Legal Stuff

In Which I Review My Own Book for Potential Legal Issues

25 April 2015

From intellectual property attorney Marc Whipple:

So, first, to get it over with: I wrote a book. It’s called My Mother Had Me Tested! and it’s a collection of funny mad science/geek-related short stories.

. . . .

ISSUE THREE: REFERENCE TO TRADEMARKED GOODS

In one scene, there is a reference to “The Clapper,” which is a gizmo that allows you to switch electrical devices on and off by clapping your hands. “Clapper” is a registered trademark (USPTO Reg. No 1428261) used to identify acoustically operated switches. Just to make things fun, it’s not a particularly flattering reference (a character refers to it in his head as “infomercial junk.”)

The first point of analysis here is that the book is not an acoustically operated switch, nor is it an advertisement for acoustically operated switches. There is zero likelihood of confusion here. The reference is properly structured (it’s capitalized, and does not genericize the mark. I didn’t include the ® symbol, but in my opinion, it was not necessary, because I am not trying to put people on notice that the mark is registered and protectable since my use of it is not related to the actual goods nor a commercial usage.) So far as straight trademark infringement, I’m good.

Similarly, there is no question of association or endorsement – in other words, I’m not saying or implying that this is an approved usage, or that the people who make the Clapper endorse my book. There’s just nothing there that would make a reasonable person think either of those things were true. This will usually be true of such usages, but when in doubt, talk to an intellectual property attorney.

There is, however, the issue of “tarnishing.” Tarnishing is a legal concept where the holder of a mark claims that a usage, even if not directly infringing, diminishes the value of the mark or otherwise unfairly benefits the unauthorized user to the detriment of the holder of the mark. To be entitled to “tarnishing” protection, a mark must usually be a “famous” mark – I’m assuming arguendo that “Clapper” is a famous mark. If you want to use a trademark because of its cultural associations, that’s actually a resonable indication that the mark may be famous, because otherwise the reference wouldn’t work. So beware!

In any event, in this case, the Clapper is already the subject of innumerable cultural references very similar to the one I made. Calling it “infomercial junk” might be pushing it a little, but not only is it in my opinion in line with the general cultural perception of the device, it’s protected opinion. And since there is no likelihood of confusion, nor is it unclear to a reasonable person that this is an opinion, the First Amendment would be, in my opinion, a complete defense to any accusation that the usage was tarnishing.

. . . .

ISSUE FIVE: REFERENCE TO ACTUAL PERSON “FRED ROGERS”

Without getting into the actual circumstances (Buy the book and fi… no, I promised I wouldn’t do that again.) one of the characters in one of the stories appears to be Mr. (Fred) Rogers, the beloved children’s television personality. Uh-oh. Now I’ve done it. Or have I?

Not so much, it turns out. The very first thing that the character does is say that he’s not Mr. Rogers (and then explain why he looks like Mr. Rogers.) Which is good, because he’s going to do something very un-Mr.-Rogers-like. But still. What are the potential issues here? (Note: It is entirely possible for a person to trademark their name and/or likeness. I’m not going to do another review of potential trademark issues but it is a factor which must also be considered when doing this kind of analysis.)

First, there’s the basic issue of using Mr. Rogers’ name, which is part of his “likeness.” Using someone else’s likeness may be a violation of their Right of Publicity, which in the US is a state-level right. My own state, Illinois, has one of the strictest ROP statutes in the country (765 ILCS 1075, and yes I do have that memorized.) However, courts have ruled that state ROP statutes are subordinate to the First Amendment of the US Constitution, subject to the usual limitations on defamation and commercial speech. Since this is clearly an artistic usage, it’s very unlikely a court would find it subject to the Right of Publicity.

But wait. This Mr. Rogers is going to do something bad. Is this defamatory? Have I libelslandered Mr. Rogers? No, because the character clearly identifies himself as not Mr. Rogers. No reasonable person would believe that the work is stating or implying that the actual Mr. Rogers would do this and/or agree with its being done. And, reading the work as a whole, contextually, it’s clear that this isn’t merely “plausibly deniable,” it’s abundantly clear to any reasonable person that the character has nothing to do with Mr. Rogers other than his outward appearance. Basically, he’s wearing a really, really good Mr. Rogers mask. Arguing that this is somehow defamatory to or associated with the real Mr. Rogers is like saying somebody wearing a Bill Clinton mask while he robs a bank is defaming or attempting to frame Bill Clinton for the robbery.

Behind all of this, of course, is the fact that the actual Mr. Rogers passed away in 2003. In general, it’s not possible to defame a dead person. So even if the use were defamatory (which it isn’t) I’d have that defense as well. However, in many states, the Right of Publicity does survive and is an asset of the person’s estate for quite some time after their deaths. So just because a person is dead, don’t think for a minute that you can automatically use their likeness in whatever way you wish.

Link to the rest at Legal Inspiration

Lawyers called in over Jonasson royalties

23 April 2015

From The Bookseller:

Hachette Book Group USA and the Swedish writer Jonas Jonasson have engaged lawyers to pursue royalty payments owed to the author by Hesperus Press.

Jonasson’s book The 100-Year-Old Man Who Climbed Out of the Window and Disappeared was published in the UK by Hesperus Press in 2012, and became a runaway bestseller. But the author has received only a “small amount” in payments. Earlier this week, The Bookseller reported that all four of Hesperus Press’ UK staff had resigned, with the last employee leaving this Friday. The directors of Hesperus Press have declined to explain the departures.

Hachette Book Group in the US, whose imprint Hyperion owns world English rights to Jonasson’s book, has confirmed that it will begin legal proceedings against Hesperus Press this Friday 24th April in the High Court of Justice in London.

. . . .

The 100-Year-Old Man . . . has recorded UK print sales of 548,435 via Nielsen BookScan and over 700,000 e-books have been sold since publication in July 2012. Jonasson has confirmed to The Bookseller that he has concerns over the level of royalties paid to him, and the quality of the royalty statements he has received, and that his Barcelona-based lawyers are now working on the issue in conjunction with those of Hachette Book Group USA.

Jonasson’s agent Carina Brandt said the author had seen only “a small amount” of royalty money in the autumn of 2012, but nothing further. He had also seen no approved royalty statements, she said. Jonasson commented: “It has been difficult over the years to get any information at all from Hesperus Press.”

He told The Bookseller: “My former agency, my current agent, my Spanish lawyers and Hachette US lawyers are involved in this mess. Personally, I feel helpless. I do not understand what happens except that it’s a lot of money that I have not received.”

. . . .

“If I am to focus on my artistic ability, I need to stay away from it all,” the author said. “But I’ve always felt proud when I think of how popular the book has become in the world. And I remember when the book filled the whole shop window in Waterstone’s flagship store in Piccadilly in London. It felt great that a Swede could become so popular in English. But it’s a mental collision between that experience and the feeling of how I have been handled by Hesperus Press.”

Link to the rest at The Bookseller

E-Book Antitrust Monitor Says Apple Cooperation Has ‘Sharply Declined’

20 April 2015

From re/code:

Apple’s cooperation with a court-appointed monitor has “sharply declined” as he reviews the iPad maker’s antitrust compliance policies, the monitor wrote in a report to a judge.

Michael Bromwich, who became Apple’s monitor after it was found liable for conspiring to raise e-book prices, said in a report on Thursday that Apple objected to providing information and “inappropriately” attempted to limit his activities.

Bromwich, whose relationship with Apple has been testy since the start, had indicated that relations had improved in a report in October to U.S. District Judge Denise Cote in Manhattan.

However, he said in his latest report that the company recently had taken a more “adversarial tone” in discussions.

“We have conducted no interviews since January, and Apple has rejected our recent requests for interviews,” Bromwich wrote.

Link to the rest at re/code and thanks to Joshua for the tip.

Author Suing Joss Whedon, Claims Cabin In The Woods Is Based On His Book

16 April 2015

From io9:

The Cabin in the Woods was one of the most original takes on the “kids encounter scary things in the woods” story that we’ve seen in ages, but one man is claiming that it’s not original at all. Author Peter Gallagher is suing the filmmakers, claiming that the film is infringing on his 2006 novel The Little White Trip: A Night In the Pines.

. . . .

It’s hard to say how profound these similarities are without reading the book (it’s available for free as an ebook through Scribd), but Gallagher’s complaint lists two dozen side-by-side, including similarities between some of the names. In The Little White Trip, for example, the female characters (one blonde, one brunette) are named Jules and Dura and they visit a cabin called “Brinkley house.” In The Cabin in the Woods, the female characters (one blonde, one brunette) are named Julie and Dana and they visit a cabin called “Buckner house.” In both books, the five protagonists receive a dire warning before arriving at the cabin, rummage through the cabin’s storage area, drink and flirt, and are subsequently terrorized by murderous forces.

Link to the rest at io9 and thanks to Joshua for the tip.

Amazon files first-ever suit over fake product reviews

9 April 2015

From GeekWire:

Amazon has filed suit against the alleged operator of several sites that offer Amazon sellers the ability to purchase fake 4- and 5-star customer reviews of their products.

The suit, the first of its kind from the Seattle company, was filed in King County Superior Court against a California man, Jay Gentile, identified in Amazon’s filings as the operator of sites including buyazonreviews.com, buyamazonreviews.com, bayreviews.net and buyreviewsnow.com. The site also targets unidentified “John Does” also believed to be involved in the scheme.

The case is part of a broader effort by the company to crack down on fake reviews.

“While small in number, these reviews threaten to undermine the trust that customers, and the vast majority of sellers and manufacturers, place in Amazon, thereby tarnishing Amazon’s brand,” the suit says. “Amazon strictly prohibits any attempt to manipulate customer reviews and actively polices its website to remove false, misleading, and inauthentic reviews.

“Despite substantial efforts to stamp out the practice, an unhealthy ecosystem is developing outside of Amazon to supply inauthentic reviews,” the suit adds. “Defendants’ businesses consist entirely of selling such reviews.”

According to the suit, the sites operated by Gentile offer to provide fake “verified reviews” for a premium, telling the sellers that they can ship empty boxes to reviewers involved in the scheme, to trick Amazon into thinking that the product had actually been purchased.

Link to the rest at GeekWire and thanks to Randall and several others for the tip.

U.S. Announces First Antitrust E-Commerce Prosecution

7 April 2015

From re/code:

The U.S. Department of Justice’s antitrust division on Monday announced its first prosecution specifically targeting Internet commerce, saying a man has agreed to plead guilty to conspiring to illegally fix the prices of posters he sold online.

David Topkins was accused of conspiring with other poster sellers to manipulate prices on Amazon.com’s Amazon Marketplace, a website for third-party sellers, from September 2013 to January 2014, according to papers filed in San Francisco federal court.

The Justice Department said Topkins also agreed to pay a $20,000 criminal fine and cooperate with its probe. His plea agreement requires court approval.

. . . .

Topkins was accused of conspiring with other poster sellers to use algorithms, for which he wrote computer code, to coordinate price changes, and then share information about poster prices and sales.

The Justice Department said this activity violated the Sherman Act, a federal antitrust law, by causing posters to be sold at “collusive, non-competitive” prices.

. . . .

Amazon was not charged in the case against Topkins.

Link to the rest at re/code and thanks to Joshua for the tip.

Alabama Officials Find Harper Lee in Control of Decision to Publish Second Novel

4 April 2015

From The New York Times:

The lawyer for the author Harper Lee, Tonja B. Carter, received notice on Friday that an investigation by Alabama officials into whether Ms. Lee, 88, and confined to an assisted living facility, was manipulated into publishing a second novel has been closed and no evidence of abuse or neglect had been found.

Bobby Segall, a lawyer for Ms. Carter, confirmed receipt of the letter, which was dated April 1 and sent by the State Department of Human Resources, the agency that has led the inquiry into whether Ms. Lee was coerced into agreeing to publish a sequel to “To Kill a Mockingbird” this summer.

. . . .

Word of the state’s determination comes several weeks after an agency that assisted in the investigation, the Alabama Securities Commission, announced it had ended its role in the inquiry. The commission, among other things, tries to prevent financial fraud of the elderly.

At the time, the commission’s director, Joseph Borg, said his investigators had interviewed Ms. Lee and found “she has opinions and seems to be aware of what is going on with her book and the book deal.”

Link to the rest at The New York Times and thanks to Tom for the tip.

Amazon makes even temporary warehouse workers sign 18-month non-competes

30 March 2015

From The Verge:

Amazon is the country’s largest and most sophisticated online retailer, but it still runs largely on manual labor. Scattered around the country are massive warehouses staffed by workers who spend their days picking objects off shelves and putting them in boxes. During the holiday season, the company calls on a huge reserve army of temporary laborers.

The work is repetitive and physically demanding and can pay several dollars above minimum wage, yet Amazon is requiring these workers — even seasonal ones — to sign strict and far-reaching noncompete agreements. The Amazon contract, obtained by The Verge, requires employees to promise that they will not work at any company where they “directly or indirectly” support any good or service that competes with those they helped support at Amazon, for a year and a half after their brief stints at Amazon end. Of course, the company’s warehouses are the beating heart of Amazon’s online shopping empire, the extraordinary breadth of which has earned it the title of “the Everything Store,” so Amazon appears to be requiring temp workers to foreswear a sizable portion of the global economy in exchange for a several-months-long hourly warehouse gig.

. . . .

“Employee recognizes that the restrictions in this section 4 may significantly limit Employee’s future flexibility in many ways,” the agreement asserts, referencing the section containing the noncompete agreement and three other clauses. “Employee further recognizes that the geographic areas for many of Amazon’s products and services — and, by extension, the geographic areas applicable to certain restrictions in this Section 4 — are extremely broad and in many cases worldwide.”

The contract — which was obtained through applying and being accepted to a seasonal Amazon warehouse position — even includes a provision that requires employees who sign it to “disclose and provide a true and correct copy of this Agreement to any prospective new employer […] BEFORE accepting employment[…]”

. . . .

It’s unclear whether Amazon has attempted to enforce its noncompete contracts with hourly warehouse workers, and Amazon did not respond when asked about this by The Verge. But the company does have a history of aggressively pursuing such cases against white collar workers. Last year, after a former Amazon marketing manager took a job at Google, Amazon leveled a suit against him that was said to test the limits of noncompete law. The willingness of courts to validate such agreements can vary dramatically across states. But regardless of whether courts are willing to enforce them, noncompetes can still affect workers’ behavior.

. . . .

Courts are often reluctant to enforce noncompete agreements that cover the entire United States, let alone the whole world, according to Garden, who notes that the standard of “reasonableness” is the main legal test of the agreements. Yet different states have far different ideas of what counts as reasonable. (In an apparent nod to this, the Amazon contract stipulates that the signer consents that “each and every covenant and restraint in this Agreement is reasonable.”) California law bans the enforcement of noncompetes. Oregon, North Dakota, and Colorado have also enacted strict limits on noncompetes. “Then there are states like Texas and Florida and a bunch of others that are on the other end of the spectrum,” says Lobel, “that think of it as a simple contract issue, and if you sign the contract and you breach it then, well, you’ve breached the contract, and they’ll enforce it, and they’ll give injunctions quite easily.”

Link to the rest at The Verge and thanks to Jan for the tip.

PG says the story sounds a little weird and you can count him as skeptical.

In the first place, while the laws vary from state to state, most courts considering noncompete agreements tend to apply a reasonableness test when asked to enforce them.

It’s difficult for PG to envision very many judges enforcing an 18 month noncompete agreement against a temporary warehouse worker. It’s also difficult to believe that courts would enforce a noncompete agreement prohibiting a former low-level hourly employee from working for a competitor within a large geographical area for a low level worker. As a matter of public policy, most state governments aren’t trying to prevent their residents from being gainfully employed.

In one case PG remembers, Amazon sued in Washington to enforce a non-compete against one of its vice-presidents in the Amazon cloud business who went to work for Google’s cloud business. If PG’s recollection is correct, the court hearing the case reduced the time for the non-compete from 18 months to 3 months. If the vice-president had continued to work during the litigation, the three months would have almost certainly expired before the court handed down its decision.

As mentioned, non-compete agreements are illegal in California except in very narrow circumstances. If Google had moved the VP to California and he sued Amazon in California, it is almost certain a California court would have voided the non-compete agreement and barred Amazon from enforcing it.

Additionally, there’s the practical question involved in Amazon ever discovering that one of its former warehouse employees has started working for a competitor. If you’re an Amazon vice-president that starts working for a competitor, your profile is high enough so Amazon is likely to hear about the new job. If you move from an Amazon warehouse to a Wal-Mart warehouse, the chances of being discovered are minuscule.

PG says that blanket noncompete agreements for all employees are a really dumb idea in part because gaining a reputation for suing its former employees hurts a company when it is recruiting high-quality talent. Amazon usually doesn’t do dumb things, but maybe their employment lawyers are an exception.

Author Solutions’ Deceptive Practices

28 March 2015

The law firm that previously had filed a class-action suit against Penguin Random House subsidiary, Author Solutions, has announced that it has just filed a second class-action suit.

From Giskan Solotaroff Anderson & Stewart:

Giskan Solotaroff Anderson & Stewart has filed a class action suit against Author Solutions, a major self-publishing house owned by Penguin Random House. Unlike every other traditional publisher, Author Solutions seeks to make money FROM authors not FOR them.

Author Solutions preys upon the dreams of authors by selling them expensive services that sound exciting but do not actually sell any books. Their defense: They aren’t being deceptive because they aren’t trying to sell books. Of course, for nearly 200,000 authors who have paid thousands (if not tens of thousands) of dollars to buy expensive services that promised to promote their books, Author Solutions’s indifference to book sales comes as more than a bit of a surprise.

. . . .

Author Solutions also contracts with several traditional publishers (or “partners”) to create additional imprints, as listed below. This gives authors inflated hopes of being discovered by a traditional publisher, even though the services offered are the very same useless services performed by Author Solutions, only at a higher price. Many of the partners do not disclose Author Solutions’s participation in the partnership.

. . . .

Author Solutions deceptively markets its service in a number of ways. For instance, Authors Solutions has never analyzed whether these expensive “marketing services” help an author’s book sales. Second, it calls its team of telemarketers, largely based at a call center in the Philippines, “Publishing Consultants,” “Marketing Consultants,” or “Book Consultants” to give the impression that these employees have publishing or marketing experience and will guide the author through the process. In reality, these “consultants” are simply commissioned salespeople. None of this is disclosed to authors.

. . . .

To understand the actual value of these services it might be wise to look at the experience of someone who knows the system well. Author Solutions’s own Editorial Services Manager has published seven books with Author Solutions. Although he was certainly interested in book sales, he did not purchase a single marketing service from AS. Not a single one.

Link to the rest at Giskan Solotaroff Anderson & Stewart and thanks to Randall and many others for the tip.

Following is a copy of the Complaint filed in the second suit:

.


As Complaint (Text)

Conversations in Private Author Loops

27 March 2015

From author Courtney Milan via Smart Bitches, Trashy Books:

Courtney Milan says:

Look, there’s a reason I haven’t said much. I’m still untangling things. There are a lot of things that I need to untangle. I’m sorry that’s not convenient–I conveniently wish I could untangle this easily, too.

But here is one thread of about 45 tangled threads that I think I’m finally clear on: There is an intersection between Jane being on author loops and the lawsuit.

Everything that crosses Jane’s eye about Ellora’s Cave is discoverable by Tina Engler–someone who has allegedly inflated the 1099s of former editors who testified in the suit in retaliation for their testimony, an action that will cost them time and money to correct. A lot of authors–and I mean a LOT–are being very cautious about what they say because they don’t want to be retaliated against. I understand that worry and I’m not going to tell people to put their careers on the line when they’ve got a living to make.

Now we come to those private author loops. Because that’s where we do a lot of processing behind the scenes, including processing of the questions regarding the EC suit. On private author loops, authors have asked each other questions like this: Do I say something in public? Is it worth the risk? They still have six of my books, and they’re still paying me and I need that money to pay rent. Or, maybe the calculus goes, They haven’t paid me yet but I think they will and I can’t afford not to get it. I can’t speak up.

Ellora’s Cave is going to ask for discovery of any and all communications received by Jane in any form regarding Ellora’s Cave. If Jane was on any of those loops? That stuff is discoverable. Even if Jane as Jen didn’t respond or instigate the discussion. Even if she never used the information.

It is a huge risk to speak frankly in front of someone who may be compelled by court order to report your speech to the person you are talking about. There’s even the risk that, as a result of that speech, you may be compelled by subpoena to testify in court. These are risks that are vastly different in kind than the risks authors normally assume–and Jane spent six months on authors’ loops not disclosing that a court could compel her to put everything said in front of her about Ellora’s Cave in front of Tina Engler.

Link to the rest at Smart Bitches, Trashy Books and thanks to Phoenix and several others for the tip.

Here’s a link to Courtney Milan’s books

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