your pseudonym, or you can register only under your pen name. (More detailed instructions are available on Form TX, which is the copyright registration form that’s available on the Copyright Office website linked above.) If you take this latter route, be aware that you may encounter problems concerning proof of ownership, so you should consult an attorney for advice before taking this route.

If you are published and work with an agent, you shouldn’t run into problems concerning payment, since the agent receives your royalty checks from the publisher and then issues you your money minus their commission. But if you work directly with a publisher, you can either reveal your identity but ask that they keep it secret or you can keep your identity a secret and make arrangements with your bank regarding checks made out to your pen name. We’ll talk more about agents and royalties soon, but since we were on the subject of copyright registration, I thought I’d throw this information in there.

Next time we’ll explore the publishing contract. Pages and pages of legalese? What’s a writer to do? I’ll try to help decipher what typically goes into a publishing contract and what it all means.

Accio Case Studies

2007-07-18T11:22:00.002-04:00

As my studies turn more towards how copyright and contracts affect authors, I'll also be looking at cases in the world of publishing embroiled in legal issues. One of the biggest and most interesting that I can think of is Harry Potter. With the seventh book conveniently being released this Saturday and each installment of the series cloaked in security to prevent information leaks, the news is currently filled with reports of leaks being shared online. What happens to the people who leak information? What sorts of security systems are in place? Who is J.K. Rowling suing? What's the big deal? Love Harry or hate him, you have to admit that this book series is one of the biggest phenomena in publishing and so there's lots of juicy stuff surrounding the series that makes perfect fodder for my studies.

I also wanted to know if there are any legal cases in publishing that you'd be interested in reading more about that I could research in addition to the Boy Wizard. If so, let me know. Suggestions are most welcome; just leave me a comment.

Proponents and Opponents to the CTEA, and Changes to CopyRighteous

2007-07-16T21:51:00.001-04:00

As with any worthwhile cause/fight, the CTEA has those who support it and those who oppose it. And when it comes to public domain, people who are somehow invested in intellectual property get pretty passionate.

Supporters of the CTEA were, unsurprisingly, copyright holders, especially entertainment corporations like Disney and artist estates. (Some people even called the CTEA the "Mickey Mouse Act" because Disney wanted to prevent old Mickey Mouse cartoons from becoming public domain works.) Opponents to the CTEA included libraries, scholars, researchers, and educators.

In the previous entry, I went over some of the reasons why Congress passed the CTEA. These were all reasons the proponents of the CTEA agreed with. If their creations (or their parents' or grandparents' creations or their corporations creations) were permitted to go into the public domain, the proponents would no longer benefit financially from them. Some proponents also argued that if these works were allowed to go into the public domain that they'd be converted from their original purpose into something perverse or unrecognizable. So in addition to the benefits of exploitation, the proponents wanted to maintain creative control over these copyrighted works.

Opponents argued that the continual lengthening of copyright terms meant that there was no limit to the time frame Congress could grant to copyright holders and their estates. The longer these terms became, opponents argued, the closer the U.S. slipped to perpetual copyright--something that would eliminate the addition of new works to the public domain entirely. Opponents also argued that the majority of copyrighted works were only profitable the first few years after they were created, and then either went out of print or otherwise became unprofitable. By extending the terms of copyright, these works were being kept out of the public domain--where they could potentially be discovered by others--for a longer period of time. Due to this limited period of profitability for most copyrighted works, opponents argued, there was little economic incentive for most people to have such a long copyright term. It only really made sense for corporations and franchises and for those wildly successful artistic works that are few and far between.

But the public domain doesn't encourage the creation of new works, argued CTEA proponents. The incentive to create new works lay in the fact that copyright protected the author's work (and paid off for the author's descendants) in the event that the work did become financially successful.

Opponents countered by saying that the public domain needed to be constantly replenished in order for artistic creation to continually flourish. Artists needed to be able to draw on previous works without fear of infringement. Besides, said opponents to CTEA, preventing works from going into the public domain is harmful because it prevents access to the many intellectual property works that are not famous or commercially exploited and that are not available for the public to access and use due to the extended copyright. Sometimes the copyright holders of these works die without an estate, or forget they even own a copyright, or just disappear. And many of these people's works become what is known as orphan works--works that are no longer in print or easily accessible to the public but that, due to copyright terms and extensions, aren't due to be in the public domain for who knows how long because no one knows if the holder is alive or dead. Orphan books are a fascinating chapter of copyright that I do hope I can explore more deeply in the future.

Another reason CTEA opponents clamored against it is that evolving technologies like the Internet and other forms of digital media mean that there are many more avenues for people to access intellectual property. Having a bigger public domain means that more material would be available to more people. But proponents of CTEA want to exploit these new media as new revenue streams.

Constitutional scholar Lawrence Lessig and electronic publisher Eric Eldred took the case that copyright extension was unconstitutional to the Supreme Court in Eldred v. Ashcroft. You can read more about the case here and an article by Lawrence Lessig here that explain more about it. Also good to read is the following article debunking the "myth" of public domain. (Be forwarned: it's long. Really long. And it has many footnotes. I wish I could share my humorous comments that I made on it throughout, but I have no idea how I'd upload a PDF on here.)

I honestly have much more to say about public domain and my thoughts on it. I believe that the public domain is a good thing, and I believe that having access to works such as orphan works is vitally important. I believe that evolving technologies are making the sharing of information so easy that to deprive people of works they should be able to access but can't is a detriment to society. But I also believe that the creators of intellectual property should have a right to benefit from their creations, and to allow their next of kin to benefit from them as well. So I hope that copyright terms are not extended again, because with people's longer life spans, that means that it will take even longer for works to reach the public domain. I am also glad for things like Creative Commons, which allows people to choose how much copyright they want to keep and to what degree they want to protect their work.

Clearly, there's much more to say, and I do hope to carry on this discussion about Creative Commons, orphan books, and online publishing and cataloging projects like Google Books. But I've actually decided to take this project in a different direction for the duration of the semester, and I hope you'll all join me for the ride.

For the remainder of my project, I've chosen to focus on how copyright affects authors. It's all fine and good to talk about all of this stuff theoretically (which I've been doing for the most part until now), but now I'd like to apply it in a very real context that is relevant to my career choice of publishing and that also applies to many of my readers and colleagues, who are authors or involved with authors themselves. I'll be examining some cases in publishing involving writers' rights issues and I'll be looking at copyright issues in the context of author contracts. I'll also take a look at subsidiary rights. Basically it'll be a look at the legal process that goes into making a book and the ecconomics of copyright. So my hope is that this will serve as a sort of go-to guide for people who want to know more about their rights as writers.

Once the project ends and I've completed this leg of it, I'll probably continue to read and post about some of the other issues I mentioned above, because they really do interest me, so I hope you'll all stay tuned...

So Why Extend Copyright Terms Anyway?

2007-07-11T17:01:00.001-04:00

I’ve been absent from the blogosphere for the past week because I was on vacation, attending to birthdays and parties and weddings (oh my!), but during that whole time I found myself thinking and reading about public domain. Really! This week I’m playing catch up and will be posting entries more frequently.

Ah, public domain. There’s so much to say—so much so that I feel like I don’t even know where to begin. I know I outlined what it is in my previous entry and I touched upon the Copyright Term Extension Act (from here on out referred to as CTEA). But boy oh boy did that Sonny Bono ever open up a can of worms.

The CTEA is called the Sonny Bono Act because Congressman Bono was a big proponent and sponsor of extending the terms of copyright. In fact, his wife and congressional successor, Mary Bono, is cited as saying that Sonny wanted copyright terms to last “forever”—terms that would violate the Constitution, which only allows copyrights to exist for a limited amount of time. The CTEA extended the terms of copyright to life of the author plus 70 years (so they added 20 years to the already existing 50-year term) and they also retroactively applied copyright to things that would have gone into the public domain. Of course this pissed off a lot of people. Even though the Constitution gave Congress the power to extend the terms of copyright (as long as the duration of the term was “limited”), there were many people who were against this, for a variety of reasons. And of course there were many people who were strongly for the lengthening of these terms—mainly copyright holders, media conglomerates, and the descendants of successful creators. But before we look at these folks and their points of view, let’s examine why Congress extended copyright terms in the first place.

The United States wanted to match the European Union’s copyright terms. This wasn’t just a case of competition. American authors wouldn’t be protected by the European copyright terms of life plus 70 unless the American copyright terms matched. Plus, the United States has become a major exporter of copyrighted material, so Congress figured the United States should lead rather than follow when it came to copyright terms. It would also allow for more timely collection of payments owed to the United States for its exported copyrighted materials.

The United States also wanted to encourage further investments in existing copyrighted works. How does one further invest in an already existing work? Converting things into new formats. Think of all the movies that existed before the advent of the DVD player. A lot of those movies that were previously only available on VHS are now also available on DVD (and other forms of media that I probably don’t even know exist because I’m a technological troglodyte). That’s a further investment. Thus Congress was embracing the fact that the advent of new technologies meant new opportunities for the exploitation of existing copyrighted materials.

Congress also wanted to be sure that the descendants of creators got their fair share of profits from a copyrighted work. Since people now have longer life expectancies, Congress said, it only made sense to extend the terms of copyright so that the children and grandchildren of authors and artists could continue to earn revenues.

Congress also believed that extending the terms of copyright would encourage the creation of new works. The reasoning for this one hinges on the previous point of providing for one’s descendants. Artistic creators testified before Congress saying that knowing that the profits from their works would be available for a longer period of time to their next of kin would give them added incentive to create further artistic works. Knowing that a creator could benefit from his or her creation for a longer period of time would encourage more people to be creators, Congress reasoned, and thus the arts and sciences would progress. The extended term of copyright protection would thus encourage the creation of more works than would otherwise be created, and this would thus lead to an increased number of works that would eventually land in the public domain when the copyrights expired.

Since the Constitution never specifies the maximum duration of copyright term, simply that the term must be “limited” (that is, finite), in theory Congress could continually extend the length of copyright duration so that works take centuries to reach the public domain. And herein lies the problem that has raised a rallying cry from opponents—something we’ll cover next time when we examine the pros and cons of the CTEA and how it affects the public domain.

USEFUL LINKS
A site all about copyright extension: http://www.copyrightextension.com/
The Senate Report 104-315 CTEA (if you really want to read the whole thing…): http://thomas.loc.gov/cgi-bin/cpquery/R?cp104:FLD010:@1(sr315)

Public Domain: What Is It?

2007-06-28T12:05:00.001-04:00

Public domain. The term makes me think of a sprawling public space, like Boston Common, except instead of being covered in grass, dog poo, and panhandlers, it’s covered in ideas. Piles of books, stacks of DVDs, painted canvases spreading as far as the eye can see, all for the taking. And in essence, this image is a somewhat accurate manifestation of what public domain actually is.

So what is it? I like to think of it as the happy hunting ground where intellectual property goes after its copyright has expired. But instead of the intellectual properties going there to die, they are instead experiencing a sort of rebirth—a second life. Because intellectual property that’s in the public domain is available for anyone to use, in any capacity, with no infringement repercussions. And works that have entered the public domain can’t be copyrighted again, either. So it’s all there for the taking.

As a lover of all things literary, I find the concept of public domain fascinating. I just wish there were a better term for it. For some reason, the word “public” conjures images of dilapidated facilities that have grown shabby after years of use by the masses, something that has been devalued due to overuse. Really public domain is a hugely important thing. If the copyright on intellectual property never expired, the copyright owners and their estates would basically have a monopoly of control on that piece of work, which could potentially limit or eliminate the public’s access to it. Imagine if Shakespeare’s plays were under copyright, and his descendants charged exorbitant sums for anyone to publish or perform his plays. How many less people would know and appreciate his works? Think of all the different editions of Shakespeare’s plays currently available, and all the times his plays are performed around the world. How would this be possible if his work were protected by a copyright that never expired?

The duration of copyright has changed throughout the years, progressively becoming a longer and longer term. Currently in the U.S., the terms of copyright protection are life of the author plus 70 years (for most works, but exceptions include work-for-hire, anonymous/pseudonymous works, and works by corporate entities*), and this is the same for Berne Convention countries. Those plus-70 years alone are a pretty long time, let alone the addition of however many years the author is alive. The current terms of copyright also mean that a person needs to know a little basic arithmetic in order to determine when a work’s copyright has expired and it has become public domain. It all comes back to Sonny Bono (yes, that Sonny Bono) and Mickey Mouse.

The Sonny Bono Copyright Extension Act of 1998 warrants its own entry exploring the pros and cons of its passage, as it has raised a great deal of debate about the nature of copyright and the constitutionality of extending copyright. For now, I’ll just say that it’s the act responsible for extending copyright to life plus 70 years for post-1978 works. Works published before 1978 also received a second renewal term of 67 years, up from the previous 28 years, and the renewal became automatic. It’s all pretty confusing to figure out when what expires and how long something is protected, so here’s a breakdown for works published in the U.S. (This confusion, of course, is somewhat of a given since as we’ve already learned, nothing involving copyright is ever simple.)

Works are in the public domain if they were:
• published before 1923
• published between 1923 and 1978 without a copyright notice
• published between 1978 and March 1, 1989 without a notice and without subsequent registration
• published between 1923 and 1963 with notice but the copyright was not renewed

Works are protected for 95 years after the publication date if they were:
• published between 1923 without notice but the copyright was renewed

Works are protected for life of the author plus 70 years if they were:
• published between 1978 and March 1, 1989 without notice but with subsequent registration
• published between 1964 and 1978 with notice
• published between 1978 and March 1, 1989 with notice
• published after March 1, 1989 with no conditions necessary

So that’s a basic rundown of what public domain is and how to figure out when a work’s copyright expires. In my next entry, I’ll talk about the proponents and opponents and pros and cons of the Copyright Term Extension Act (CTEA).

*COPYRIGHT EXCEPTIONS
Works for hire, works held by corporate entities, works under a pseudonym or published anonymously: term of copyright is 95 years from date of first publication or 120 years from date of creation, whichever comes first.

FOR FURTHER READING
Complete Copyright: An Everyday Guide for Librarians by Carrie Russell. This book is awesome; it explains everything in plain language, has lots of sidebars of information, and it also includes all these anecdotes about a group of librarians and their copyright woes.
The Sonny Bono Copyright Term Extension Act: http://www.copyrightextension.com/page01.html

Five to Ten and 100K: Copyright Infringement

2007-06-26T17:26:00.001-04:00

My friend Chris asked in an earlier entry’s comments section what sorts of punishments are doled out for copyright infringers. Like all other things copyright-related, charges of infringement are tinged with gray.

In the easiest cases, it’s nearly black and white: a creator who holds a copyright can point to another person who has clearly stolen his work, line for line, and who has passed it off as his own or used it for personal or financial gain. When copyright was in its infancy, this was the only way that a case for infringement could be brought to court: if an exact replica had been made. This overly simplified take was soon outgrown by the burgeoning creative marketplace, and rulings in infringement suits began to lean more heavily on intuition and subjectivity rather than only the letter of the law (which was already somewhat clouded with gray). These cases fall under the term “substantial similarity”—legalese for copying that is not verbatim. Herein begins the mass of swirling gray, because “substantial similarity” is highly subjective.

The majority of copyright infringement cases today regard substantial similarity rather than literal word-for-word copying. Whereas previously Plaintiff Polly could only have a case against Defendant Danny if he reproduced her short story verbatim (or very close to verbatim), Polly may now have a case if she thinks Danny has stolen the plot line or characters from her story.

Wait a minute, you’re saying. I remember that you explained to us from the start that only the expression of ideas is copyrightable, not the ideas themselves. So how can Danny get sued for using the same plot as Polly? Isn’t the plot just an idea? And come to think of it, aren’t there supposed to be only a few dozen plot lines existent in literature anyway? (Meaning that pretty much every writer everywhere ever has infringed.) To all this I say—a perfect example of the glorious ambiguity that is copyright!

Determining someone’s guilt or innocence in an infringement case takes into consideration several factors.

1. KNOWLEDGE. If a defendant had no prior knowledge of the work he infringed (so if Danny never read any of Polly’s stories), then he’s off the hook. Sort of. Of course there’s a loophole: If the plaintiff (Polly) can prove that the defendant (Danny) was exposed to her work, even if he has forgotten it—so, in essence, subconscious knowledge—then she may be able to win her case. So let’s say that one day in the waiting room of his doctor’s office, Danny skimmed through an old issue of the New Yorker looking at snippets of stories without paying much attention to the fact that they were written by Polly. This means that he has subconscious knowledge of Polly’s writing. This loophole strikes me as particularly ridiculous, because how much of what we do, say, and create comes from our subconscious? A hell of a lot, I tend to think. How can someone even prove something like this, I wonder? I’m imagining mind probes or something similarly sinister. Moving on.

2. ORIGINALITY. In other words, is the plaintiff’s work itself validly copyrighted, or did the plaintiff herself infringe on another’s work, knowingly or not? Is Polly a conscious or unconscious/subconscious infringer herself? If the plaintiff herself is found to have infringed in any way, her claim to the copyright of those elements becomes invalid, which means the defendant could possibly be off the hook.

3. PROTECTABILITY. The court must also examine whether the material can be copyrighted or if it cannot—like an idea, a historical fact, and so on. This can often prove to be no easy task. For instance, in Polly’s case, the court would have to determine just how closely Danny’s alleged infringement encroaches on Polly’s work. Are both story plots something commonly found in literature, like a love triangle, or does Polly’s contain a unique twist (say, one of the members of said love triangle is a cockatiel) that Danny’s also contains? Are both main characters the typically tragically flawed hero, or does something unique set them apart? (For instance, both Polly’s and Danny’s protagonists have a speech impediment and a fondness for Gouda, both are orphans, and both solve crimes with the aid of a Pekinese.) If the similarities seem to be more than mere coincidences, then a case for infringement can be made. But if the similarities seem more general and coincidental (both protagonists are named Charles and wear glasses, for instance), then there tends to be less of a case for infringement.

4. SUBJECT. This piggybacks on number 3. The subject matter affects how similar the two works in question are, so courts must examine the intent of each work. When looked at individually, Polly and Danny may have characters or plot lines that are similar when looked at in isolation, but when looked at in the context of the whole piece, differences may be found. (Polly’s story is a serious literary work whereas Danny’s story is a very funny piece poking fun at society.) Courts examine these cases not in an analytical, dissect-every-detail fashion but rather as observers—as consumers of the product. Of course this method works better for creative works than for more technical works such as computer software. But just because only one element of another’s work appear in an otherwise original work doesn’t mean that infringement hasn’t occurred. Danny’s story may only have copied Polly’s bizarre love triangle and nothing else, but the court may still rule it as an infringement. As with everything copyright related, nothing is set in stone.

So let’s say defendant Danny is finally found guilty of copyright infringement. What are the damages? Let’s back up one step first. In order for someone in the U.S. to even sue for copyright infringement, the copyright must be registered, and that registration must be done within three months of first publication or prior to the infringement if the work is unpublished if the person wants to collect statutory damages and legal fees. Even though registration of copyright is no longer required in the U.S., it’s still a good way to cover your bum legally.

The conditions for suing a copyright infringer are:
• the case must be brought in federal court within three years of the infringement;
• the copyright must be registered;
• only the copyright owner(s) can sue.

What does the plaintiff get if the infringer loses the case?
• The actual damages (such as compensation for lost profits, tarnished reputation, and lost business opportunities)
• Any profits the infringer made from the infringed work, if these profits exceed the plaintiff’s lost profits
• Possible reimbursement of court costs and attorney’s fees

If a plaintiff can’t prove the actual damages inflicted by the infringer, statutory damages may be in order. These can be no lower than $200 and no higher than $20,000 for unwillful infringement; willful infringement can fetch as much as $100,000 or higher. Willful infringers can be sent to jail and/or fined in the six-figure range if they are criminally prosecuted, but these tend to occur primarily in cases against pirates, smugglers, and software “Robin Hoods” (arrrgh, walk the plank, ye scurvy knave!). Plaintiffs, whether they receive damages or not, may be able to get injunctive relief that forbids the infringer from infringing further.

I’m sure that some of the infringement cases brought to court are really ludicrous, and I’m actually pretty rattled by the subconscious stipulation. I’m sure that if someone were willing to take things far enough if could be argued that just about everything we create stems from some prior subconscious exposure to it. It seems difficult or even impossible to prove that another person who unknowingly infringed on your work had subconscious prior knowledge of it.

Consider a situation from my own life: my freshman year of college, I wrote a one-act play for a class about a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work. And a few months after my play was written and graded (I got an A, thankyouverymuch), the movie Office Space was released, a movie where the main character is a man who hates his job, has an awful commute to work each day, and who waxes to his friends about the pointlessness of work.

I’ve pointed out the similarity between the two to my friends, and I was actually quite proud that I’d managed to beat the curve and write something trendy. But whereas Office Space went on to become a huge cult classic, my play has been seen by perhaps a grand total of twenty-three people (I’m being generous here). So does this mean that if one day my play does happen to become a huge off-Broadway hit that Mike Judge can sue me for infringement, even though I wrote my play and staged it before I was even consciously aware of the existence of Office Space and before it had been released in theaters? Am I an infringer? Did I subconsciously feed off of Mike Judge’s creative vibe and channel it into my own play?

So there you have it. The muddled messes of fair use and copyright infringement. Seems like you’re damned if you do and you’re damned if you don’t. It almost makes me wonder how anyone is brave enough to pick up a pen at all anymore to create anything new. I’ve had similar feelings of apprehension; I had started plotting out a novel and adding in elements when I realized that some of the elements were similar to another novel that I had read about a year prior. I hadn’t been thinking about that particular novel at the time I was writing my own plot line, but as I wrote the plot I was shocked to realize the similarities. Was it my subconscious dredging up the memory of the novel I’d read the previous year? Or was it just such a common plot element that a lot of novelists like to throw it into their plot lines? I was so stunned that I’d seemingly recreated another novelist’s book without even thinking about it that I stopped working on the novel, putting it aside to work on some other time. I haven’t touched it since.

COMING SOON
I’ll be examining some famous infringement cases and offering my insights in a future entry. And I’ll be talking about the tangled web of public domain.

FURTHER READING
The Copyright Book: A Practical Guide (Fifth Edition) by William S. Strong
This book provides excellent advice to all creative types out there in easy-to-understand, legalese-free language.

Another Quick Commercial Interruption...

2007-06-21T16:43:00.002-04:00

So, I've finally joined the twenty-first century. I just bought an iPod.

Don't get too excited! It's just a little iPod shuffle. But I needed something to make the gym more bearable, and I figured a tiny, cute, lightweight music player in metallic pink hit the spot.

As I continue with my studies this summer, it's amazing to me just how often I now seem to encounter copyright issues in everyday life. I think I was just never aware of the prevalence of intellectual property. Take for instance my new purchase. In order to use my iPod, I needed to use iTunes and also install some iPod software on my Mac Book. As I prepared to install the software, the following popped up:

"IMPORTANT NOTE: This software may be used to reproduce
materials. It is licensed to you only for reproduction
of non-copyrighted materials, materials in which you
own the copyright, or materials you are authorized or
legally permitted to reproduce. This software may also
be used for remote access to music files for listening
between computers. Remote access of copyrighted music
is only provided for lawful personal use or as
otherwise legally permitted. If you are uncertain
about your right to copy or permit access to any
material you should contact your legal advisor." (from Apple iTunes software legal disclaimer)

First off, that was just the very beginning of a very long document that I actually took the time to scan (okay, I took the time to scan it really quickly, but I did scan it!) Secondly, I thought it was charming that Apple encouraged me to speak with my legal advisor. Let me just dial Raul, Apple, I've got him on speed dial.

Does anyone ever actually read those legal disclaimers? I know that we should, but who has the time? Who actually understands most of what they say? I know that their purpose is to protect Apple should any sort of legal action come to light, and I have to admit that this blurb at the beginning of their long statement is written in plain enough English that most people should be able to understand it. I can also understand the importance of such a statement in a post-Napster world. In essence, Apple is shifting the responsibility for your actions onto you entirely. They acknowledge that they created a product that's used for copying, but they're not going to dictate how you use, they're just going to say how you should use it. It's like they're selling you a car, and they're saying, we know you will drive this car, but it's not up to us to determine how well you will drive the car. Here are the keys. Peace out, homeslice.

This reverts back to the personal copying that I discussed in the previous entry. It's not really legal, but it's not technically illegal either. Apple is acknowledging this. They're sure that most people aren't going to cause any problems, but in case any do, they've covered their bums.

But this also leads me to think about all the times I've installed software or otherwise quickly clicked through a licensing agreement without really paying attention to it. Was I wrong in doing so? Should I be more personally responsible and take the time to fully understand what I'm doing? Does anyone actually read those long-ass licensing agreements? Do companies intentionally make these things long-winded and vague, or do their lawyers just not know any better? At least Apple made an effort. Should other companies follow their lead and perhaps try writing a summary of the most important information in easy-to-understand language before the long-winded disclaimer?

While my project tends to focus more on copyright issues pertaining to publishing, I do find it useful to bring up examples from time to time of copyright in the real world. In what other places do you find copyright notices? What do they really seem to say? Do any of you read them? What do you think of them? Can you think of a better system for informing users?

Photocopies: Are You Breaking the Law?

2007-06-21T16:38:00.001-04:00

I’ve talked about photocopies made by libraries and schools that are protected (somewhat) by the garbled guidelines of fair use. But what about copies made by copy shops? Should the copy shop employees be responsible for making sure that permissions have been obtained for the materials they’re copying?

Due to the fact that copy shops (such as Kinko’s) had gotten into trouble for copyright infringements in the past, the Copyright Clearance Center was established. Founded in 1978, it’s a nonprofit organization that makes the process of using copyrighted materials easier by offering consumers permissions to use the materials for a fee. So consumers can pay to use copyrighted materials that were submitted to the center, and the creators of the copyrighted works get compensated (this is a simplified summary of how it works). I’m sure it’s not flawless but it seems like a fair enough system that allows both parties to get what they want. (Or at least to get some of what they want.)

And what, dear reader, about copies that you yourself make? On your VCR at home or by surreptitiously using the copier at work while you should be filing, or even at the library? Are you a copyright infringer when you make copies of things without first getting permission?

Yes and no. No one’s really sure. Some people claim that if you’re making the copies for personal use—say, taping a show to watch when you get home from work or photocopying a favorite poem to hang up for inspiration in your cubicle—that this use is fair. You’re not trying to benefit from the copy you’ve made; you’re just trying to enhance your life.

But Congress and the courts have been wary to label these personal uses of copyrighted materials as fair uses—in essence they’ve avoided saying anything at all. This means that there are no fair use guidelines for personal copying, which further means that every time you make a copy of copyrighted materials for personal use, you are infringing upon that copyright.

[points and calls you INFRINGER!]

But of course, no one really gets in trouble for making personal copies. Even though it’s technically an infringement, copyright holders don’t rise up en masse and come after these people because it’s generally not doing them much harm. And they generally don’t even know it’s going on in the first place. Since we’re thankfully not yet living in the era of Big Brother, citizens can pretty much do/copy as they wish in the privacy of their homes. Copyright law tends to emphasize the fact that copies made for public consumption without permission are illegal and an infringement, but Congress has stayed basically mum on creating guidelines governing fair use for personal copying. So what does that mean? Is in fact then legal? Should we abide by a don’t ask, don’t tell policy as we do with many other things?

My belief is that personal copying really isn’t hurting anyone if it’s kept strictly personal—that is, putting the new album you bought on iTunes on your iPod, not making 20 copies of it for all your friends. I read an interesting viewpoint on copyright by Paul Goldstein, the author of “Copyright’s Highway,” that really helped me come to this conclusion. In it he talked about how intellectual property differs from regular property in its very sort of “metaphysical” state. Physical property is often diminished in some way when it is used: crayons wear down as we color with them, playground equipment breaks down when we play on it, a box of cookies disappears (sadly) as we eat them. The value of these things thus diminishes. But the value of an intellectual property item does not diminish as it’s used. In contrast, its value often increases the more it’s used. The pages of a book might come loose or a record might get scratched, but the contents—the story, the songs—retain their value. So each time a piece of intellectual property is used by a new consumer, the value of its content remains the same, or, one could even argue, increases as it is shared with others.

This segues nicely into the concept of public domain and the sharing of information in an increasingly smaller world, so that’s where we’ll pick up next time. Brace yourself: It's a doozy!

FURTHER READING
For information on the Copyright Clearinghouse Center: www.copyright.com

A Quick Commercial Interruption...

2007-06-19T15:10:00.002-04:00

I realize that I never explained the difference between infringement and plagiarism. Until more recently, I sort of used to get the two confused myself. Both of them involve not asking permission to use another person's work (in essence, "stealing") but one of them has an even higher level of dishonesty attached to it.

Infringement is when a person reproduces another's copyrighted works without asking permission. The person using the copyrighted work, however, does not purport to own or have created the work.

Plagiarism, a problem that seems to plague academic communities, is when a person reproduces another's works (copyrighted or not) without asking permission, but the person then passes the work off as his or her own. So all those kids who copy-paste passages directly from books into their term papers without properly citing them are plagiarizing. It's like a glorified term for cheating or copying.

Okay, back to your regularly scheduled CopyRighteous.

Fair Use, or, How Xerox Changed Everything

2007-06-18T22:47:00.001-04:00

So. Up until this point, what I've been learning has pretty much emphasized the fact that material protected by copyright is just that--protected from unauthorized copying. But what happens as technologies evolve and make the copying of protected materials increasingly easier?

Photocopying was like the shot heard 'round the copyrighted world. The rise of the Xerox photocopier in prominence as an office must-have (starting in the 1960s) made it extremely easy for anyone to create copies of documents and other photocopiables at whim, due to the fact that now entirely new plates didn't have to be made any time someone wanted to print something. Office workers must have thrown crumpled balls of carbon paper jubilantly in celebration, but publishers were probably more uneasy. Didn't this rise in new technology mean bad times on the horizon?

Not really. What it did mean was a reexamination of copyright law and the kinds of instances where it was permissable for an entity to create copies without asking permission or compensating the owner--fair use.

Let's pause here and say that the whole concept of copyright has some nebulous qualities about it. If you really think about it, the fact that you are protecting the expression of an idea can make your brain start to warp a little. But add fair use into the mix and you've got a fairly twisted mind implosion. There are no brightly drawn dilineating lines when it comes to fair use. It is the grayest of gray areas.

What is it, exactly? Fair use is a tenet of copyright law that allows for copies to be sans permission or compensation while following a set of guidelines. Fair use is allowed in certain contexts--for instance, educational purposes, research purposes, business, personal use, and such. There are certain criteria which must be met and followed for the use of copyrighted materials to be considered fair use and not copyright infringement (which is illegal).

An interesting case that brought the issue of fair use in libraries to the forefront (with "forefront" here meaning, "Hey, Congress, you should probably maybe eventually take a look at this and mull it over and perhaps make some changes, eh?") was the case in the late 1960s of Williams and Wilkins (a publisher) versus the National Library of Medicine and the National Institutes of Health. To summarize: The NIH had subscriptions to a great quantity of research journals and made photocopies of these available to researchers and doctors, but they didn't get permissions before making and sending off these copies. Most of the journals, published by nonprofits, didn't seem to give a hoot that this was happening. But Williams and Wilkins, a for-profit publisher whose journal articles were being copied without seeking permission, gave many hoots. They argued that the NIH's free distribution of these articles would undercut their already relatively limited subscriber base. The NIH countered that it was essential that the articles contained within all their journals, including the Williams and Wilkins journals they subscribed to, be made available upon request by researchers. Giving the information when it was requested, they said, was part of fulfilling their mission. "We get that," said Williams and Wilkins. "We just want a little compensation. How about a paltry fee paid to us for using our articles?" The NIH said: NO. Other libraries backed them up

The case ended in the NIH's favor, which made libraries everywhere happy. When the Copyright Act was up for revision in 1976, libraries lobbied for exemptions to allow photocopying sans exemptions. What they got instead was section 108 of the Copyright Act of 1976. This somewhat garbled section allowed libraries some fair use photocopying. This included making copies to replace or preserve documents or copies made for researchers when the original can't be provided, as in the case of interlibrary loans. Photocopiers in libraries also had to display signs warning patrons about copyright law. (Come to think of it, the photocopier at my office also has such a warning on it, which I suppose is the college covering its bum in case anything were ever to happen bordering on infringement, but considering that we just use the machine to copy office documents, the sign seems like overkill.)

I could get much more in-depth with this, but I want to focus now on another case that raised some red flags in my head: photocopies made for the classroom. Surely you've received photocopied articles or literary passages from your professors (or have made them), or you may even have received one of those "course packets"--you know, the stack of photocopies bound with a plastic spiral binding that inevitably gets snagged in the sleeve of your sweater. Anyway. These all constitute photocopies made for the classroom, for educational purposes. And all these photocopies have presumably been made because the teacher or professor first secured permission from the copyright holders and compensated them fairly. Right?

In theory, that's what's supposed to happen. But who exactly should be responsible for making sure that these permissions have been secured: should it be the responsibility of the individual professor to ensure that this happens, or does the responsibility ultimately fall upon the school? Guidelines were drawn up for fair use in the classroom (with the classroom being a nonprofit setting), which were, as all government guidelines tend to be, muddled. These copies had to meet a brevity requirement (word count), a spontaneity requirement (a piece not being used over and over), and a cumulative effect requirement, which is so muddled I'm not sure if I understand it. (According to Samuels in "Illustrated History" [see reading list below]: "generally no more than nine instances of multiple copying per course per term, with further limits on the number of works by any particular author" [26]. To which I say, HUH?) Seriously, you need an additional Ph.D. just to understand all these guidelines. What's a professor to do? Hem and haw and try to figure out in which instances he needs permissions, or just photocopy the passages from his portable Nietzche and hope that no one catches him and cares?

In a case brought against NYU in the early 1980s regarding fair use in educational settings, the very matter came up as to whose responsibility it was to ensure that educational fair use guidelines were being followed: professors or the professors' institution of employ. And in a blow to educators, it was decided that the university had to tell professors to either follow the guidelines or get the necessary permissions. The university would provide the professors with legal guidance as to whether the copying they wanted to do was kosher or not. But basically, the university played Pontius Pilate, washing its hands, ultimately, of responsibility and thrusting it instead upon individual professors.

Upon learning about this case, I felt this telltale surging in my gut that happens whenever I have uncovered a case of "that's so not fair." As someone who fervently loves education and who deeply respects and admires educators (mostly because I'd never want their jobs myself), I couldn't believe that an institution that is made upon the labors of these educators was willing to throw them to the wolves in terms of fair use. An educational institution is only as good as its faculty, but if the institution isn't willing to get behind its faculty and support them, how are we supposed to interpret that?

Not to mention the fact that this laissez faire on the part of the universities could seriously impact the quality of education of their students. I can remember many times receiving some sort of photocopied document from teachers and professors that contained knowledge I wouldn't have gotten otherwise--the book was out of print, there were too many different short story collections we would have had to buy to get such variety, the magazine was difficult to procure. These professors shared these materials with us in order to better us, to teach us and give us knowledge. They had no deviant ulterior motive. They had no desire to fleece the publisher and author. They just wanted to share ideas with us. And to know that these people could have been punished and potentially not supported by the institution that hired them just makes me really upset. It seems truly unethical. With all the other things professors have to worry about, obtaining permissions is yet another burden to add to overloaded plates. Not to mention the fact that many times the materials professors hand out copies of are timely. Were the professor to wait and obtain permission to photocopy and give us students this article on a news item, it would hardly be newsworthy by the time we got the copies.

So while I've only very briefly gone over the nebulous fair use guidelines, the most important thing to know is that they tend to raise as many questions as they try to answer. And I feel that all the nit-picky worrying over potential copyright infringement could make the sharing of information more difficult, thus putting a clamp on learning. What do you all think? Is it a good idea to allow educational institutions and libraries fair use guidelines? Should they not be exempt at all and have to pay for permission to use works? Or should fair use be even more generous so that ideas and knowledge can be exchanged even more easily? What about the NYU case? Have any educators had to worry about fair use violation? Has it stopped any of you from using materials in the classroom that would have been of great benefit to your students? Any thoughts you have on fair use are welcome.

FOR FURTHER READING:
All things copyright, plus fun pictures and anecdotes: The Illustrated Story of Copyright by Edward Samuels
More sordid details on the Williams and Wilkins case: Copyright's Highway by Paul Goldstein
Legalese on fair use: http://www.title17.com/contentLegMat/legmat.html
Association of Research Libraries' copyright timeline, with lots of interesting links throughout: http://www.arl.org/pp/ppcopyright/copyresources/copytimeline.shtml

NEXT TIME: So we've covered some instances of fair use of copyrighted materials in places like libraries and schools. But what about you, Mr. or Ms. Private Citizen, sitting at home taping shows off the TV or photocopying your favorite poems on the office copier? Are you an infringer? Or is your bum covered too? Stay tuned.

COMING SOON: What's public domain? How have changes to copyright law affected public domain? And why should you care?

The Stuff I'm Studying, In the Flesh!

2007-06-13T15:37:00.001-04:00

Last night I was having dinner with one of my new roommates, who is completing her fifth year in the chemistry PhD program at MIT (!). We talked for a while about what she does each day in the lab, and then she started asking me questions about the Emerson publishing program. Of course I got excited, because I love talking about publishing, and I told her how much of a crazy hit-or-miss kind of industry publishing is. Then she asked me a question that actually relates to some of the things I'll be studying more in-depth later this semester.

Her parents live in Switzerland and she asked, "Why is it that some books seem to come out sooner in other countries, or that the paperbacks come out sooner in other countries?"

I was then able to explain to her a little bit about subsidiary (sub) rights and how the sale of these rights impacts when books are published in what country. For instance, My Great Novel may be published by Pidal Press in the U.S. in hardback, but the rights have also been sold for it to be published in English and in paperback in France. (Of course there's more to this subject but I'd like to delve into it more deeply as I learn more about it later this summer.)

She had no idea that the whole sale of rights in publishing was such a huge thing, and she seemed genuinely interested. It served to further validate what I'm studying and it also made me think that yes, people who aren't involved in publishing are interested in this stuff too, because they genuinely have no idea what goes on behind the closed doors of the publishing industry. (Not that I know a ton more than they do, having not yet worked in the "pub biz" [as my old coworker used to call it] myself, but I'm just going by what my professors are telling me.)

So there you have it. Relevance! Interest in my studies by someone who is not studying anything remotely related to it! Validation! Fun anecdote! Call it what you will, but it was really cool to talk about the stuff I'm studying outside of the classroom. I just wanted to share/brag about that in here. Longer post on fair use coming soon.

It's History: The Last Segment on International Copyright History

2007-06-12T22:02:00.001-04:00

It seems like the story of international copyright never ends, but I swear that it does, and I swear that this will be my last entry devoted to the topic. (Really!)

Fast-forward (or rewind, depends on what point of view you're looking at it from) to America in 1976. Not only were we celebrating 200 years of existence, but the U.S. Copyright Act was also being revised, for two main reasons. One, the development of new technologies impacted copyrighted materials because of the fact that duplication of copyrighted materials was becoming easier than ever, and this led to confusion over what could be copyrighted and what constituted infringement. And two, the act needed to be revised in anticipation of the U.S. joining the Berne Convention.

That's right, folks. Pick those jaws up off the floor. The U.S. finally decided to join Berne (or, in 1976, at least to think about joining Berne in the near-ish future--good enough). So we revised away. The terms of protection were extended to life of the author plus 50 years and copyright protection was extended to unpublished works. Fair use guidelines were also established for copies made for educational purposes (there'll be more on fair use coming up in a near-future entry). After the '76 revision, the U.S. wanted other countries to be more stringent in protecting their copyrighted exports (especially technological exports, since it was the time when computers and software were starting to boom). Other countries gave us the "As if!" After all, we still weren't members of Berne, so even though we complained that other countries were too lax, we ourselves didn't even meet Berne's stricter standards.

So in 1988, over 100 years after its inception, the U.S. finally joined the Berne Convention through Congress's passing of the Berne Implementation Act. As part of this, the U.S. did away with the formalities involving copyright, such as notice and registration. These were no longer required in order for a work to be protected by copyright. But even though there was much fanfare when the U.S. revised the Copyright Act in '76, when it finally joined Berne the press was relatively quiet. Perhaps the U.S. was trying to keep things mum in order to NOT dissuade people from still registering for copyright (though now it was voluntary)? But even though it was now not required for people to register for copyright, there were still advantages, such as the ability to recover attorney's fees and statutory damages in the case of infringement.

So that, in a nutshell, is the story of the history of copyright here and in our interaction with other countries. Of course, more stuff has happened since then, but a lot of it I feel will fit better in other sections of discussion on this blog, so I'll hold off for now. I never really knew just how convoluted the history of copyright in America was, especially in this country's dealings with other countries. While the U.S. may have seemed like a sour grape by not wanting to join Berne earlier and being stingy with protection for foreign authors, it hasn't all been negative. The U.S. did emphasize the importance of protecting works and new technologies (and protecting works from new technologies) early on, before other countries saw the importance of this. And while I wish that the U.S. and other countries in the world could have happily gotten along in a hold-hands-and-sing-Kumbaya kind of way from the get-go, there's something to be said for the U.S. sticking to its guns and not allowing other countries to influence it and its decisions. While I don't 100% agree with everything the U.S. did during the course of copyright history, I do admire the fact that from the start, this nation recognized the importance of protecting the intellectual property of its citizens.

Juicier topics will soon follow, like fair use and public domain. This is going to start getting really interesting... I promise!

International Copyright: The Saga Continues

2007-06-10T15:07:00.001-04:00

Picking up in 1891: 101 years after first adopting federal copyright protection, the United States finally passed an ammendment protecting foreign authors. But, as history (and the previous entry) proves, the U.S. wasn't going to give up without a fight. Or without being somewhat sneaky about things. The protection afforded to foreign authors by this U.S. ammendment involved some smoke and mirrors. For instance, foreign authors could keep their rights but foreign publishers had none. And foreign authors had to follow all sorts of strict conventions, such as registering and depositing copies of their works in the U.S. on or before their date of publication anywhere else in the world. Also, foreign authors' works had to be printed from type that was set in the U.S. The firm restrictions were eventually relaxed somewhat, though they were still far more strict than anything followed by Berne countries.

Meanwhile, Americans discoverd a "back door" into Berne that allowed them to reap the benefits of publishing in foreign countries without having to actually comply by what was set forth by Berne: if a work was first published in a Berne country simultaneously, it would be protected in all Berne countries even if the author wasn't a Berne author. This meant that many American authors were simultaneously publishing their books in Berne countries like Canada or England. This pissed off the Berne countries so they created a protocol that allowed its members to decide if they would deny protection to authors whose native countries didn't provide adequate protection to foreign authors.

At this point, the term "cat fight" is coming to prominence in my mind...

All this back and forth does indeed seem catty, especially when we can see that the majority of the rest of the world was cheerily humming along under the happy umbrella of Berne. Why was the United States so resistant to foreign protection? Because American publishers were reaping huge benefits from the sale of foreign books--books that they weren't paying foreign authors to use.

But by midway through the twentieth century, things absolutely needed to change. The tumultuous first half of the century (war, depression, more war) meant that the tussle over copyright was shelved in favor of other things. But after the United States emerged victorious from World War II not only as a world superpower but also as a huge exporter of entertainment, the need for a less isolated (perhaps even sobbish?) stance on foreign copyright was necessary. The United States still wasn't interested in Berne, whose countries by this point had added "moral rights" that allowed authors to prevent mutilation of their works and whose authors were protected for life plus 50 years (U.S. term was a max of 56 years), so it decided, "If you can't beat 'em, create something that'll placate 'em." Here the Universal Copyright Convention (UCC) was born.

Despite being negotiated under the brand new United Nations Educational, Scientific, and Cultural Organization (UNESCO), the UCC was really created for the U.S. It was the only country that really needed to get itself straightened out in terms of foreign copyright because the rest of the world happily held hands under Berne. By 1955, the UCC went into effect, protecting the United States through a lower level of protection. A minimal protection time period of 25 years was established, so the U.S. was covered with its twenty-eight-year first term of protection. The UCC also got rid of the manufacturing stipulations and the need for a formal registration of copyright. Now all that was needed was for the author to indicate his or her name and the year of publication next to the copyright symbol of a "c" enclosed in a circle.

The fact that the United States had finally caved in, in its own unique way, was enough for the other Berne countries, and authors from other countries started using the UCC copyright notice on their works. This went on for 33 years, until even more changes. (Stay tuned for more on that in the next entry.)

I think one of the things that amazes me so much about the United States' unwillingness to play nice with basically the rest of the world on the copyright issue up until this point is the fact that freedom of speech was purportedly of such great value in the U.S. Free expression and freedom of the press were encouraged and in fact protected since the very infancy of the country. So why then did the same country make it so difficult for authors from other countries (who were freely expressing themselves) to have some level of protection from being taken advantage of? Was it an "our way or the highway" mentality? Did the U.S. feel threatened? Was the U.S. just being greedy and allowing publishers to swindle foreign authors for as long as possible?

International Copyright, Part 1: America versus England, or, Mo' Money, Mo' Problems

2007-06-07T22:26:00.001-04:00

So the brand-new United States took the time to protect its authors by creating copyright laws right from the get-go, using laws that were based on those being used in other countries such as England. But even though the U.S. was eager to borrow heavily from England's laws, it wasn't in any hurry to share content fairly. In fact, the United States has often been a rather does-not-play-well-with-others player in the game of international copyright.

For the first 101 years of American copyright law's existence (1790-1891), the act only protected American authors. There was no thought given to foreign authors, but this wasn't a rarity as many other countries also hadn't bothered with protection for foreign authors. In the 18th century, there were very few American authors who could produce books, so the majority of books in America came from other countries. This situation didn't last for long though; by mid-nineteenth century, the list of notable American authors was growing (think: all the "dead white men" with three names you had to read in your literature survey courses), and America was now a contender in the international literary marketplace.

"Hmmm," thought the British, "those rapscallions across the ocean who thumbed their noses at us and were cocky enough to think they could start a country all on their own... the writers over there aren't half-bad."

And while the British were noticing the American authors, they were also noticing the impunity with which American publishers printed books. Sure, they were printing the books of all their Thoreaus and Emersons. But they were also printing works by foreign authors, mostly those of British authors, without securing copyrights and without really caring what the end product was like. This pissed the British off and led them, in 1837, to submit to Congress a petition demanding that foreign authors be protected in the U.S., citing the fact that the "reputation and property" of British authors were being harmed by the uncopyrighted publication of their works in the U.S. The American publication of foreign works was also hurting American authors, the British petition went on to say, because the uncopyrighted foreign works were much cheaper for American publishers to produce than copyrighted domestic works. This meant that an American browsing for a new book to read would be more inclined to pick up a cheap novel by a British author rather than shelling out more for a pricier American novel. Couldn't America see that granting copyright protection to foreign authors would benefit everyone?

It couldn't. So the following year, England took matters into its own hands and began the process of protecting foreign authors by passing the International Copyright Acts. These acts only worked in a reciprocal fashion, however, so while other countries were happily playing along with England, America was still giving it the cold shoulder. It was also keeping its copyright laws basically the same as they had been since their inception.

During these times, authors who were particularly clever were attempting to simultaneously publish their works in both America and England, though this could prove to be tricky because the authors needed to be able to travel from England to America, or vice versa, and reside there at the time that the book was published. Not a particularly easy or effective means of securing international copyright, especially when one considers that in those days travel was, to put it quite frankly, a bitch.

In 1878 a group of authors, artists, academics, and publishers formed the Association Litteraire et Artistique Internationale, an organization that drafted what would would later (1886) become the Berne Union for the Protection of Literary and Artistic Works. This was an international copyright treaty where participating countries would follow the golden rule: treating others (foreign authors) as they (domestic authors) would like to be treated. England signed on. Many countries in Europe signed on. Other countries signed on. The United States did not. Oh, they sent someone along to the proceedings to scope out the scene, but then Congress decided that they had to first think about how America would protect foreign works (if at all). Way to play nice with others, U.S.

The story of international copyright doesn't end there, and I'll pick up on what happened after 1891 in the next entry. But I just have to pause and briefly reflect on things up to this point. The fact that many countries came together and unanimously decided that they should protect the work of authors regardless of their country of origin gives me a warm, fuzzy-ish feeling. The fact that the United States decided to peace out of the Berne Union initially gives me a headache. Why wouldn't this young country willingly join in this mutually beneficial agreement with other countries? Was it trying to prove itself as being independent? Was it unsure of itself? Was it just an example of Congress being its usual ridiculous self? Or was the American publishing industry just to happy raking in the profits? This is something I'd like to explore further, but it certainly bears thinking about.

How did we get here? The birth of copyright

2007-06-01T23:36:00.001-04:00

After a horrendous weekend of moving (let's face it, no matter how excited you are to live in a new place, the lugging of boxes and furniture from one place to another is never fun), I'm finally back in gear and back into the swing of all things academic.

I've been reading about the evolution of copyright, and following is a brief summary and my thoughts.

So when and where did copyright come from? It began over 500 years ago with Gutenberg's invention in 1440 of a moveable type press. Before this invention, copying printed works was a royal pain in the behind-or arm. Books were copied one at a time by hand by monks or other scribes. Not exactly an efficient system, and perhaps the cuase of the first cases of carpal tunnel syndrome? But after the printing press was invented, copies could be made much more quickly and efficiently than before, and so copies of Ye Olde Manuscripte were suddenly available to a much wider audience.

But with this glorious invention came a whole new slew of problems for authors. Previous to the printing press, it was very difficult for copies of a book to be made, so authors had no real need for protection against unauthorized copies. Hell, considering how hard it was to produce even one copy of the book, I would have jumped for joy if a monk somewhere had actually wanted to copy my book, so that then I might have a few more readers and two copies in existence instead of just one. After the printing press made multiple copies of any given work the norm, however, the need to protect an author's right to duplicate his or her work came into play.

Authors weren't immediately protected though. Initially, the rights to publish a book went to the printer who first printed the work and not to the author, meaning that if Ye Olde Manuscripte Printer was the first to publish Ye Olde Manuscripte, Ye Olde Manuscripte Printer had the right to publish Ye Olde Manuscripte for as long as they wished and the author had no say. Pretty lousy deal for authors. In the 1550s in England, the Stationers Company was chartered by royal decree to control book printing and distribution. This arrangement benefitted the Crown because they had given publishers the power to control content and act as censors or what would and would not be published. Publishing soon turned into a huge monopoly (and you thought corporatization was a modern-day problem); the original press to publish a book was protected against piracy and authors had no say. To make it even worse for would-be authors, the poor schmucks had to petition to even have their books printed for a set period of time.

Naturally this led to discontent amongst authors, and in 1694 Parliament allowed the Stationers' Licensing Act to expire. After this came the Statute of Anne in 1710, which offered authors 28 years of copyright protection. As a part of registration for copyright protection, authors had to donate 9 copies of each of their published books to major libraries in England and the UK. Clever way to build a library.

MEANWHILE, ACROSS THE OCEAN IN 1787...

The newly formed United States was tinkering around with its Constitution and established copyright as a way to protect the authors whose works would in turn help contribute knowledge to society. A subsequent law, passed in 1790 by George Washington, allowed authors to hold copyright for 28 years and required 1 copy of the published work to be deposited with the local district court clerk and 1 copy delivered to the secretary of state-who at the time was Thomas Jefferson. The American law borrowed from the British one, so despite the fact that the Americans no longer considered the British good enough to rule over them, they still considered their laws good enough to copy off of. (An interesting aside to ponder at a later date: could the Brits have copyrighted their law, thereby rendering the Americans unable to copy it? Don't know the answer but it is interesting to think that laws on copyright were being copied.)

It's interesting to note that even though the First Amendment protected free speech and freedom of the press, copyright was still seen as worthy of protection. The coexistence of the First Amendment and copyright law proved that even though lawmakers believed publishers should be able to print whatever they wanted, the authors who created the words still had a right to be protected from unauthorized copies that would prevent them from profiting from their work.

So, in essence, copyright law evolved from the publishing monopoly that censored and exploited authors in England. Lawmakers realized that authors would have no incentive to create new works that would enhance society unless they were protected from exploitation, and thus copyright laws were established. Copyright protection became an incentive for authors to write; for the most part, authors could not be paid to create, so copyright protection became like the currency authors were given in place of money. Sounds suspiciously a lot like the "psychic currency" we publishing students are told we'll be getting paid in rather than dollars once we get jobs in the biz.

Go ahead and ask: Why is she studying this stuff?

2007-05-23T21:07:00.002-04:00

At this point, any sane human being should be wondering why in the world someone would get interested in studying copyright and related issues in depth when they aren't, say, in law school.

I suppose I've always had an interest in copyright in that I have always been interested in the concept of ideas as property. I remember reading A Tree Grows in Brooklyn when I was younger where the author, Betty Smith, wrote an introduction to an updated edition wherein she said that one of her fans wrote her a letter saying that Betty had written the fan's book before the fan had gotten a chance to do so. But the way in which the fan had phrased the letter made it sound almost accusatory, like, "You took MY great idea and got paid for it! You thief!" That anecdote in the introduction always stuck with me; could Betty Smith in fact be accused of stealing because her book happened to be about the same things another person merely thought of? (I think probably not, but that's what we'll learn as I continue with my studies.)

Later I took workshops in writing wherein novice authors (and some not-so-novice authors) were always freaking out about someone stealing their ideas or works, to the point where some people wouldn't even share their plot lines or titles. The term "poor man's copyright" (where you mail a copy of your work to yourself and keep it sealed to prove the date of creation) was bandied about. Everyone seemed obsessed with protecting their ideas. The funny part about this paranoia is that writers are so self-obsessed that no one else has time to pay attention to anyone else's ideas. (For the most part anyway.)

The seed in my head that became this directed study wasn't planted until Fall 2006 in my Magazine Publishing Overview course. We had a particularly dynamic guest speaker one evening who was an intellectual property rights lawyer. I found our discussion about publishing ethics and laws related to publishing fascinating. For a brief hour, I considered chucking it all and going to law school. Dreams of brilliantly defending the slandered and plagiarized filled my head. Then I regained my sanity.

But the ideas we talked about that night stuck in my head. The more I learned about copyright and writers' rights, the more interested I grew. This past semester (Spring 2007), I took a Book Publishing Overview class and started to develop a keen interest in the work of literary agents. I was particularly interested in the concept of writers making money by selling various rights, such as translation rights, paperback rights, etc., and thought it might not be a bad living to be a literary agent or a foreign rights agent. And any time we talked about copyright in class, I found the subject really interesting. I found myself wanting to pursue the topic in depth, but none of the classes offered at Emerson really delved into these topics down to their geekiest depths. Hence, my directed study.

So now my directed study has begun. I'll be beginning at the beginning: learning about the history of copyright, and in my next few posts I'll be reflecting on how it all started, what direction things took, and where we're at today--and why.

Welcome!

2007-05-19T23:01:00.001-04:00

Welcome to my blog! My name is Raquel, and I'm a first-year graduate student in the Emerson College Publishing and Writing master's program. This summer, I have undertaken a directed study that focuses on issues of copyright, contracts, and writers' rights. While this subject may seem dry as burnt toast to some, I find it quite fascinating, and simply by talking about it a bit with people, I find that everyone's got something to say about it, even if they didn't originally know they did. The subject of ownership always seems to get an opinion out of everyone, especially the ownership of intellectual property, so I'll be exploring that this summer by posting regularly to this blog.

My hope is that this blog will encourage people to consider copyright in new ways and add their own opinions in the comments sections so that it will turn into an interactive cyberdiscussion of sorts. Real posting will begin in earnest next week as I begin my readings and studies.

So... welcome!