Copyright

Sherrilyn Kenyon sues Cassandra Clare for ‘wilfully copying’ her novels

11 February 2016

From The Guardian:

The bestselling fantasy novelist Sherrilyn Kenyon is suing her fellow chart-topping author Cassandra Clare, alleging that Clare’s Mortal Instruments and Shadowhunters series “knowingly and wilfully copied” Kenyon’s Dark-Hunter series.

The Dark-Hunter series dates back to 1998, says the lawsuit; the first in Clare’s Mortal Instruments and Shadowhunter series, City of Bones, was published in 2007.

Filed on 5 February, the lawsuit – which alleges copyright and trademark infringement and is asking for damages, lost profits and an end to infringement – lays out a host of similarities between the series.

Both Dark-Hunter and Shadowhunter books, it says, “are about an elite band of warriors that must protect the human world from the unseen paranormal threat that seeks to destroy humans as they go about their daily lives”.

“They are both given a manual on how to conduct their mission and on how to conduct themselves when dealing with other entities and species in their fictional world,” says the lawsuit.

In an exhibit, it continues: “Both series employ a line of warriors who protect the normal world from demons … In both series, a young person becomes part of the Dark-Hunters’ (or Shadowhunters’) world after being saved by a gorgeous blonde Dark-Hunter (or Shadowhunter) … They each must kill their demonic father … Both Dark-Hunters and Shadowhunters have enchanted swords that are divinely forged, imbued with otherworldly spirits, have unique names, and glow like heavenly fire.”

Link to the rest at The Guardian and thanks to Scath for the tip.

PG reminds all that the expression of ideas is protected by copyright, not the ideas themselves.

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How Google Stole the Work of Millions of Authors

9 February 2016

From the President of the Authors Guild via The Wall Street Journal:

Last week publishers, copyright experts and other supporters filed amicus briefs petitioning the Supreme Court to hear the copyright-infringement case against Google brought by the Authors Guild. The court’s decision will determine how and whether the rights and livelihood of writers are protected in the future.

If you type, “Shall I compare thee to a summer’s day?” into Google’s search box, the text and author will be identified for you in a matter of seconds. This is not because Google has ranks of English majors waiting at the ready, but because, over a decade ago, Google made an agreement with a number of great libraries to make digital copies of every book they owned.

In 2004 Google sent its moving vans to the libraries and carted off some 20 million books. It copied them all, including books in copyright and books not covered by copyright. It asked no authors or publishers for permission, and it offered no compensation for their use—although in compensation to the libraries Google gave them digital copies of the scanned books.

The Authors Guild challenged what Google was doing in Authors Guild v. Google, the copyright-infringement case first brought in 2005 and recently decided on appeal to the Second U.S. Circuit Court of Appeals in New York. In October the court ruled that Google was protected by the doctrine of fair use when it copied the books—partly because it only made limited samples from copyright material available to the public, and partly because the court found that making the books available to an electronic search was “transformative.”

. . . .

It’s useful here to consider that Google reported revenue of nearly $75 billion in 2015. Last year, an Authors Guild survey on writers’ annual incomes since 2009 showed a 67% decline for authors with 15 or more years of experience. Most respondents, if they were to live only on their writing income, would be below the poverty line.

Accomplished writers are important to us. They provide the intellectual core of our culture, and as a society we need their work, their thoughts and their voices. We can’t allow their work to be taken without compensation by technology giants merely because these giants have the capability to do so.

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

Since most publishing contracts continue for the life of the copyright, PG wonders if the real beneficiaries of any Authors Guild victory over Google wouldn’t be the publishers, who receive the large majority of any revenue a book generates.

Perhaps the Wall Street Journal made a typo and the author of this piece was president of the Publishers Guild instead of the Authors Guild. An op-ed from the viewpoint of authors might be titled, How Big Publishing Stole the Work of Millions of Authors.

Crowdfunded ‘Star Trek’ Movie Draws Lawsuit from Paramount, CBS

4 January 2016

From The Hollywood Reporter:

For decades, Paramount and CBS have tolerated and even encouraged fans of theStar Trek franchise to use their imagination at will, but on Tuesday the entertainment companies went to their battle stations and launched a legal missile at a production company touting the first independent Star Trek film.

Axanar, the subject of a lawsuit filed on Friday in California federal court, is no ordinary Star Trek film. The forthcoming feature film (preceded by a short film) is the source of more than $1 million in crowdfunding on Kickstarter and Indiegogo. The producers, led by Alec Peters, aim to make a studio-quality film. As the pitch to investors put it, “While some may call it a ‘fan film’ as we are not licensed by CBS, Axanar has professionals working in front and behind the camera, with a fully-professional crew — many of whom have worked on Star Trek itself — who ensure Axanar will be the quality of Star Trek that all fans want to see.”

Paramount and CBS see a violation of their intellectual property.

“The Axanar Works infringe Plaintiffs’ works by using innumerable copyrighted elements of Star Trek, including its settings, characters, species, and themes,” states the complaint.

Axanar has become one of the biggest film projects in Kickstarter history and has been nearing warp speed with the reported help of Star Trek actor George Takei. The film mines subject area referenced in the late 1960s Gene Roddenberry television series and appears to be a prequel.

. . . .

By August, Peters was giving interviews expressing confidence that the project would survive any legal heat. He spoke to The Wrap that month and reported having a meeting with CBS. He says he was told the film couldn’t make money — and evidently, he took that to be a good sign that his film would be tolerated as long as it wasn’t a commercial endeavor. “CBS has a long history of accepting fan films,” Peters told the entertainment site. “I think Axanar has become so popular that CBS realizes that we’re just making their brand that much better.”

Not so fast.

Paramount and CBS, represented by attorneys at Loeb & Loeb, are now demanding an injunction as well as damages for direct, contributory and vicarious copyright infringement. Although the plaintiffs have allowed ample cosplaying over the years and even permitted other derivatives like amateur Star Trek shows to circulate, the lawsuit illustrates that there is a place where no man has gone before, where the entertainment studios are not willing to let be occupied: crowdfunded, professional-quality films that use copyrighted “elements” like Vulcans and Klingons, Federation starships, phasers and stuff like the “look and feel of the planet, the characters’ costumes, their pointy ears and their distinctive hairstyle

Link to the rest at The Hollywood Reporter and thanks to Antares for the tip.

In Supreme Court certiorari filing, Authors Guild continues to litigate Google Books case after ten years of failure

2 January 2016

From Chris Meadows at TeleRead:

‘Tis apparently the season for Hail Mary appeals to the Supreme Court. We already heard about Apple’s attempt to get its agency pricing antitrust conviction re-heard. It seems only fitting that, in the same month, the Authors Guild brings to SCOTUS an appeal of the case that some have said was indirectly responsible for the agency pricing situation coming about in the first place.

I refer, of course, to the kerfuffle surrounding Google Books, nee Google Print. The Authors Guild first brought suit against Google over the project all the way back in 2005—before I had even started writing for TeleRead. Google’s crime? Scanning and indexing as many books as it possibly could, to seed a search engine to let people search on their content.

The case dragged on and on and on, losing a few years as an attempt at a settlement that would let Google act as an e-book store meandered into the weeds and got lost, before finally being rejected by Judge Denny Chin as too much of an overreach. Eventually, when the Authors Guild’s request for class-action status made its way up to the appeals court, the appeals court told Judge Chin, “You know, this could be fair use. Why don’t you rule on that first?” Perhaps eagerly grasping at the first available straw to get the case out of his courtroom,Judge Chin ruled it was fair use and dismissed the case, passing it on to the appeals court. Unsurprisingly, the appeals court concurred. Appeals court Judge Pierre Leval gave a great lecture in which he explained exactly why Google books was fair use.

. . . .

Effectively, the Authors Guild is concerned over allowing the willy-nilly copying of twenty million complete books for a commercial purpose to be considered fair use, and wonders if the district and appeals court allowed the “transformative” nature of the use to eclipse the other three factors of the four-factor fair use test. But what really seems to burn their biscuits is that Google is making money off their content, whereas they should be the only ones allowed to make money off their content.

Link to the rest at TeleRead

PG says this is not a good use of the dues paid by Authors Guild members.

Lawsuit claims ‘Big Bang’ stole ‘Soft Kitty’ song

30 December 2015

From USA Today:

Bad news for Dr. Sheldon Cooper, who doesn’t do well with uncertainty on CBS’s hyper-hit The Big Bang Theory: No more Soft Kitty lullabies.

Well, possibly.

Turns out the saccharine song that Sheldon (played by Emmy-winning Jim Parsons) needs to calm down or sleep whenever he’s anxious (which is practically all the time) may not have been entirely the invention of Big Bang‘s clever writers.

The heirs of Edith Newlin, a New Hampshire teacher who published a song/poem about a “soft kitty” in 1937, sued CBS and other Big Bang-related media companies, claiming that the show has been violating their copyrights. For years.

According to the Associated Press, Edith Newlin’s daughters, Ellen Newlin Chase and Margaret Chase Perry, assert that the show’s song uses lyrics similar to those written by Newlin in the 1930s without paying for the rights.

. . . .

Edith Newlin, who died in 2004 at age 99, had worked as a nursery school teacher inAlstead, N.H., for about 35 years, and her daughters still live nearby.

Link to the rest at USA Today and thanks to Chloe for the tip.

Ten Reasons Authors Aren’t Retaking Their Copyrights

15 December 2015

From Billboard:

Section 203 of the Copyright Act of 1976 grants to authors a termination right, which is now daily vesting in new authors the ability to regain control of their works. We are now more than 12 years into the window in which Section 203 recapture termination notices could have been served/recorded. While the number of recorded recapture termination notices to date is more than 10,000, the number of authors is far lower — fewer than 500, in fact (several prolific authors have filed multiple notices).

As to the question of why a relatively few number of authors to date have filed recapture termination notices, several possible answers exist:

Authors lack knowledge and understanding of the right. Many authors lack knowledge that the recapture termination right even exists, let alone an understanding of what it could mean for them and/or how to avail themselves of it.

Authors have procrastinated. Even some authors who have knowledge that the recapture termination right exists, an understanding of what it could mean for them and how to avail themselves of it have procrastinated.

Authors are intimidated. The typical individual author is likely to have at least some fear of the “Establishment.” Potentially adding to the fear/ intimidation factor is the fact that, under the provisions of Section 203, once the author serves his/her notice of recapture termination the current holder of the rights (as against whom the recapture termination would have effect) has an exclusive negotiation right for further rights to the copyright at issue, and that exclusivity lasts until the recapture termination notice takes effect.

. . . .

The Establishment has proactively renegotiated, preempting recapture termination. In some cases, the Establishment is reaching out proactively to authors, before receiving a notice of recapture termination, to offer a renegotiated deal. This may be for the purpose of gaining the psychological advantage afforded by having offered a friendly olive branch.

. . . .

Nobody wants to be the (expensive and high risk) test case where sound recordings are concerned. Given all of the factors listed above, one of the biggest reasons for the slow trickle of activity to date, particularly where sound recordings are concerned, is that nobody — neither any author nor any member of the Establishment — wants to be the first to litigate in earnest any/all of the ambiguities, glitches and pitfalls. This is because the litigation, when it does happen, is likely to be expensive, high profile, high risk and tumultuous.

Link to the rest at Billboard and thanks to Glinda for the tip.

Here’s a quick summary of major elements of Section 203:

  1. It applies to grant of any right under copyright, made by an author on or after January 1, 1978, including a book publishing contract.
  2. It does not apply to works made for hire (not something most traditional publishers use). Under works made for hire contracts, ownership of the copyright is in the publisher, not the author.
  3. Section 203 only applies to rights under the US copyright law, so foreign rights are not included.
  4. Section 203 does not apply to derivative works. As an example, if the author granted a publisher motion picture/TV rights and the publisher sold/licensed motion picture rights, the author didn’t create the motion picture, so the author is not the copyright holder of the motion picture. The motion picture was a derivative work arising under the author’s original copyright and the publisher licensed the producer to make the movie as a derivative work under the publishing contract. Reversion of rights under Section 203 won’t give the author the right to the motion picture.
  5. Termination of grants of right under Section 203 can only be obtained during a five-year window beginning after 35 years following the date the author granted rights to a publisher. If there was a delay between signing the publishing contract and publishing the book (which usually happens), opening of the five-year window to terminate under Section 203 are modified to 35 years from the date of publication or 40 years from the date publication rights were granted, whichever is earlier.
  6. There are technical requirements concerning the contents of the notice of termination and who must receive notice. If the publisher has been acquired or closed, notice must be given to the successor in interest to your publishing contract. Notices of termination must also be filed with the US Copyright Office.
  7. The author can send notice under Section 203 up to ten years prior to the opening of the termination window. Doing this will return rights to the author at the earliest possible date.  The termination notice must be given no less than two years prior to the closing of the termination window.

The Authors Guild has a more detailed overview of Section 203 here.

For indie authors with traditionally-published books, Section 203 provides one way of (hopefully) increasing income from their tradpub books by regaining rights and relaunching those books in newer editions and at proper prices.

As with all of PG’s comments on TPV, this isn’t legal advice.

Google Needs To Toughen Up Its Stance on Copyright Protection

12 December 2015

From Publishers Weekly:

I recently received an email from Google asking my company to take part in Google Play. I’m sure I wasn’t the only publishing house to receive such an invitation. However, it led me to send a response about our relationship with Google in several different areas.

While discretion may be the better part of business sense, sometimes it’s hard to stand by and watch a big, powerful business take advantage of the industry you love. And Google has been damaging our industry by listing sites that offer pirated e-books in its search results. My email to Google follows:

“Hi, my name is Rudy Shur, and I am the publisher of Square One. A number of years ago, we did sign an agreement with [the Google Books Partner Program]. Oddly enough, we really never benefitted from this relationship—at least in the same way we benefitted from our relationships with our other e-book partners. While we never quite understood the problem, we saw no real advantage to working with Google.

What we did discover, however, was that Google has no problem allowing other e-book websites to illegally offer a number of our e-book titles, either free or at reduced rates, to anyone on the Internet. When we alerted Google, all we got back was an email telling us that Google has no responsibility and that it is up to us to contact these sites to tell them to stop giving away or selling our titles. Of course we did, but to no avail; somehow I believe that, to begin with, Google logically figured that would be their response.

Link to the rest at Publishers Weekly

Elsevier Granted Injunction Against Research Paper ‘Pirate Site;’ Which Immediately Moves To New Domain To Dodge It

10 December 2015

From TechDirt:

The academic open access movement has gained traction over the past several years as more researchers have noticed their work disappearing behind incredibly expensive paywalls. What could be used to further the scientific world is instead being used to keep companies like Elsevier in prime financial health. Even publicly-funded research is largely unavailable, even to other researchers. Elsevier’s participation in the open access movement has been to charge readers for access to open access documents. Recently, the hashtag #icanhazpdf has been used on Twitter toencourage the sharing of paywalled documents between researchers.

Not officially part of the open-access movement are repositories run by Alexandra Elbakyan, a researcher born and educated in Kazakhstan. Elbakyan’s first efforts to liberate documents from behind publisher paywalls were limited to fulfilling requests made by other researchers in online forums. When she saw the demand far exceeded the supply, she automated the process, stashing the documents at Sci-Hub.org.

Elsevier sued Elbakyan for copyright infringement back in June, seeking an injunction against several domains (including LibGen). A New York judge granted the publisher’s request on October 28th. Not that it appears to matter much, as Quirin Shiermeier of Nature reports.

Access to the site’s web domain was suspended following the injunction. But Sci-Hub, which is advertised as a service “to remove all barriers in the way of science”, has since moved to a different domain. Its revamped site continues to provide unauthorized free access to millions of papers.

Other pirate services, including Libgen, which also allows users to freely download audiobooks, and BookFi, a free repository of more than 2 million books, have also resurfaced on different Internet domains.

Elbakyan, perhaps unsurprisingly, feels the new domain doesn’t violate the injunction.

Elbakyan, who was born and educated in Kazakhstan and is now based in Russia, says she doesn’t think that reviving her site violates the New York court ruling, because Sci-Hub is not a US-based company, and she is not a US citizen or resident of New York.

As a Russian citizen, Elbakyan is free to raise dubious legal arguments. There’s not much Elsevier can do other than waste its own money stamping out new domains as they emerge.

. . . .

Unfortunately, none of this changes the fact that the law views it as copyright infringement. And it doesn’t change the fact that anti-infringement efforts like Elsevier’s will do little to curtail this sort of file sharing. What it could do is take a look at its pricing. Sometimes trimming the profit margin has more impact on copyright infringement than a fistful of federal lawsuits.

Link to the rest at TechDirt and thanks to Meryl for the tip.

Most Targeted Websites in Copyright Complaints to Google

24 November 2015

The entertainment industry continues to fight against online piracy and Google Search is one of their chosen battlefields. According to data published in Google’s Transparency Report, the number of requests requests the search giant receives continues to skyrocket. In the past month, copyright owners filed requests for more than 65 million URLs to be removed from search results due to copyright infringement. That’s more than 15 million requests per week, up from around 200,000 requests per week when Google started disclosing these numbers in 2011.

Our chart shows which websites were most often targeted in copyright infringement claims received by Google since 2011. Most of the websites in the Top 10 are file hosting services that are often used by file sharers to host illegal copies of copyright-protected material such as movies, TV series and music.

Infographic: Most Targeted Websites in Copyright Complaints to Google | Statista
You will find more statistics at Statista

Anne Frank’s Diary Gains ‘Co-Author’ in Copyright Move

14 November 2015

From The New York Times:

When Otto Frank first published his daughter’s red-checked diary and notebooks, he wrote a prologue assuring readers that the book mostly contained her words, written while hiding from the Nazis in a secret annex of a factory in Amsterdam.

But now the Swiss foundation that holds the copyright to “The Diary of Anne Frank” is alerting publishers that her father is not only the editor but also legally the co-author of the celebrated book.

The move has a practical effect: It extends the copyright from Jan. 1, when it is set to expire in most of Europe, to the end of 2050. Copyrights in Europe generally end 70 years after an author’s death. Anne Frank died 70 years ago at Bergen-Belsen, a concentration camp, and Otto Frank died in 1980. Extending the copyright would block others from being able to publish the book without paying royalties or receiving permission.

In the United States, the diary’s copyright will still end in 2047, 95 years after the first publication of the book in 1952.

. . . .

Foundation officials “should think very carefully about the consequences,” said Agnès Tricoire, a lawyer in Paris who specializes in intellectual property rights in France, where critics have been the most vociferous and are organizing a challenge. “If you follow their arguments, it means that they have lied for years about the fact that it was only written by Anne Frank.”

The decision has also set the foundation on a possible collision course with the Anne Frank House museum in Amsterdam, a separate entity that for years has sparred with the Anne Frank foundation over legal questions, such as ownership of archives and trademark issues.

The museum has been working for five years with historians and researchers on an elaborate web version of the diary intended for publication once the copyright expires. The research is still progressing with a historical and textual analysis of her writing, including deletions, corrections and stains.

“We haven’t decided yet when or how the results will be published,” said Maatje Mostart, a spokeswoman for the Anne Frank House. “Any publishing will always be done within the legal frameworks.” She added pointedly that neither “Otto Frank nor any other person is co-author.”

. . . .

Six years ago, the foundation asked legal experts in various countries for advice on its copyright, according to Yves Kugelmann, a member of the foundation’s board. They concluded, he said, that Otto “created a new work” because of his role of editing, merging and trimming entries from her diary and notebooks and reshaping them into “kind of a collage” meriting its own copyright.

Merely declaring Otto the “co-author” on copyright filings extends the copyright, legal experts said, though such a stand could be tested in the courts. Readers would not see any changes on the books themselves, foundation officials said.

Link to the rest at The New York Times 

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