Legal Stuff

Publishers win landmark case against ebook pirates

27 May 2015

From The Financial Times:

British publishers have won their first ever blocking order against pirate ebook sites, as the battle over online copyright spreads beyond music and film.

A ruling by the High Court in London means that internet service providers, such as BT, Virgin Media and Sky, have 10 days to block access to the sites, which are hosted in Russia and the US.

The book industry has been less affected by piracy than music labels, thanks partly to the early development of a legal market in ebooks by Amazon. But piracy has nonetheless become a “huge issue” that is “particularly problematic in some genres, such as student textbooks”, researchers at Enders Analysis wrote last year.

. . . .

“Between them the sites purport to hold around 10,000,000 ebook titles and have been making substantial sums of money, primarily through referral fees and advertising,” said the Publishers Association, which represents publishers including Penguin Random House, part-owned by Pearson, parent company of the Financial Times. “None of this money has been going back to either the publisher or the author(s) of the works.”

 

Link to the rest at The Financial Times and thanks to Suzie for the tip.

FT is behind a paywall, but if the link doesn’t work you might try copying the title of this post (which is the title of the FT article) and pasting it into a Google search. That may give you a working link to the article.

JK Rowling Wins Apology And Damages From Daily Mail

22 May 2015

From The Huffington Post:

JK Rowling has been fully vindicated after a tabloid newspaper alleged she had composed a “sob story” about her time as a single mother, a High Court has heard.

A judge was told that the publisher of the Daily Mail has accepted the allegations were “completely false and indefensible”, published an apology and undertaken not to repeat them.

Associated Newspapers Ltd has also agreed to pay the creator of Harry Potter substantial damages, which she is donating to charity, and to contribute to her legal costs, said her lawyer.

Link to the rest at The Huffington Post and thanks to Brendan for the tip.

Will Author Solutions Case Go Class Action?

19 May 2015

From Publishers Weekly:

Federal judge Denise Cote could soon decide whether the ongoing case against self-publishing service provider Author Solutions will go forward as a class action. In the latest round of briefs, attorneys for the plaintiff authors argue that a common question sits at the core of the case, and merits action class status: “Did [Author Solutions] engage in a fraudulent scheme to sell authors worthless marketing services?” But in a reply motion filed last week, Author Solutions attorneys claim the case is without merit, and falls short of the requirements for class certification.

Notably, the latest round of briefs details an evolving case, including a “shifting roster” of author plaintiffs, and a narrowing of the case from the the initial complaint. First filed in spring of 2013, the initial suit alleged that Author Solutions misrepresents itself as an independent publisher, luring authors in, and then profiting from deceptive and fraudulent practices, including “delaying publication, publishing manuscripts with errors to generate fees, failing to pay royalties, and up-selling ‘worthless services’ to authors.”

. . . .

 At the heart of the case is an alleged “deceptive” scheme to lure authors in with promises of sales and marketing exposure, when the “primary goal” is not to sell books, the plaintiffs argue, but to “sell services and books back to authors.” In filings, attorneys for the authors paint a picture of Author Solutions “consultants” with little or no publishing experience, selling “worthless” services to unsuspecting authors. “[Author Solutions], as part of a company-wide policy, hides from consumers that it is a telemarketing operation,” plaintiff attorneys argue, “with no stake in the quality or retail success of its authors’ books.”

Link to the rest at Publishers Weekly

Dead to Rights

15 May 2015

From author Roxanne St. Claire:

About a dozen years ago, I had a conversation with a friend, and she shared a secret about an online “e-ffair” she was having with an ex.  Her story sparked the idea for a book about women who are tempted to connect with ex-lovers over the internet, something that was just coming into the social conscious at that time.  Classmates.com had just launched, but Facebook was in Mark Z’s imagination, and tweeting was still something birds did.  Email had become our main source of communication, along with a little technology we turned into a verb, as in “Let’s IM tonight.” (Instant Message, the precursor to texting.)

Hit Reply poured out of me, full of characters drawn from real life and my imagination, written entirely  in the epistolary form – all “letters” – only in this case it was emails and instant messages.  At the time, I had sold my first few romantic suspense titles and was very (very) slowly building my name in that genre.  But “chick lit” was hot, pink covers were everywhere, and Bridget Jones’ Diary was still very much the in the mainstream.  My publisher had  launched an imprint that I thought would make a good home for a story about friendship, exes, and major life changes.  They loved the concept and offered a contract, giving me a release date almost two years in the future.

. . . .

By the time that distant date came about and Hit Reply was released, chick lit was waning, and pink covers were verboten at Barnes & Noble and Borders.  I hoped for the best, but the “all email and IM” format didn’t grab attention, and neither did one of the most ill-conceived covers I personally have ever seen.  (Because everyone puts their wired mouse in their back pocket, right?)

Whatever, the book tanked.

. . . .

Fast forward (not really fast) ten years.  Forty-five books for me, several publishers, more agents than I’m proud to admit, and a healthy, sustaining career that has moved firmly and completely into indie publishing.  Still, Hit Reply is my personal favorite of all my titles, a book that truly came from my soul, and is dear to me.  It’s long out of print, but the publisher has kept it in Print on Demand for $18 for a paperback and (brace yourself) $16 for the ebook.  No surprise, it has sold four copies in the past year.

In my  burning desire to see this book published, I signed a contract that includes this line in the rights reversion clause:  “The book will be considered still in print as long it is available for purchase in any format, including electronic.”  This contract was signed in 2003.  And now, I can never, ever, ever have the rights back to my dear little book, at least not while I’m young enough to do something with them.

. . . .

It’s MY work.  They’re MY words.  These are MY characters who came from MY imagination and live in MY heart.  But, the publisher has informed me that they “don’t wish to revert THEIR rights.”  They’ve offered to do a special pricing for a short time if I would agree to promote the book.

Link to the rest at Roxanne St. Claire and thanks to Kristen for the tip.

Here’s a link to Roxanne St. Claire’s books

Major music association calls Grooveshark’s death an ‘important victory’ for artists

2 May 2015

From Business Insider:

Grooveshark was one of the first online services that let you play almost any song you wanted, on demand, with no restrictions.

It closed down Thursday and it won’t be coming back, according to a statement on the web site.

The site shut down as part of a legal settlement with copyright holders — the artist, publishers, and music labels who owned the rights to a lot of the music on the service.

. . . .

In its early days, a lot of the music on Grooveshark was not licensed. Users were uploading the songs, not the company itself, but that argument has been tested on other services, like Napster, and so far it’s never held legal water.

Link to the rest at Business Insider and thanks to Dennis for the tip.

‘A Gronking to Remember’ Becomes Memorable Lawsuit Against Amazon, Apple

29 April 2015

From The Hollywood Reporter:

A self-published erotic novella entitled Gronking to Remember could be on its way to highlighting the dangers of stripping out the middle-men.

Last year, pseudonymous author Lacey Noonan hit the big time by cleverly picking a title that alluded to the way that New England Patriots tight end Rob Gronkowski emphatically spiked a football whenever he scored a touchdown. The title was undoubtedly memorable — so much so that it got heated online attention and soon, mentions on The Tonight Show, Jimmy Kimmel Live! and other television shows.

The book took a detour from the best-seller list, though, when it was suddenly pulled by some online outlets.

. . . .

[T]he problem with the book might have been something else on the cover, as revealed in a lawsuit (read here) that was filed in Ohio by two anonymous individuals.

“The cover of the book contains a photograph of the Plaintiffs which was taken as part of their engagement journey leading toward their wedding,” states the complaint. “The photograph was appropriated by the Defendants for commercial gain without the permission of the Plaintiffs nor with the permission of any lawful copyright holder.”

The lawsuit targets Noonan, and also Apple, Amazon.com and Barnes & Noble for allowing readers to access the work in iBooks, Kindle and Nook digital formats. The plaintiffs — captioned as “John Roe” and “Jane Roe” — are asserting violations of their rights of publicity under Ohio law.

. . . .

“The subject matter of the book, A Gronking to Remember, is less than tasteful and is offensive,” says the complaint. “The use of the Plaintiffs image has held them up to ridicule and embarrassment. This outrageous connection has been further aggravated when the book, with the Plaintiffs image, has been reproduced in the media nationwide. The book has been shown as a source of ribald humor on The Tonight Show and Jimmy Kimmel Live as well as being displayed and read before the press at media day for the Super Bowl.”

The lawsuit was recently removed to a federal court and appears primed to answer the question of whether Section 230 of the Communication Decency Act can shield an e-book service from publicity rights claims. That statute enacted by Congress in 1996 states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

. . . .

But how about Apple allowing people to “self-publish” stuff through its iBooks store? Or Amazon.com allowing authors to “self-publish” works on Kindle stores? Are Apple and Amazon not “publishers”?

That’s what one of the defendants asserts.

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

PG says you need to get your photos for covers from reputable stock image suppliers.

Judge wants $10 million set aside for possible award in Fifty Shades lawsuit

28 April 2015

From the Fort Worth Star-Telegram:

A state district judge wants $10 million in cash or investments to be set aside for a potential award after a Tarrant County jury ruled earlier this year that an Arlington woman was cheated out of royalties from the blockbuster novel Fifty Shades of Grey.

. . . .

A Tarrant County jury in February ruled that Hayward defrauded Pedroza out of the financial windfall created by the erotic New York Times bestseller which also inspired a movie by the same name.

. . . .

Pedroza sued Hayward last year, contending that she conned her out of her rightful partnership interests in advances and royalties.

Pedroza and Hayward, who lived in Dural, a Sydney suburb, were partners in The Writer’s Coffee Shop, which started out as an online blog in 2009, along with Waxahachie resident Jennifer McGuire. Visitors to the fan-based website discussed books and wrote “fan fiction” stories.

McGuire did design work for the blog, Pedroza uploaded contributors’ writing, and Hayward worked with the authors, court records show. Later, Christa Beebe, another Arlington resident, joined and helped with marketing and distribution.

By 2010, Pedroza and Hayward had the Coffee House operating as a publishing house. And in 2011 it published Fifty Shades of Grey, a romance novel by E.L. James, a British author, as an e-book and print-on-demand full-length book.

The company published the sequels, Fifty Shades Darker and Fifty Shades Freed, in 2011 and 2012. The Fifty Shades of Grey trilogy became an online sensation, selling 250,000 copies through e-book and print-on-demand, with another 20,000 print copies.

In 2012, Random House made a deal with Hayward and James to publish the books. Pedroza received a one-time payment of $100,000 after the Random House contract was signed, but she was never told of the full terms of the transaction. Random House was not named in the lawsuit.

The lawsuit acknowledges that the two Texans — Pedroza and McGuire — and Hayward never signed a prepared partnership agreement. But in 2011, The Writer’s Coffee Shop filed a partnership income tax return, naming Pedroza as a general partner, it says.

Pedroza contended in her suit that Hayward in 2012 secretly converted the Coffee Shop into a company she alone owned. The jury determined that there was a partnership between the women. Beebe settled her claims in December in a confidential agreement.

Link to the rest at Fort Worth Star-Telegram and thanks to Suzan for the tip.

As a general proposition, if two or more people start and operate a business together, the presumption will be that they have created a partnership unless they have an agreement signed by everyone to the contrary. The presumption can be rebutted, but the individual(s) who don’t want a court to find that a partnership existed have the burden of proving the business was something other than a partnership, that a person was an employee, for example, and not a partner.

Absent evidence to the contrary, all persons who are partners are entitled to a share of partnership profits.

When there’s no partnership agreement, the way the business was run, who was paid how much, statements the parties made about the business, emails,  tax returns, etc., will be used to determine who is entitled to what percentage of partnership profits. The default presumption is that partners will divide partnership profits equally.

Partnership agreements can be very simple documents. However, without such an agreement, signed by everyone, resolving disputes over who gets the money can be very expensive.

Halt sales of Jonasson bestseller, court tells UK publisher

28 April 2015

From The Guardian:

The high court has ordered the British publisher of Jonas Jonasson’s smash-hit novel The 100-Year-Old Man Who Climbed Out of the Window and Disappearedto stop selling it, following an alleged failure to pay royalties.

Hesperus Press was ordered, after a hearing on 24 April, to cease publishing, printing and selling the English translation of Jonasson’s bestselling Swedish novel and to return copies to Hachette Book Group, which owns world English rights and which brought the legal action against the independent publisher.

“Following an action brought by Hachette Book Group against Hesperus in London, the English high court has issued an order confirming Hesperus’s undertaking to desist from selling or distributing an English translation of The 100-Year-Old Man,” said a spokesperson for Hachette.

The case follows a report in the trade magazine The Bookseller last week that, although Jonasson’s story of a man who runs away from his 100th birthday celebrations at his old people’s home had sold more than 500,000 print copies and 700,000 ebooks since it was published in English in July 2012, his agent Carina Brandt had said the author had seen only “a small amount” of royalty money in the autumn of 2012, and nothing since.

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

. . . .

Roma Tearne, a Sri Lanka-born novelist whose books have been shortlisted for the Costa and longlisted for the Orange prize in the past, released her new novel, The Last Pier, with Hesperus on 10 April. Set just before the second world war, it “vividly depicts the devastating impact of war on ordinary lives”, said the Independent, and “creates a palpable sense of some danger that’s lurking in the shadows”, but the novel is now facing obscurity with no staff to champion it.

“It took three years to get to publication, and I’d got a wonderful team at Hesperus who loved the book. It’s such a fragile thing, this book – it is getting fantastic reviews, but I just don’t know what the future is for it,” said Tearne. “The thing I want is that this book doesn’t die. It isn’t about the money. I went to a small publisher for the TLC, and I got it, so this is tragic. I found out as the publishing date was coming up. The editor was in tears telling me – they were terribly upset. My agent is now investigating. More than anything, I want the book to live.”

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

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

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