Copyright

Kindle Counterfeiting — A Growing Threat to Authors

24 August 2015

From Words on Words:

An insidious form of piracy is on the rise again, and you may already be a victim.

When Vancouver attorney and author Rebecca Merry Murdock checked Amazon listings for her debut book, she found something strange. The listing for her ebook version was not linked to her author page or the print version of her book. Amazon’s support team remedied the problem by linking the ebook to the print version and her author profile.

Weeks later, Rebecca noticed that a search for her book brought up an unfamiliar ASIN (Amazon’s unique catalog number).

An imposter had stolen the content of her book, uploaded it to Amazon, and created an exact duplicate of her real sales page. That imposter had been collecting royalties for the sale of Rebecca’s book. The imposter’s sale page was indistinguishable from the real one, and worse — it was now linked to her official author page.

And as a final insult, the counterfeit page appeared first when customers searched for Rebecca’s title.

. . . .

Although Amazon’s Anti-Counterfeiting Policy states that “if we determine that a seller account has been used to engage in fraud or other illegal activity, remittances and payments may be withheld or forfeited,” there is no indication that Rebecca will be compensated for months of stolen royalties.

Link to the rest at Words on Words and thanks to Andy for the tip.

Copyright Case Asks: What is a Cheerleading Uniform?

21 August 2015

From The Wall Street Journal Law Blog:

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There can be an almost philosophical quality to copyright fights, which often deal with questions of essence and being.

A ruling handed down by the Sixth U.S. Circuit Court of Appeals in Ohio on Wednesday wrestled with an inquiry into the nature of outfits worn by cheerleaders.

The question before the appellate court was whether cheerleading uniforms are eligible for federal copyright protection.

Sixth Circuit Judge Karen Nelson Moore, who wrote the opinion, framed the case more enigmatically: “Are cheerleading uniforms truly cheerleading uniforms without the stripes, chevrons, zigzags, and color blocks?”

The dispute — an infringement claim by a uniform designer accusing another company of ripping off its designs (pictured above) — is a good example of how tricky it can be for courts to decide what is copyrightable.

Federal law says that for a work to be copyrightable it has to have some originality and be “fixed in a tangible medium of expression,” such as a canvas, film, a computer disc or even human skin. But things get extra complicated in cases involving three-dimensional objects.

How to distinguish between the mechanical or utilitarian aspects of an object and its artistic features is an unsettled area in case law. Only the latter is copyrightable. So, in an example offered by the U.S. Copyright Office in its manuals, the design of a chair cannot be copyrighted but a carving on the back of a chair can be. A T-shirt isn’t copyrightable but artwork printed on it is.

. . . .

“The district court concluded that a cheerleading uniform is not a cheerleading uniform without stripes, chevrons, zigzags, and colorblocks, and therefore Varsity’s copyrights are invalid,” the opinion says.

The Sixth Circuit opinion by Judge Moore disagreed. The court likened uniforms to fabric patterns, which can be protected by copyright. Wrote the judge:

To the extent that [the defendant] contends that pictorial, graphic, or sculptural features are inextricably intertwined with the utilitarian aspects of a cheerleading uniform because they serve a decorative function… we reject that argument. Such a holding would render nearly all artwork unprotectable. Under this theory of functionality, Mondrian’s painting would be unprotectable because the painting decorates the room in which it hangs….It would also render the designs on laminate flooring unprotectable because the flooring would be otherwise unattractive….Finally, holding that the decorative function is a “utilitarian aspect of [an] article,” would make all fabric designs, which serve no other function than to make a garment more attractive, ineligible for copyright protection. But it is well-established that fabric designs are eligible for copyright protection…We therefore conclude that a pictorial, graphic, or sculptural work’s “decorative function” does not render it unable to “be identified separately from,” or “[in]capable of existing independently of, the utilitarian aspects of the article.”

Link to the rest at The Wall Street Journal (Link may expire) and thanks to Dave for the tip.

Russia Has Published Books I Didn’t Write

20 August 2015

From The Daily Beast:

A new foreign-language edition is normally cause for celebration in an author’s household. But in this case the news that two books have been published under my name by the Moscow publishing house “Algoritm” has prompted puzzlement mixed with consternation. One of them is called How the West Lost to Putin. The other is With Putin or without him: what awaits Russia in the next 10 years. I had no idea about either. Nor had my agents, Rogers Coleridge and White, who have dealt with 30-plus foreign-language editions of my previous books.

I am not the only recipient of this unexpected and unwanted compliment. My colleague Luke Harding, a former Moscow correspondent of the LondonGuardian, and my friend Don Jensen, a veteran cold warrior and commentator, have also had books published in their names. Rather more grandly, another book has come out in the name of Henry Kissinger.

It is hard to work out the justification for what looks like an act of intellectual piracy. “My” two books seem to be a collection of interviews and articles already published in other outlets. I may be mistaken, but I don’t think that Algoritm is going to find that a commercial bonanza. I did publish my first book, The New Cold War in Russian, but sales were modest. The effort of collating and translating less substantial bits of work would hardly be merited by the likely sales.

So it is more likely that the aim is propagandistic. The blurb on the publisher’s website says that: “Lucas expresses the views of that part of the British establishment which is negatively directed to the politics of the Putin regime.” The Kremlin’s spin machine wants to portray Russia as a besieged fortress surrounded by malevolent outsiders. How better to demonstrate that than by publishing an establishment jackal who yaps the tunes of the British establishment?

Link to the rest at The Daily Beast and thanks to Matthew for the tip.

Instagramming your brunch could soon be a crime in Germany

19 August 2015

From The Local:

Instagrammers and foodies beware: snapping pics of scrumptious snacks in Germany could leave you facing a lawsuit for copyright infringement by the chef, a lawyer has warned.

. . . .

#FoodPorn is a widely recognized tag on social media for ridiculously mouth-watering food images – but according to a report by Die Welt, food bloggers across Germany could find themselves up against the law when they photograph and upload their meals.

A 2013 Federal Court of Justice ruling expanded copyright protections to apply to elaborately arranged food, making it the artistic property of its creator. That means that anyone wanting to post a pic of the work of culinary art may have to ask permission first.

“An elaborately arranged dish in a restaurant can be a copyright-protected work,” explained Dr. Niklas Haberkamm, partner at corporate law firm Lampmann, Haberkamm & Rosenbaum (LHR) to Welt.

“In such a case, the creator of the work has the right to decide where and to what extent the work can be reproduced,” he said.

. . . .

German legal services website Anwalt.de wrote in a post about food porn on Thursday that whether a meal is considered art depends on the advanced level of the meal’s design, so snapping a selfie with your French fries from a food stand is not going to be the problem – it’s when you go to more refined, world-rated establishments.

Link to the rest at The Local

PG is not an expert on German or EU copyright law, but, in the US, he suggests this would be a stretch.

Authors, Keep Your Copyrights. You Earned Them.

14 August 2015

From The Authors Guild:

Authors should not assign their copyrights to publishers. As our Model Contract emphasizes:

“CAUTION: Do not allow the publisher to take your copyright or to publish the copyright notice in any name other than yours. Except in very unusual circumstances, this practice is not standard in the industry and harms your economic interests. No reputable publisher should demand that you allow it to do so.”

Most trade publishers do not ask for an outright assignment of all exclusive rights under copyright; their contracts usually call for copyright to be in the author’s name. But it’s another story in the world of university presses. Most scholarly publishers routinely present their authors with the single most draconian, unfair clause we routinely encounter, taking all the exclusive rights to an author’s work as if the press itself authored the work: “The Author assigns to Publisher all right, title and interests, including all rights under copyright, in and to the work…”

. . . .

The problem is that most academic authors—particularly first-time authors feeling the flames of “publish or perish”—don’t even ask. They do not have agents, do not seek legal advice, and often don’t understand that publishing contracts can be modified. So they don’t ask to keep their copyrights—or for any changes at all. Many academic authors tell us they were afraid to request changes to the standard agreements for fear that the publisher would pull the plug on their books. One said that when his first book was published in 1976, he never even read the contract and would (and did) sign anything to get published.

So we asked several university press representatives “Why is a clause granting copyright to the publisher the default language in university press agreements?” Here’s what they said (sometimes after consulting with their lawyers):

  • “We are a non-profit press and we can’t do things that commercial trade presses do.”
  • “The press is better positioned than the author to defend the copyright by use of premium outside counsel, as well as by use of an anti-piracy service to curb piracy.”
  • “Having the copyright in the press’s name allows us to work freely to maintain the integrity of the work and maximize its publishing life.”
  • “We’re close enough to the work to do the best job and we have incentive to protect the publishing mission.”
  • “It makes it easier for the press because it doesn’t have to ask for an author’s approval when permission uses are granted.”
  • “It eliminates any confusion as to which party should be contacted regarding re-use and sub-rights, etc. and it simplifies things in regards to piracy as well. Trade authors are more likely to have agents who may retain certain sub-rights and exploit them independent of any publisher relationship.”

Not one of these rationalizations passes the giggle test.

Link to the rest at The Authors Guild and thanks to Melinda for the tip.

Making Sense of Collaboration Agreements

12 August 2015

From CopyLaw:

Nearly everyone has heard the oft-repeated statistic that 50% of all marriages end in divorce. But what about creative partnerships?  The odds are no better.   Pity the poor expert, celebrity, author, playwright or screenwriter who enters into a creative partnership without thinking about the financial, emotional and practical challenges ahead of them.  If the relationship falters, a well-drafted collaboration agreement (written during the romance stage of the relationship) can be consulted.   If the relationship fails, that agreement will help for a clean break-up.

Like marriage, the key reasons most authors cite for failed collaborations are lack of commitment, lack of communication, lack of equality, unrealistic expectations, and, surprisingly, lack of mutual respect.  While trust is an important element of any relationship, without a written agreement you are ill equipped to deal with these and other conflicts.  Contracts define rights and remedies, and thus help avoid misunderstandings.

. . . .

The formation (and dissolution) of a creative partnership is governed by federal copyright law and state contract law. When authors blend their talents to create a unitary work, each collaborator is presumed to co-own the copyright, and share equally in the  money the copyright generates – whether profits or royalties. Further, under the default rules of the Copyright Act – which can be altered by a written agreement — each collaborator can license the nonexclusive rights to the work to a third party, provided they fairly account for the profits to the other.

Problems between collaborators commonly arise when there are multiple offers for the work or requests for exclusive rights and no agreement exists between the collaborators. If your collaboration is not working, and your agreement doesn’t delegate the right to make business decisions to one of the partners, a recalcitrant collaborator can prevent the other collaborator from licensing or selling film or other rights in the work.  For this reason, you might consider changing the default rules of equal control and ownership, if the book is memoir, or an extension of one author’s business or brand.  Relinquishing control, however, does not necessarily mean a smaller financial interest or lack of transparency.

. . . .

If you can’t hold it together long enough to see the work published, the impact of a literary breakup can be devastating.  One such disaster scenario is the unilateral termination of “as told to” collaborations, such as the failed collaboration between Fay Vincent, the former commissioner of baseball, and writer David Kaplan.  After 90% of Vincent’s memoir was completed, Vincent withdrew the project from his publisher, and thwarted Kaplan’s efforts to publish the book under Kaplan’s own name. See, Kaplan v. Vincent, 937 F. Supp. 307 (SDNY 1996).  If the parties had a well-written agreement – as opposed to an oral understanding — likely, costly , time consuming and psychologically draining litigation would have been avoided.
If you are a writer who has been approached to help write a memoir, your agreement needs to address: (i) access to pertinent documents; (ii) reasonable access to the subject; and (iii) the subject’s good faith effort to secure the writer’s access to interviews with other individuals as may be needed to prepare the proposal or complete the book. From the subject’s perspective, confidentiality is a key issue.

If you are assisting with a memoir, are you delivering a “warts and all” portrait? Alternatively, is your role to put the best face on your subject’s life story, without resorting to blatant deception? A property drafted collaboration agreement will address these issues.  The greater you detail what is to be delivered, the less arbitrary the acceptance standards will be.  Since progress payments are the norm, if the subject is unhappy, you may not see anything beyond your initial payment or advance.

Link to the rest at CopyLaw

Copyright is the Cinderella of the law

9 August 2015
Comments Off on Copyright is the Cinderella of the law

Copyright is the Cinderella of the law. Her rich old sisters, Franchises and Patents, long crowded her into the chimney corner. Suddenly the Fairy Godmother, Invention, endowed her with mechanical and electrical devices as magical as the pumpkin coach and the mice footmen. Now she whirls through the mad mazes of a glamorous ball.

Zechariah Chafee and thanks to Paul for the tip

Filmmaker Says Unearthed Songbook Proves ‘Happy Birthday’ Is in Public Domain

30 July 2015

From Variety:

There’s a twist in a long legal tangle over the copyright to “Happy Birthday to You.”

First, though, it’s a surprise to many that there is still a claim to copyright on the song, which is sung, well, just about anytime and everywhere anyone is marking a birthday.

Warner/Chappell Music’s claim to own the rights is being challenged in a federal court, and a documentary filmmaker now contends that she has a “smoking gun” proving that the song’s copyright protection expired long ago, if it ever had protection in the first place.

The filmmaker, Jennifer Nelson, was making a documentary about the history of the song, and paid a license fee to Warner/Chappell for its use. But she and her company, Good Morning to You Productions Corp., filed a lawsuit in 2013 challenging the music publisher’s claim to the song.

In a recent court filing, her lawyers say that a batch of documents produced by Warner/Chappell includes a PDF copy of a 1927 songbook that includes the “Good Morning and Birthday Song,” but with no copyright claims identified. Instead, it includes this line: “Special permission through courtesy of the Clayton F. Summy Co.” Her attorneys also obtained an earlier, 1922 version of the songbook, again with the song and no claim of copyright.

Summy Co. was a music publisher of the time.

. . . .

Under the laws of the time, her attorneys contend, the work fell into the public domain as it did not include a notice that it was under copyright.

But Warner/Chappell argues that the Clayton F. Summy Co. did not own the copyright in 1922 — and that at the time, “Good Morning to All,” on which it was based, was already in its renewal term.

The origin of “Happy Birthday to You” is traced to to a 1893 manuscript for sheet music that included the song “Good Morning to All,” which was written by Mildred J. Hill and her sister, Patty Smith Hill. The song was first published in 1893 in “Song Stories for Kindergarten,” and later the lyrics to “Happy Birthday” were adapted to the song’s medley.

Warner/Chappell contends that Jessica Hill, a sister who had inherited Mildred Hill’s interest in the song after her death in 1916, renewed the copyright to “Song Stories,” which included “Good Morning to All,” in 1921.

. . . .

Warner/Chappell acquired the company that claimed ownership of the song, Birch Tree Hill, in 1998. It has collected license fees for the use of the song in movies, TV shows and other music productions.

The plaintiffs attorneys argue that the 1935 copyright registration covers only piano arrangements.

Link to the rest at Variety and thanks to Casey for the tip.

Since you’ve been wondering about copyright notice for several days, here’s a brief primer.

Since 1978 under US law and since March 1, 1989, under the Berne Convention Implementation Act of 1988, use of a copyright notice on a copyrighted work is not mandatory.

Prior to 1978, under the 1909 Copyright Act, in the US, any publication of a copyrighted work authorized by the copyright owner that did not contain a proper notice of copyright, all copyright protection was forever lost in the US.

Even though not required for copyright protection, placing a copyright notice on your work is a good idea because it prevents an infringer from claiming that the infringement was innocent, thus possibly reducing the damages an infringer would be required to pay.

So, what is a proper copyright notice for a book? According to Circular 3 from the United States Copyright Office, three things are required:

  1. The symbol © (letter C in a circle); the word “Copyright”; or the abbreviation “Copr.”
  2. The year of first publication. If the work is a derivative work or a compilation incorporating previously published material, the year date of first publication of the derivative work or compilation is sufficient. Examples of derivative works are translations or dramatizations; an example of a compilation is an anthology. The year may be omitted when a pictorial, graphic, or sculptural work, with accompanying textual matter, if any, is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or useful articles.
  3. The name of the copyright owner, an abbreviation by which the name can be recognized, or a generally known alternative designation of owner.

Example © 2012 Jane Doe

In some other countries, the word, Copyright, may not be a proper notice. © is recognized everywhere.

How do you get the © symbol? If you have autocorrect turned on in MS Word, when you type (c), Word will change it to ©. If that doesn’t work, you can use the Insert Symbols command in Word and hunt around until you find it. © is also ASCII symbol 169, so in Windows, if you hold the ALT key and type 0169, © should appear.

Speaking of (c), which is frequently used in place of ©, particularly in computer programming, PG remembers lots of disagreements in years past about whether (c) was a proper way of giving notice under the 1976 Act.

More recently, that argument seems to have died down. Since, under current law, the author automatically has a copyright as soon as the work is in fixed form without any notice, most attorneys would agree that (c) and © should both be adequate for the purposes of informing someone of a claim of copyright.

Is Amazon Liable For IP Violations By Its Marketplace Vendors?

24 July 2015

From Forbes Blogs:

Animal-shaped pillows are cute and fluffy, except when they spur litigation. Recently, the Milo & Gabby brand sued Amazon for IP infringement because merchants allegedly sold knockoffs of its “Cozy Companion Pillowcases.” Amazon has successfully avoided IP liability for its marketplace, and a recent ruling rejected most of Milo & Gabby’s claims. However, a key piece of Milo & Gabby’s claim survived Amazon’s dismissal attempt, leaving the possibility that Amazon could be liable for merchants’ IP violations.

. . . .

In 2013, Milo & Gabby sued Amazon in 2013 alleging a variety of intellectual property claims. In 2014, the judge dismissed several of those claims and narrowed the lawsuit to three claims:

* copyright infringement. Merchants allegedly used Milo & Gabby’s copyrighted marketing photos to advertise their knockoff goods. Even if true, the court says this isn’t Amazon’s direct responsibility because “the content of the detail pages and advertisements was supplied by third parties via an automated file upload system, and did not originate from Amazon.” In addition, Amazon qualified for the online safe harbor for user-caused copyright infringement (17 USC 512(c)) that Congress created in 1998 as part of the DMCA. On the key question of Amazon’s ability to control merchants’ infringing behavior, the court concluded that Amazon lacked “practical” control because it can’t “analyze every image it receives from third party sellers, compare the submitted image to all other copyrighted images that exist in the world, and determine whether each submitted image infringes someone’s copyright interest.”

* trademark infringement. Among other things, the court says Amazon wasn’t the seller of the allegedly infringing items because its “third-party sellers retain full title to and ownership of the inventory sold by the third party.” Thus, Amazon didn’t commit trademark infringement.

* design patents. Design patents protect non-functional “ornamental” product designs. In contrast to utility patents, which get lots of attention, most academics and practitioners routinely ignored design patents–until Apple scored a huge damage award in its fight against Samsung based on design patents. Now, lots of folks are keenly interested in design patents.

A design patentholder has an exclusive right to offer the patented item for sale. The court says a factfinder could conclude that Amazon offered the knock-offs for sale, even though the merchants posted the listings. The court explains:

While Amazon notes that the item is “sold” by a third-party vendor and “fulfilled” by Amazon, the fact that the item is displayed on the amazon.com website and can be purchased through the same website, could be regarded as an offer for sale….Likewise, looking at the website, a potential purchaser may understand that his or her assent is all that is required to conclude the deal. Indeed, the website notes the price, allows the buyer to choose a quantity, and allows the buyer to then conclude the purchase.

As a result, the court sends the design patent issues to trial.

Link to the rest at Forbes Blogs and thanks to Dave for the tip.

Facebook’s Piracy Problem

13 July 2015

From Salon:

Destin Sandlin is a missile flight test engineer from Alabama who moonlights as a YouTube star. His science-y YouTube channel, SmarterEveryDay, boasts some 2.8 million subscribers thanks to viral hits like “The Backwards Brain Bicycle,” “A Baffling Balloon Behavior,” and the fabulous “Slow Motion Flipping Cat Physics.”

In September, Sandlin finally made a video he’d wanted to do for years. He toted a special high-speed camera to a tattoo parlor to capture the skin art process in painfully beautiful detail. “When I was editing it, I told my dad, ‘This is gonna be my biggest video,’ ” Sandlin told me. He was right. The result, titled “TATTOOING Close Up (in Slow Motion),” has racked up more than 20 million views in nine months.

So far it sounds like a classic YouTube success story. But it’s actually a story about a form of online piracy called “freebooting” that has grown rampant on Facebook in just the past year. Sandlin and other YouTube personalities are convinced Facebook is profiting from it—at their expense.
It’s also a story about a seismic shake-up in the online video industry. For the first time in its history, YouTube has a real rival. And Facebook isn’t playing by the same rules.

Two days after he published his tattoo video on YouTube, Sandlin got a message from one of his subscribers who had seen it on Facebook. It turned out his video was a viral smash there, too. In fact, it was spreading even faster on Facebook than it was on YouTube, with more than 18 million views in the first two days alone.

The problem was that Sandlin had never posted it to Facebook, and the version of it that appeared in millions of users’ News Feeds overnight wasn’t his. Rather, a British lads’ magazine called Zoo had apparently downloaded (or “ripped”) his video from YouTube, edited it to strip out references to Sandlin and his SmarterEveryDay channel, and posted the edited version on its own page, using Facebook’s native video player. It was an instant sensation, garnering millions of views and a raft of new followers for Zoo’s page. Sandlin, who puts some of the revenue from his YouTube videos toward his kids’ college fund, got nothing.

. . . .

Freebooting, to be clear, is not the same as simply sharing a link to someone’s YouTube video on Facebook. When you do that, Facebook embeds the YouTube video, and all the views—and advertising revenues—are properly credited to its original publisher. No one has a problem with that, including Sandlin. It’s how the system is supposed to work.

But it doesn’t work that way anymore—not well, anyway. That’s because, over the past year, Facebook has decided it’s no longer content to be a venue for sharing links to articles and videos found elsewhere on the Internet. Facebook now wants to host the content itself—and, in so doing, control the advertising revenue that flows from it.

Link to the rest at Salon and thanks to Dave for the tip.

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