Legal Stuff

Court vacates apparent fake-defendant libel takedown order in Patel v. Chan

6 July 2017

From The Washington Post:

About a year ago, Matthew Chan — whom I knew from another Internet free speech case— let me know that someone had apparently gotten a bogus court order aimed at removing one of Chan’s Yelp reviews. Chan, a Georgia resident, posted a negative review of Mitul Patel, a Georgia dentist, on Yelp and a few other sites. Several months later, Yelp emailed him, saying that it was considering taking his comment down because it received a court order that was issued against him, and the court concluded that his comment was defamatory.

But wait, said Chan — he had never been sued. And sure enough, the order was against a supposed Mathew Chan of Baltimore. As best we can tell, no such Mathew Chan exists in Baltimore, but in any event no Baltimorean is the author of the post. Yet the order was supposedly based on that Mathew Chan agreeing with Patel that the review was defamatory and should be removed. (Patel told the court that he did not authorize the lawsuit or sign the pleadings, though he did hire a “reputation management company” to do something.)

In any event, this led Paul Alan Levy and me to investigate what seems to be a pattern of such fake-defendant libel takedown orders — at least about two dozen seem to fit that mold, and several of them have been linked to reputation management companies run by one Richart Ruddie (such as Profile Defenders). It also led me to investigate many other shenanigans related to such orders.

Link to the rest at The Washington Post

Notice and take down is a process that is supposed to protect online hosts in response to court orders or allegations that content is illegal.

After a website receives a notice that it has published illegal content – content that infringes copyright, is libelous, etc., and the notice includes a demand that the illegal content be removed from the website, if the website operator promptly removes such content, under US and EU law, such removal limits the liability and/or provides safe harbor from claims by the copyright owner, the person libeled, etc., against the website operator.

As indicated in the OP, sometimes parties abuse the notice and take down process to remove content which is not illegal but which those parties want to suppress.

The abuse of notice and take down described in the OP takes things a step further, intentionally misrepresenting facts to the court during litigation and intentionally failing to serve the defendant with notice of the lawsuit. In a perfect world, the court would declare the plaintiff and plaintiff’s counsel in contempt and impose substantial penalties upon them.

If any TPV visitors would like to learn more about the consequences of abusing the notice and take-down remedies, check out this discussion of Online Policy Group vs. Diebold.

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Tolkien Estate and Warner Bros. Settle Lawsuit Over Licensing

5 July 2017

From The New York Times:

Warner Bros. and the estate of J.R.R. Tolkien have settled an $80 million lawsuit over the digital merchandising of products from “The Lord of the Rings” and “The Hobbit.”

“The parties are pleased that they have amicably resolved this matter and look forward to working together in the future,” Warner Bros. said in a statement to The Hollywood Reporter.

Terms of the settlement were not disclosed.

The lawsuit, filed in 2012 by Mr. Tolkien’s estate, claimed that Warner Bros. was in breach of contract and also violating copyright infringement for merchandising characters from Mr. Tolkien’s books — and the subsequent successful film adaptations — beyond the scope of what was agreed to when the rights were sold in 1969, causing harm to Tolkien’s legacy.

. . . .

The lawsuit said that the estate had only granted the right for Warner Bros. to sell “tangible personal property,” giving as examples “figurines, tableware, stationery items, clothing and the like.” It said it did not grant “electronic or digital rights, rights in media yet to be devised or other intangibles such as rights in services.”

Link to the rest at The New York Times

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The Association of American Publishers Welcomes Major Judgment Against “Sci-Hub” Pirate Site

23 June 2017

From The Association of American Publishers:

The Association of American Publishers (AAP) welcomes the June 21, 2017 ruling of the United States District Court for the Southern District of New York regarding the willful infringement of scores of scholarly articles protected by copyright law. Ruling in favor of Elsevier, the publisher that brought the action, the Court entered a default judgment against Sci-Hub, the Library Genesis Project, and a number of related sites, and against the defendant operator.

The Court awarded Elsevier $15,000,000 in damages based on a representative sample of 100 infringed works and makes permanent a 2015 preliminary injunction that required U.S. domain name registries to suspend the defendants’ U.S.-administered domain names. The award is the maximum damages award permitted by law and reflects the intentional nature of the infringements. It should be a deterrent to those who support or do business with illegal operators.

“As the final judgment shows, the Court has not mistaken illegal activity for a public good,” said Maria A. Pallante, President and CEO of AAP. “On the contrary, it has recognized the defendants’ operation for the flagrant and sweeping infringement that it really is and affirmed the critical role of copyright law in furthering scientific research and the public interest.”

Link to the rest at The Association of American Publishers

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Amazon Bites Off Even More Monopoly Power

21 June 2017

From The New York Times:

Amazon on Friday announced plans to acquire Whole Foods, the high-end grocer. If approved by antitrust enforcers, the $13.7 billion deal would give Amazon control of more than 400 stores, an extensive supply chain and a new source of consumer data.

Amazon will argue to federal authorities, most likely the Federal Trade Commission, that the deal should be blessed because the combined entity’s share of the American grocery market will be less than 5 percent.

But antitrust officials would be naïve to view this deal as simply about groceries. Buying Whole Foods will enable Amazon to leverage and amplify the extraordinary power it enjoys in online markets and delivery, making an even greater share of commerce part of its fief.

The company has established its level of dominance because of the failings of our current antitrust laws. To understand why, you first need to understand the scope of Amazon’s power. It has captured 43 percent of all internet retail sales in the United States, with half of all online shopping searches starting on Amazon. In 2016, it had over $63 billion in revenue from online sales in the United States — or more than the next 10 top online retailers combined. It controls 74 percent of e-book sales, is the largest seller of clothes online and is set to soon become the biggest apparel retailer in the country.

. . . .

 Think of Amazon as a 21st-century version of the 19th-century railroads that connected consumers and producers. Because of their gatekeeper role, railroads had power to discriminate, both among users and in favor of their own wares. These middlemen could tax the farmers and oil producers who depended on their rails — or deny them a ride and sink their livelihoods.

. . . .

In several key ways, Amazon uses its power as the railroads did. By integrating across business lines, Amazon now competes with the companies that rely on its platform. This decision to not only host and transport goods but to also directly make and sell them gives rise to a conflict of interest, positioning Amazon to give preferential treatment to itself.

The vast troves of information it collects enable it to self-deal with great finesse. News accounts tell how Amazon exploits data collected on the businesses using its platform to go head-to-head with them.

And like the railroads of yore, Amazon dictates terms and prices to those dependent on its rails. During negotiations with the publisher Hachette over e-book pricing, Amazon showed its might by effectively disabling sales of thousands of Hachette’s books overnight.

. . . .

Antitrust laws, which were passed by Congress to prevent these kinds of concentrations of private power, have been largely reduced to a technical tool to keep prices low. The change in thinking traces back to the Chicago School revolution of the 1970s, which ushered in decades of mergers and consolidation.

Embodying this “consumer welfare” regime, Amazon has largely avoided government scrutiny by devoting its business strategy and rhetoric to reducing prices. The company has marched toward monopoly by exploiting the defects of contemporary antitrust law.

Preventing Amazon from concentrating even more control will require that antitrust enforcers block the company’s bid for Whole Foods. But lawmakers and officials should go even further, embracing the original goals of antitrust law and adopting a competition policy fit for the digital age. Unless we recover our antimonopoly tradition, Amazon will centralize exceptional control.

Link to the rest at The New York Times

Somehow, PG has problems with the logistics of “embracing the original goals of antitrust law” while “adopting a competition policy fit for the digital age.”

Consider the dates the principal antitrust statutes came into being: the Interstate Commerce Act – 1887, the Sherman Act – 1890, the Clayton Act – 1914, the Federal Trade Commission Act – 1914, and a newcomer, the Robinson–Patman Act – 1936.

These laws were passed primarily to deal with market abuses by railroads and oil companies. The classic problem this legislation was designed to solve was a farmer in Iowa who, in the absence of any network of reasonable roads, had only one railroad available to ship corn to market. If the railroad raised shipping rates, the farmer had to pay those prices or not sell the corn.

So, Amazon is exactly like a railroad because, when you open your web browser, the only place where you can buy anything online is Amazon. Walmart is completely inaccessible. So is Google Shopping. And Apple? Forget about it. It’s absolutely impossible to buy anything from them. Ebay, Rakuten, JD.com? Not a chance. The internet train tracks don’t run there. How about Alibaba, whose 2016 profits were 55% greater than the combined profits of  Wal-Mart, Amazon and eBay. They can’t sell anything because Amazon.

The author of the OP is a “legal fellow” (is that sexist?) at “the Open Markets Program at New America.” From a quick visit to their website, the fellows appear to dedicate themselves to Amazon bashing.

And this “New America” organization?

New America was founded in 1999 to nurture a new generation of public intellectuals—scholars, policy experts, and journalists who could address major social, economic, and political challenges in ways that would engage the public at large—and to provide a set of blueprints for American renewal in an era of globalization and digitization. The initial challenge, which continues today, was to find the minds and foster the debates needed to guide American renewal in an era of profound, exhilarating, but often threatening change.

Further, “New America is a 501(c)(3) non-profit organization and all donations are tax deductible”, which means that, unlike Amazon, New American pays no income taxes and is excused from paying lots of other taxes as well.

But nurturing a new generation of public intellectuals doesn’t come cheap.

New American receives most of its funding from other organizations that also don’t pay any taxes. The minority of listed donors who do pay taxes includes Google, Walmart (plus the Walton Family Foundation), Netflix, Comcast, DISH Network Microsoft (plus the Bill and Melinda Gates Foundation) and Facebook.

If you identified any competitors of Amazon among New America’s donors, you would be correct.

By mere coincidence, neither Amazon nor Jeff Bezos are listed as donors. Perhaps if Jeff wrote a check, New America would discover that Amazon’s business practices fit perfectly into “a competition policy fit for the digital age.”

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Supreme Court’s Lexmark Decision Expands Scope of Patent Exhaustion Defense

3 June 2017

From Fenwick & West LP:

For the fifth time this session, and following fast on the heels of its landmark decision in TC Heartland v. Kraft Foods earlier in May, the Supreme Court again reversed the Federal Circuit. The case, Impression Products, Inc. v. Lexmark International, Inc., significantly expands the scope of the patent exhaustion doctrine. The doctrine of patent exhaustion limits the rights that remain available to a patentee following the initial authorized sale of a patented item. In a 7-1 opinion issued on May 30, the Supreme Court reversed the Federal Circuit analysis concerning both domestic and foreign sales, overturning more than two decades of precedent at the lower courts. It held that “a patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose or the location of the sale.”

This case arises from a dispute between Lexmark, a manufacturer of printer cartridges, and resellers of its cartridges. Lexmark makes proprietary toner cartridges for printers, which it markets and sells both internationally and domestically. The Lexmark cartridges are sold either at full price, or at a discounted rate under its return program. Each return program cartridge carries a contractual single-use/no-resale obligation on the purchaser not to refill the cartridge with toner and reuse it. Other companies known as “re-manufacturers” acquire empty Lexmark cartridges (including ones sold under the return program) from purchasers in the United States and abroad, refill them with toner, and then resell them at lower prices.

Lexmark brought a patent infringement suit against several of these resellers. The litigation proceeded until only a single count of infringement remained against a single defendant, Impression Products. Impression Products did not contest the enforceability of Lexmark’s patents, or that the patents covered the cartridges that Impression Products imported and sold. Rather, Impression Products contested liability based solely on the defense of patent exhaustion and moved to dismiss Lexmark’s claim of infringement with respect to both cartridges sold domestically and those sold abroad.

With respect to cartridges that Lexmark sold domestically, the district court found that the doctrine of patent exhaustion barred Lexmark’s claims, even for cartridges subject to the post-sale use restrictions of Lexmark’s return program.

. . . .

Sitting en banc, the Federal Circuit ruled in favor of Lexmark on both the domestic and international exhaustion issues, holding that the neither Quanta nor Kirtsaeng overruled the limits on patent exhaustion under prior Federal Circuit case law.

. . . .

The Lexmark Court first considered the question of whether a patentee that sells a patented article domestically subject to express restrictions on a purchaser’s right to reuse or resell the product may then enforce those restrictions by bringing a lawsuit for patent infringement. In examining this question, the Lexmark Court drew heavily from its prior patent exhaustion decisions in Quanta and United States v. Univis Lens Co., 316 U. S. 241 (1942). These cases uniformly held that the first authorized sale in the U.S. of a material object terminates patent rights associated with that object and leaves a patentee without the ability, under patent law, to control the use or disposition of the product after the initial sale. These cases, however, left open the possibility that a patentee may still be able to place contractual restrictions on the use of the items it sold.

With Lexmark, the Supreme Court slammed that door shut. Indeed, all eight Justices agreed that—under the patent exhaustion doctrine—Lexmark’s sale of the cartridges extinguished the asserted patent rights, notwithstanding the contractual restrictions on reuse Lexmark attempted to place on the articles prior to sale. The Court based its decision not only on its prior patent exhaustion cases, but also on its copyright ruling in Kirtsaeng, which addressed the first sale doctrine codified at Section 109(a) of the Copyright Act. It explained its view that: “This well-established exhaustion rule marks the point where patent rights yield to the common law principle against restraints on alienation.”

. . . .

The Court noted that, while “[i]t is true that a patented method may not be sold in the same way as an article or device, [m]ethods nonetheless may be ‘embodied’ in a product, the sale of which exhausts patent rights.” Quanta also held that the patent exhaustion doctrine applied if the item sold is only a component of a device but “the incomplete article substantially embodies the patent because the only step necessary to practice the patent is the application of common processes or the addition of standard parts.” In other words, if an item “embodies essential features of the patented invention,” including method claims, and “their only reasonable and intended use was to practice the patent,” the sale of the item will exhaust the claim.

The Lexmark decision does nothing to disturb the Quanta framework. Accordingly, under the combination of Lexmark and Quanta, patent exhaustion applies where critical components of a claimed apparatus or method are sold by the patentee either domestically or internationally.

. . . .

The Lexmark Court suggested two situations where patent exhaustion may not apply.

First, because the doctrine depends on an initial sale, it may not apply where a patentee distributes a patented article pursuant to license, as opposed to in an outright sale. As the Court noted, “[a] patentee can impose restrictions on licensees because a license does not implicate the same concerns about restraints on alienation as a sale.” After all, “a license is not about passing title to a product, it is about changing the contours of the patentee’s monopoly.” By contrast, “[p]atent exhaustion reflects the principle that, when an item passes into commerce, it should not be shaded by a legal cloud on title as it moves through the marketplace.” It is, of course, common to distribute software, firmware, and other technology via license rather than sale, and thus patent exhaustion may be inapplicable for such distributions.

Second, patent exhaustion may also not apply where the unauthorized sale of a patented article occurs.

Link to the rest at Fenwick & West LP and thanks to Colleen for reminding me to post on this topic.

Colleen wondered if the Lexmark decision might have an impact on ebooks and the first sale doctrine that permits the resale of printed books by the purchasers thereof without restriction.

PG could hold forth on this topic at great length, but, in a reversal of his usual practice, he will restrain himself on this occasion.

The Lexmark decision is of interest to traditionally-published authors because it clearly distinguishes between the rights of the patent holder if a product embodying the patented apparatus is sold or if it is licensed.

If the product is sold, the patent is exhausted and the patent owner has no further rights to prevent anybody from doing almost anything with the product, including refill it. If the product is licensed, but not sold the patent holder may be able to control what happens to the product later on.

A US Circuit Court of Appeals has held that there is a distinction between licensing and sales under copyright law. PG has previously posted about this decision, FBT Productions LLC v. Aftermath Records, 621 F.3d 958 (9th Circ. 2010).

The FBT case involved the rapper, Eminem. For iTunes downloads, Eminem’s publisher was paying the same royalties as would have been due upon the sale of CD versions of the songs. Eminem contended that the relationship between the publisher and iTunes was a license of a subsidiary right, for which a much higher royalty was due under the singer’s publishing contract.

Ultimately, the court held that downloaded songs were licensed, not sold. Elements of the court’s decision were that only a single master copy of the song was provided to iTunes and Apple then made copies for downloading by the customer as opposed to Apple selling a separate CD to each purchaser.

The impact on authors comes with ebooks.

The Terms of Use for ebooks on the websites of Amazon, Barnes & Noble, Kobo, etc., say that ebooks are licensed to the purchaser, not sold to the purchaser.

For a long time prior to the Eminem case and, unaccountably, after the Eminem case, a great many publishers provided boilerplate royalty provisions that paid a percentage of the net income from each ebook sold by the publisher. Typically, this percentage is 25%. Quite often in a separate subsidiary rights section of the contract, a much higher percentage royalty is paid for the licensing of the author’s books.

The Lexmark case addresses a point of great concern to publishers – pirated copies of ebooks.

If a court were to apply the Lexmark reasoning to copyrights, the first sale of an ebook would exhaust all of the rights the publishers hold via their contracts with authors and ebooks could be freely resold on the used books market just like printed books are. If ebooks are licensed, resale of ebooks can be restricted. But higher royalty rates would seem to apply.

Finally, a bit of background – The Federal Circuit is an appeals court that only handles appeals from decisions of US District Courts on patents (plus a bunch of even more obscure items), regardless of the location of the original action.

US Circuit Courts of Appeal handle appeals of decisions within a particular geographical area, e.g. the Third Circuit Court of Appeals handles appeals of cases tried in Pennsylvania, New Jersey, Delaware, and the Virgin Islands.

Sometimes the various circuit courts of appeal issue conflicting decisions. That requires the US Supreme Court to straighten out the conflicts.

The theory behind the establishment of the Federal Circuit is that patent law is its own weird little area of the law, sometimes with a lot of technology and math thrown in, and that judges who specialize in hearing cases of that sort will usually be able to handle those appeals more efficiently.

As with the Circuit Courts of Appeal, decisions of the Federal Circuit can be appealed to the Supreme Court. The Supreme Court declines to hear most appeals from any of the lower appellate courts, however.

Lately, the Federal Circuit has gone off on a few frolics of its own and the Supreme Court has accepted more appeals in order to straight the law out.

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Bookstores Suffer Unintended Consequences From Mark Hamill’s Campaign Against Fake Autographs

25 May 2017

From Reason:

In a galaxy far, far away, Luke Skywalker is the ultimate hero (or is he?), but here’s a note to state lawmakers in this galaxy: maybe don’t trust him to make policy for you.

California is learning that the hard way, as a new law championed by Star Wars actor Mark Hamill has landed the state in court. In that lawsuit, the owners of a California-based book store argue that new rules governing the sale of autographed memorabilia—like books signed by authors at events hosted by their store and scores of others around the state—are overly burdensome, threaten harsh punishments for minor infractions, and above all else are poorly written.

Under the terms of the law, which passed last year and took effect in January, retailers have to provide certificates of authenticity for all autographed merchandise worth more than $5. That doesn’t sound like a difficult burden for retailers, but look at what has to be included on that certificate.

The law specifies that those certificates must contain a description of the collectible and the name of the person who signed it, the purchase price and date, and an “explicit statement” of authenticity. It must also indicate how many items were signed, whether they are numbered as part of a series, and whether any more might be sold in the future. Oh, and there has to be proof that the seller is insured. And, of course, there has to be a certificate number provided by the bureaucrats at the State Board of Equalization (a real thing, believe it or not, tasked with collecting various taxes and fees for everything from gasoline to recycled computers). There’s a separate requirement for an “identifying serial number,” which, naturally, has to match the serial number of the receipt—a receipt that must be kept by the seller for no less than seven years after the transaction. Finally, the certificate of authenticity has to say whether the author provided his John Hancock in the presence of the dealer, or another witness, and include the name of the witness. (There is no word on whether the witness’ first born must also sign the form.)

. . . .

“This law’s expensive mandates — with voluminous reporting requirements and draconian penalties — create a nightmare for independent booksellers that thrive on author events and book signings,” said Bill Petrocelli, owner of the Marin County-based Book Passage, which has three locations around the San Francisco Bay Area. Petrocelli is the plaintiff in the lawsuit seeking a permanent injunction against the enforcement of the autograph law. The Pacific Legal Foundation, a libertarian legal nonprofit, is representing him in the lawsuit. The lawsuit was filed in federal court for the Northern District of California.

Anastasia Boden, an attorney for PLF, says the law does little to protect consumers from the dangers of fraudulently autographed memorabilia. Rather, the lawsuit alleges, the law will have a chilling effect on “truthful, non-misleading speech” protected by the First Amendment, as it will reduce or eliminate book-signing events, like the ones Book Passage hosts hundreds of times each year.

. . . .

“The public is being swindled on a daily basis and the numbers are huge. I just can’t keep quiet when I see people I love being hurt,” Hamill toldThe Los Angeles Times in 2016 as the bill was working its way through the legislature.

Link to the rest at Reason and thanks to Lucy for the tip.

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California threatens to shut down book signings and therefore small booksellers

15 May 2017

From The Pacific Legal Foundation:

Today we filed this First Amendment lawsuit on behalf of beloved Bay Area bookstore Book Passage, and its co-owner, Bill Petrocelli.

Book Passage is a hub of literary activity and free expression.  In addition to selling books, it hosts over 700 author events a year—in which authors give talks, read passages, interact with readers, and autograph their books.  Bill keeps copies of these signed books to sell later—which you can see scattered down the aisles of his store.  Book Passage also curates a monthly book club, wherein readers are sent a first edition book signed by an up-and-coming author.

Book Passage doesn’t charge a premium for the autograph; all of its books are sold for their cover price. But a newly enacted California law makes it extremely risky, if not impossible, for Book Passage to continue selling autographed books or hosting author events.

Acting on purported consumer protection concerns, the legislature recently expanded its autograph law (which formerly only applied to sports memorabilia) to include any signed item worth over $5—including books.  Under that law, sellers must produce a certificate of authenticity and maintain detailed records of every sale for seven years.  Sellers must, among other things:

  1. Note the purchase price and date of sale,
  2. specify whether the item is part of a limited edition,
  3. note the size of the edition, anticipate any future editions,
  4. disclose whether the seller is bonded,
  5. divulge any previous owner’s name and address,
  6. if the book was signed in the presence of the seller, specify the date and location of the signing, and identify a witness to the autograph.

Link to the rest at Pacific Legal Foundation and thanks to Meryl and others for the tip.

PG suggests an amendment to the state constitution that limits the California legislature to a single two-week legislative session each year so it focuses on matters that really require laws.

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Stephen King Sued Over The Dark Tower

3 April 2017

From TMZ:

Stephen King stole the idea for his main man in “The Dark Tower” series from a famous comic book character also known as a gunslinger … according to a new suit.

The creator of “The Rook” comics claims King’s protagonist, Roland Deschain, is based on his main character, Restin Dane. He says Deschain has striking similarities to Dane other than just their initials — both are “time-traveling, monster-fighting, quasi-immortal, romantic adventure heroes.”

“The Rook” creator also points out King’s Deschain dresses like a cowboy despite not being from the Old West — just like Restin Dane — and the towers in both books look the same.

. . . .

According to the docs … the Restin Dane character was in more than 5 million comic magazines from 1977-1983 and King admits he read those stories. The first book in King’s ‘Dark Tower’ series was released in 1982.

 

Link to the rest at TMZ and thanks to Michael for the tip.

PG says TMZ doesn’t do a very good job of covering legal matters.

 

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Tate Publishing loses second major case

2 April 2017

From NewsOK:

A vendor that supplied printing services to vanity publisher Tate Publishing & Enterprises was awarded a summary judgment on March 31 that could cost Tate more than $2 million.

Xerox Corp. was granted the award after Tate failed to respond to the motion.

The judgment authorizes Xerox to collect $1,446,070.67 from Tate Publishing & Enterprises, and $450,308.18 from Ryan Tate, the company’s CEO.

. . . .

The vanity press, whose attorneys bowed out of the case early this year after telling a judge they hadn’t been paid, did not send a representative to attend the hearing.

A text sent to the CEO’s phone Friday asking for comment was not answered.

The March 31 decision is the second major setback Tate Publishing has encountered since it lost its attorneys.

On Feb. 9, an Oklahoma City federal judge considering a lawsuit filed against Tate by a Tennessee-based printing services firm also awarded a default judgment worth more than $2 million.

. . . .

Writers and musicians who were under contract with Tate as late as in 2016 continue to share stories about money they paid to Tate Publishing to produce their works.

One writer, Heather D. Nelson, is publishing a series of stories she has written that are based on interviews she has done with other Tate clients. She is publishing those stories on her site, heatherdnelson.com/blog.

Nelson said March 31 she understands some authors who have agreed to sign a hold-harmless release against Tate Publishing and have sent the firm $50, have been getting their manuscripts returned.

But Nelson said numerous others are seeking a return of their works without signing the release, and that she has visited with dozens of authors about their experiences with the firm.

Link to the rest at NewsOK and thanks to Meryl and others for the tip.

One of PG’s standard aphorisms when speaking to his clients about business deals is, “Don’t do business with crooks.”

No matter how carefully-crafted the contract may be, it won’t work when the counterparty is a crook.

Perhaps there is a vanity press somewhere that isn’t a crook, but PG doesn’t know who that would be.

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What Should We Do with an Artist’s Music After They Die?

22 February 2017

From Noisey:

We continue to pry open, quite literally in Prince’s case, the private works of artists to feast on their off-cuts, but is this fair?

. . . .

No one wants to think about their own death. If they do, they’re probably artists, and they tend to do so in an abstract, poetic kind of way, rather than an “I should probably file paperwork confirming the administrator of my estate and intellectual property” way. Which is perhaps why, when Prince died suddenly at the age of 57 last year, he didn’t have even the semblance of a will.
With his death, then, came months of legal complications and hearings over who should manage his estate. And because the stakes were so unusually high, the eyes of the world looked on eagerly as the mess was slowly picked apart like a ball of tangled iPhone headphone cords. Would the silver lining of Prince’s untimely end, his fans wondered, be the unveiling of the contents of his infamous vaults? The answer, it emerged last week, is yes.

After his estate was placed in the hands of bank Bremer Trust, and an extensive search for a will proved fruitless, the announcement everyone was waiting for—either hopefully or with trepidation—finally came: Prince’s vaults were to be opened, and at least some of the contents, including outtakes, demos and live recordings, were to be released to the public.

. . . .

As it turns out, the law is designed to make such a thing as easy as possible. “Celebrities’ right of privacy is extremely limited,” says James Sammataro, an entertainment lawyer and managing partner at Stroock & Stroock & Lavan. “This is the ‘price’ for being a celebrity. With the possible exception of a diary – or some comparable item in which there’s a universally recognised reasonable expectation of privacy – the rights to artists’ creations are alienable, and human nature is to attempt to monetise these creations.” The primary purpose of copyright law, Sammataro explains, is not really to protect the individual musician, but to “stimulate the progress of the arts for the intellectual enrichment of the public”.

“While it seems harsh,” Sammataro continues, “if Prince or other artists truly don’t want their works disseminated, they need to memorialise this intention in a binding document, or either not fix the work in a tangible medium or destroy the work.” In other words, if you’re a musician, and you’ve got a tape lying around of the three-chord song you wrote at 15 after getting dumped for the first time, you should probably just burn it now. It’s the only safe option.

Link to the rest at Noisey and thanks to Michael for the tip.

PG says unless you decide what you want to happen with your property, including your books, manuscripts, etc., after you die and include your decisions in something a probate court will recognize, like a will or trust, somebody else will decide what happens to your property.

While PG doesn’t do estate planning any more, there are lots and lots of lawyers who do. Call one and make an appointment.

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