Legal Stuff

Harvard Loses Copyright Infringment Case Against Steve Elmo

25 May 2016

From Free Nampeyo:

The first entry in the Free Nampeyo blog discussed Harvard’s copyright infringement claims against Steve Elmore’s book In Search of Nampeyo: The Early Years 1875 – 1892.

. . . .

The subject of Harvard’s complaint was whether color illustrations of designs on old Hopi pottery held in the Keam collection at Harvard’s Peabody Museum violated the copyright to their black and white photographs of this pottery.  Mr. Elmore filed a motion for partial summary judgement against this claim, asking the judge to consider the law and the facts and make a ruling.  Harvard also filed a cross-motion for partial summary judgement concerning a photograph of a Kayenta or Tusayan jar that appeared on its website and also in Mr. Elmore’s book.  Both claims were decided by Judge Robert C. Brack of the United States District Court in Las Cruces, New Mexico.  Judge Brack’s ruling “Grants Defendant’s Motion for Partial Summary Judgement (Doc.92); and Denies Plaintiff’s Cross-Motion for Partial Summary Judgement that Elmore is liable for Copyright Infringement (Doc. 109). ”

. . . .

Determining whether copyright infringement has occurred can be a complex matter.  The decision depends on two basic factors.  The first is whether the underlying work is copyrightable at all and, if so, which elements of the work are subject to copyright.  The second is whether the work accused of infringing on the protected aspects of the underlying work in fact does infringe.

. . . .

Below is the photograph of the Kayenta or Tusayan jar that was the subject of Harvard’s cross-motion for partial summary judgement.  Judge Brack’s Opinion is that this is not a copyrightable photograph.

a1

Quoting from the Compendium of U. S. Copyright Practices, third edition “as with all copyrighted works, a photograph must have a sufficient amount of creative expression to be eligible for registration”.  A photograph should not be registered “if it is clear the the photographer merely used the camera to copy the source work without adding any creative expression to the photo”.   Judge Brack argues that this photograph is just such a case.  It was not taken as a study in photography or crafted by the photographer with carefully chosen lighting and background, but rather was a “conservation image” taken as part of a “condition assessment” while the jar rested on a surface with a bunch of other stuff visible behind it.

The second part of the Opinion is more complex.  It involves 41 illustrations created from designs visible in the black and white photographs of pottery that were published in the book Historic Hopi Ceramics (HHC). Below is a comparison of two of the black and white photographs and the illustrations created from them.

a1

First Judge Brack determined that, unlike the photograph of the Tusayan or Kayenta jar discussed above that is not copyrightable, the black and white photographs in HHC show “a minimal degree of creativity–if only a humble spark”.  Decisions were made to photograph each ceramic in the same way and to strip the backgrounds from each of the individual photographs “to emphasize the impact of the collection as a whole rather than the intricacies of each individual piece.”  However, just because a photograph is copyrightable does not mean that “every element of the work is protected….the less original the plaintiff’s work, the more the defendant must copy to infringe on the plaintiff’s copyright.”

Importantly. Judge Brack finds that the Native American designs on the pottery and the form of the pottery are not copyrightable elements of Harvard’s photographs: “Here the copyright of Historic Hopi Ceramics does not protect against copying the most prominent features in the works: the intricate pottery designs and forms achieved by a Hopi potter, perhaps Nampeyo.” (emphasis added).

Judge Brack notes that the protection of the HHC photographs is “incredibly limited” and only a verbatim copy would violate a copyright with such a small amount of creative input from the photographer.  He observes that Mr. Elmore’s illustrations highlight the designs, which are non-copyrightable elements, and switch the emphasis from the condition of the pots as a whole collection to these design elements.  The illustrations use line art and are in color.  They clean up and bring out elements of the designs, while eliminating aspects of the pottery itself, such as fire clouds.  Judge Brack writes: “Considering only the  protected elements in the Historic Hopi Ceramics photographs and Mr. Elmore’s images, reasonable minds could not find substantial similarity between the two.”

He also notes that Mr. Elmore picked individual ceramics to use in his illustrations and did his own arrangements of them, in order to emphasize comparison of the designs.  Mr. Elmore’s use of these ceramics to establish a novel thesis would give his work protection under the fair use doctrine.

Link to the rest at Free Nampeyo

PG says most judges see very few copyright infringement cases and sometimes the way such cases are handled feels a little loose. In this matter, however, in PG’s effervescently humble opinion, the judge seems to be doing a good job.

PG hopes that Harvard becomes increasingly humiliated if it continues this bizarre litigation. It was a terrible idea to bring the suit in the first place and, having so thoroughly lost the first round, the Peabody Museum should quit misspending its endowment by trying to interfere with Mr. Elmo’s labor of love in spreading knowledge of a little-known Hopi artist to a wider audience.

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Congress May Be About to Shake Up Trade Secret Law: Is That a Good Thing?

28 April 2016

From The Wall Street Journal:

Federal civil law governing intellectual property has long been a three-legged stool: copyrights, patents and trademarks. Unless it’s tabled, legislation advancing in Congress would add a fourth one: trade secrets.

Trade secrets are like patents, but without the strict criteria for novelty and usefulness and without an expiration date. They’re basically confidential, valuable information that gives a company a competitive edge. Famous examples are the precise formula for Coca-Cola and the algorithms that Google uses to sort and filter the Internet.

But a main difference between trade secrets and other areas of IP is how legal fights over them are decided. Trade secret disputes between companies, unlike the three other legs, are brought in state courts.

. . . .

The bill has been described as the “most significant expansion of federal law in intellectual property since the Lanham Act in 1946.”

The DTSA would allow companies to sue for trade-secret theft and pursue damages in federal courts. “The DTSA would require evidence of actual or threatened misappropriation before a court may issue an injunction to prevent it,”

. . . .

Here’s Covington & Burling LLP attorney Richard A. Hertling, testifying before Congress on behalf of another business advocacy coalition in 2014:

Civil trade secret laws originated at the state level, in an era when trade secret theft was largely a local matter. State trade secret laws work well when, for instance, an employee of a local business steals a customer list and takes it to the business down the street. For companies that operate across state and national borders and have their trade secrets threatened by competitors around the globe, the array of state laws is inefficient and inadequate…

The DTSA has a lot of political support but also some critics. Some IP experts say that there’s already a lot of uniformity in state law. The addition of a whole new law, one that would be combined but not replace state law, would stretch adjudication costs and time by giving plaintiffs another forum to take their complaints.

Link to the rest at The Wall Street Journal (Link may expire)

This legislation passed the House of Representatives almost unanimously yesterday and the President is expected to sign it.

Here’s the definition of a trade secret from the new legislation:

The DTSA broadly defines the term “trade secret” to mean “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—(A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the another person who can obtain economic value from the disclosure or use of the information.”  Although this definition is broad and certainly includes abstract ideas and laws of nature, it might not encompass information that is only stored in the human mind.

Link to more detail at Patently-O

Got that? Information “stored” in your mind might or might not be owned by someone else.

Tech companies have been using trade secrets for some time to discourage competing companies from hiring valuable employees.

While a business may be exposed to liability for misappropriation by the actions of its overzealous employees, the risk arises more frequently in the hiring process.  New employees with knowledge of a former employer’s trade secrets, for example, may expose the new employer to liability by using or disclosing secrets in the course of their employment.  It is not necessary that the new employee actually use or disclose a former employer’s trade secrets to expose a subsequent employer to liability.  An employer can be enjoined from hiring a new employee where it is “inevitable” that the employee will use or disclose a former employer’s trade secrets in the course of subsequent employment.

Link to more detail at Fairfield & Woods

While PG has perused the occasional confidentiality clause in publishing contracts, he has never seen explicit obligations placed on an author to keep trade secrets of a publisher safe.

Unfortunately, PG predicts this new legislation will catch the attention of counsel for publishers. More verbiage will be added to the contracts publishers want authors to sign. Perhaps by claiming royalty statements or emails from editors contain trade secrets, some publishers will seek another hammer to keep their authors barefoot and pregnant.

It is in the nature of major new laws that several years are required for trial and appellate courts to apply the broad legislative language to the particular facts of individual cases. Court opinions under state law protecting trade secrets may provide some guidance, but in the face of brand new statutory language, it will be easier to argue that definitions and principles developed under state law won’t apply.

This period of some uncertainty about what is and is not protected and/or permitted will give the holders of trade secrets (who usually have more resources than individuals who are employees or contractors) an additional hammer to wave in the direction of those individuals. Inevitably, more than a few companies will overreach. Trade secrets litigation is already expensive and will become more so in the near future.

And, yes, trade secrets laws do limit the First Amendment rights of individuals to freedom of expression, but this exception is well-established under cases arising from state trade secret laws.

SFWA Contracts Committee Alert

22 April 2016

From The Science Fiction and Fantasy Writers Association:

The SFWA Contracts Committee believes there are serious problems for writers with the non-compete and option clauses in many science fiction and fantasy publishers’ contracts. The non-compete language in these contracts often overreaches and limits authors’ career options in unacceptable ways. Writers may choose to bring out a range of books from different publishers — science fiction from one publisher and fantasy from another publisher, for example — and may have to do so in order to earn anything like a living wage.  The problem becomes even worse for hybrid authors who self-publish works in parallel with their traditional publications. Several contracts that we have seen include overlapping restrictions that could keep the author from publishing another book for more than a year.

Authors also retain audio, foreign language, and other rights with the intention of licensing them elsewhere. Language we have seen in these clauses attempts to make authors responsible for how these other rights are used, something that clearly places an unreasonable burden on them.

Authors should think carefully about signing any contract with these restrictive clauses and should negotiate any limitations in the clauses that would interfere with their writing agendas.  There are, in fact, times when it would be best to walk away from contracts with these bad clauses.

. . . .

Any limitation on the author’s ability to write new works at any time is unacceptable and should be deleted.

“Competing work” should be defined in the contract as clearly and narrowly as possible, and preferably limited to a work in the same series (whether one is planned or not). The burden should be on the publisher to prove that another work published elsewhere by the author would reduce their sales.

Any non-compete limitation that is tied to publication of the work covered by the contract should end on a specific date.

Any reference to the author diminishing the value of rights granted to the publisher by selling rights that the author retains should be eliminated as it is vague, unenforceable, and unacceptable.

Option clauses should be crossed out or defined as narrowly as possible. If the option clause can not be struck out entirely, the committee recommends that the author amend the clause so that they only need to submit a proposal or synopsis of a work and not the completed work to satisfy the publisher’s option. In addition, we recommend that the deadline for acceptance or rejection of the work should be no longer than 30 days, starting when the proposal is submitted. Rejection or failure to respond within the time specified should end the option obligation.

Link to the rest at SWFA and thanks to Deb for the tip.

PG says this is a good beginning to removing terrible clauses from publishing contracts. There are, however, many more “standard” provisions that also need to disappear or be substantially limited.

Proposed Settlement in Harlequin Class Action Suit

20 April 2016

A proposed settlement of the class-action suit by Harlequin authors against Harlequin for underpayment of royalties has been released.



HQ-Settlement (Text)

For more information, go to Harlequin Settlement and thanks to JoAnn for the tip.

Contract Basics (Contracts/Dealbreakers)

8 April 2016

From Kristine Kathryn Rusch:

I need to discuss the importance of contracts.

I know to some of you that sounds silly. Traditionally published writers expect to get a contract from their publisher. Hybrid writers expect the same thing, when they have a publisher other than themselves.

Indie writers often have no idea what contracts are or why they’re necessary.

In fact, all three groups rarely think about contracts at all.

. . . .

Over the years, I have become fascinated with writers’ attitudes towards contracts. Writers are so very cavalier about them. More than fifteen years ago, a former editor of mine (for a major traditional publishing house that has since vanished) told me that most writers she worked with looked at their 25-page traditional publishing contract like this:

The writer closely examined the lines covering the advance, and the advance’s payout schedule. The writer eyeballed the royalty rates, and the writer glanced at the deadlines.

That was it. Out of 25 pages, the writer looked at very little else.

I did not believe my editor. I really believed most writers were not that stupid.

I’m here to tell you now: she was right. Most writers are that stupid. Most writers pay no attention to their publishing contracts at all until some term bites them in the ass. Then the writer tries to figure out how to get out of it, not realizing that they got themselves into it by signing the contract without examining it.

. . . .

Writers in general—traditional, hybrid, and indie—do not respect their contracts. Writers don’t understand contracts, and rather than learning what a contract is and why it exists, writers let “their people” handle the contracts.

For generations now, “their people” are usually their agent and the employees of their agent, which, as you will see in future posts, is a truly terrible idea.

. . . .

Most writers expect someone else to generate a contract. Most writers want their traditional publisher or their agent or their service provider or their mortgage broker or whomever they’re in business with to provide them with a contract. Most writers have no clue that they can generate their own contracts.

Yes, you, traditional writers! You can go to your publisher with your own contract in hand. I personally know several writers who do this. That puts the contract negotiation phase on equal footing. The writer has their 10-page contract; the publisher has their 25-page contract.

The document the two end up with is neither of those contracts. It’s something unique to that particular negotiation, and probably won’t be replicated in the writer’s next negotiation with a different publisher.

There, traditional writers, did I just blow your minds? Because it certainly blew mine when I started editing over 25 years ago and some writers provided me with their standard contracts for short fiction. I didn’t know that was possible, because, at the time, I did not understand contracts or contract law.

. . . .

Contracts are extremely important. They define the relationship between the parties. Written contracts are the best, because each party can examine the terms, think them over, and decide whether or not those terms are acceptable.

You and I might discuss a proposed business plan over the phone. I might think we decided to have you do all the publishing work, from designing the covers of a book to writing cover copy, and you might think we decided that you would write the book and I would publish it. A simple misunderstanding that could happen in conversation would be solved if we had a written agreement.

With a written document, you can examine the terms and see if they’re feasible. But you must examine those terms before you accept the offer. Once you’ve accepted, the contract becomes binding.

It’s easier to take legal action over a broken contract if that contract is in writing. Taking legal action does not mean you have to go to court. You can have an attorney contact the other party, and let them know they are in breach of the contract. That’s very easy to do when the terms are spelled out.

I can’t tell you how many times I’ve taken part of a publishing contract and used that section to show the publisher that they were in breach of the contract.

Once someone is in breach, by the way, they usually have the right to cure. Meaning, if they do something wrong, they have the right to fix that problem within a reasonable amount of time.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like an author’s post, you can show your appreciation by checking out their books.

Self-Publishing Platforms Deemed Distributors, Not Publishers in Privacy Suit over Unauthorized Book Cover

2 April 2016

From The National Law Review:

We live in a world that has rapidly redefined and blurred the roles of the “creator” of content, as compared to the roles of the “publisher” and “distributor” of such content.  A recent case touches on some of the important legal issues associated with such change.  Among other things, the case illustrates the importance of service providers maintaining clear and appropriate terms and conditions that relate directly to the role they serve in the expression of content over online media.

The case involves a number of online self-publishing services. For those authors who have struggled to find a publisher or who would otherwise prefer to keep control of their IP rights in their books, there are many such businesses.  Such services allow authors to upload works and pay to transform those manuscripts into paperbacks via a print on demand model or make them available in ebook form for sale on the sites of major e-booksellers. Unlike a traditional publisher, however, self-publishing services do not fact check or edit materials (though, users may take advantage of unaffiliated paid services that do just that) and do not use a vetting process that might catch potentially defamatory or infringing content prior to publishing.  Indeed, beyond automated reviews for things like pornography or plagiarism, these platforms do not review submissions for content and rely on user agreements that contain certain contractual representations about the propriety of the uploaded content.

But what happens when a self-published book offered for sale contains content that may violate a third-party’s right of publicity or privacy rights? Should the self-publishing platforms be treated like traditional “publishers” or more like distributors or booksellers?

. . . .

The dispute began with the unauthorized publication of the plaintiffs’ engagement photograph on the cover of an erotic book authored by Greg McKenna (under a pseudonym).  The book was uploaded using several online self-publishing platforms and offered for sale on the major ebook sites (as well as being offered in paperback form via print-on-demand).  The alleged privacy violations were aggravated when the book was displayed in nationwide media, including in jokes on some late night TV talk shows.  Less than a month after publication, the author received a letter from plaintiffs’ counsel and contacted the ebook vendors to remove the offending book cover and replace it with a stock image.

The plaintiffs subsequently brought suit against the author McKenna and the self-publishing vendors used by the author (i.e., Amazon’s Kindle Digital Publishing, Barnes & Noble Nook Press and Smashwords), asserting right of publicity and invasion of privacy claims.  Liability against McKenna was sought based upon the allegation that he authored the work in question, and claims against the self-publishing vendors on the theory that they “published” the work.

. . . .

“For now, this Court will apply the old standards to the new technology, treating the [self-publishing vendors’] process as if it were next logical step after the photocopier. Just as Xerox would not be considered a publisher and held responsible for an invasion of privacy tort carried out with a photocopier, [the Defendants] will not be liable as publishers for the tort allegedly committed using their technology.”

Link to the rest at The National Law Review and thanks to Nirmala for the tip.

Dealbreakers/Contracts

1 April 2016

From Kristine Kathryn Rusch:

In 2012 and 2013, I published a series of blogs on contract deal breakers for traditionally published writers. I’ve been promising to update it for years now, but I’ll be honest: The very topic discourages me.

. . . .

I mentioned above that the topic of contracts discourages me. That’s one reason I’ve put the revision of deal breakers off for so very long.

I had hoped that contracts would improve. They haven’t. They’ve gotten worse. What has happened is that predictions long-time writers, like my husband Dean Wesley Smith, made have come true: Writers are starting to split into camps. Dean predicted two camps—those who published their books traditionally, and those who published indie.

Unfortunately, we’ve divided into three camps: those who publish traditionally, those who publish indie, and those who publish through their agents.

That last clause “through their agents” is so wrong, I have trouble typing it. The agents who still represent the writer as an agent are breaking the law when they publish a writer’s books. The agents are then becoming publishers, which makes them violate all kinds of agency law. Not literary agency law, which, anyone will tell you, does not exist in most states. Agency law, which governs anyone who calls themselves an agent—from real estate agents to insurance agents to literary agents.

. . . .

Most literary agents have no idea agency law even exists—at least, I hope they have no idea, because if they do, then they are flagrantly violating the law, instead of ignorantly violating the law. Me, I prefer the ignorant to the flagrant.

. . . .

Since huge conglomerates have taken over the big traditional publishers, no one even pretends at gentility any more. Smaller publishers which were often a dice-roll (some were great for writers; some were horrible for writers) are now as bad, or worse, than the Big Five. Much of this is economic—the economics of traditional publishing, done the old-fashioned way, isn’t working as well as it once did, so traditional publishers (large and small alike) are squeezing their writers like never before.

Most writers who publish traditionally can no longer make a living at writing. If those writers only write one novel per year, they definitely can no longer make a living at writing.

Most midlist writers are lucky to get an advance of $5000. Those advances are paid in three installments—signing, acceptance, and publication. Even being charitable and assuming that the advance is paid in the traditional two installments ($2500 each) or let’s be even more charitable, all at once, a writer can’t live on that kind of money.

The writer has to be able to write something else.

But most traditional publishing contracts —negotiated by agents —have some version of this clause:

The Work [the novel] shall be the Author’s next book-length work. The Author represents that there is no outstanding commitment for publication for the first time of another book-length work written or co-written by the Author to a third party and the Author will not offer rights to another book-length work written or co-written by the Author, or accept an offer for such a work, until acceptance of the Work by the Publishers and until the Author has complied with the option in Clause 3(a)

The option clause in most contracts is another problem, which options the author’s next work, and allows the publisher to take their own sweet time in deciding if they’ll buy the next work.

But note how pernicious this clause is. I took it from an existing contract that a writer sent me over a year ago. The only thing I changed was adding [the novel] for the sake of clarity. The rest is from the contract verbatim.

The contract is for a novel, yet this clause restricts book-length works. That includes nonfiction, short story collections, novellas, anything at book-length, which is not defined at all in the contract. So that means book-length could be anything the publishing company deems it to be.

. . . .

Usually, though, there is another clause, buried in the warranty, that says the author warrants he will not publish any other book-length work that will compete with this book. And who determines that competition? The publisher, of course. Certainly not the author.

So…for a measly $5000 (minus agent fees, which actually will make this $4250), the author signed away his right to make a living. In the early 1990s, I sold eight novels before my first one was published. I also sold an anthology that I edited, and I was editing a series of hardcover anthologies that we chose to call magazines.

If my first novel contract had had that clause, I could not have done any of those things. So, instead of earning tens of thousands of dollars in those early years, I would have been left with a check for $2125—and some crappy day job.

. . . .

For years now, Publishers Marketplace has tracked publishing deals on its website. Agents, in particular, love to report their really big coups to Publishers Marketplace. Publishers Marketplace divides the deals it reports into five categories, all by the amount of the advance.

PM defines “major deal” category—the largest advance category—as $500,000 and up. In the not-so-distant past, the major deal category was often for one book. If the agent secured a three-book deal that was $500,000 per book, the agent didn’t call that a major deal, because that wasn’t impressive. Someone might misinterpret and believe the agent got “only” $500,000 for all three books.

Instead, the agents would report a 3-book deal for $500,000 per book as a 1.5 million dollar deal.

I searched major deals this afternoon, and found quite a few. But when I looked at them, they were all for mid-six figures for a lot of books—usually a three-book deal, although I did see quite a few for five books, and one “major deal” for 11 books.

Believe me, if that 11-book deal had gone to seven figures, the agent on the deal would have said “In a deal worth one million dollars…” Didn’t happen.

In the past year, searching for fiction only, I found three deals listed as million-dollar deals. They include John Scalzi’s 10-year, 13-book, $3.4 million dollar deal (which comes to roughly $225,000 per book when you subtract agent fees). Only one of the three deals was for a single book, which sold for 1.25 million. The remaining deal was for over a million per book, and that was a $7 million 5-book deal (which comes to $1.4 million per book before agent) for a self-published writer whose books sold 1.2 million all on their own.

Three million-dollar fiction deals in 2015. Only three. And none yet in 2016. There were nine in 2014, and at least one per month in 2013. In 2012, there were at least two per month.

Why is this important? Because that home-run is less possible for everyone in traditional publishing, and they’re looking for other ways to make money. One of the ways they make money is squeezing writers. Another way is to own the copyright—or at least, control the copyright.

. . . .

And here’s the really scary part: Old contract terms, some written in the 20th century before ebooks existed, are being redefined and employed as a justification for publisher behavior. These traditional publishers—particularly those that have been subsumed into a major conglomerate—are not asking permission to change the definition of the terms. They’re just doing it.

Things that were pretty innocuous in 1985 are now weapons that are being used against authors.

You’d think that agents, who are supposed to work for the writers who hire them, would prevent this whole-sale change of meaning of old contracts. But a handful of agents are complicit in this, preferring to maintain their working relationship with a big publisher than rocking the boat for a small client.

Even more agents are just plain ignorant of what the changes in the clauses mean.

Those who run the agencies, though, do understand that their income is going down, so literary agencies have become pretty draconian in their own contracts. Those agencies make agreements with their authors, usually requiring the author to give them 15% of the earnings of a particular book if the agent sold the book. That’s bad enough, especially if the agent has been fired—as two of mine have (the two who still are entitled to 15% of certain projects).

But the agency agreements are moving into a whole new, and even uglier, place in relation to their writers. Agents are demanding a piece of their writers’ copyrights as well. Some agents are blatant about it, stating in the agency agreement that they make writers sign before the writer becomes a client, that the agent will own 15% of the copyright of any book the agent sells for the writer—or in the case of one agency, 15% of the copyright of any book the agent markets for the writer.

Other agency agreements are less blatant. You have to read them in conjunction with the contracts the agent has negotiated for the writer, to see that the agent has actually slipped his hand into the writer’s pocket and legally stolen copyright. Most writers trust their agents blindly, and never believe it would happen to them—until it happens to them.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like an author’s post, you can show your appreciation by checking out their books.

The problems Kris mentions are, unfortunately, not new and will be familiar to longtime visitors to TPV.

Some authors (or their lawyers) have had those clauses removed or defanged, but authors still sign “standard contracts” in the naive belief that if a contract is “standard” most other authors must have signed the same thing. Unfortunately, they can find the writing career they envisioned substantially constrained.

PG says if you want to be a professional author, act like a professional and make certain you understand the contracts you sign.

Harvard Sues Elmore, Gets Injunction Stopping Sales of

29 March 2016

From the Maine Antique Digest:

A lawsuit filed in federal court in New Mexico in June 2015 pits Harvard University, which has about a $37 billion endowment, against Steve Elmore, an antiques dealer who patched together $36,000 to self-publish a book. The suit may hinge on the definition of the word “manuscript.”

. . . .

In 2015 Elmore of Santa Fe, New Mexico, self-published a 217-page book, In Search of Nampeyo: The Early Years, 1875-1892. It was the culmination of decades of work and research. His publication was also the result of Elmore’s being rejected by the Peabody Museum Press, the publishing arm of the Peabody Museum of Archaeology and Ethnology at Harvard University.

In its suit, Harvard claims Elmore used photos he took in the Peabody Museum after signing an agreement that specified how he would use the photos and restricted their use. Elmore counters that Harvard released all its rights to the manuscript and wants to publish his decades of research without crediting him.

According to court documents, in August 2010 Elmore signed a contract with the Peabody Museum Press to write a manuscript on Nampeyo. The contract noted that the manuscript was subject to peer review and promised “potential publication,” and Elmore was paid $1500 to conduct research at the museum.

. . . .

“The first version of my manuscript was sent out for peer review, with two out of three reviewers recommending publication with revisions. The editor asked me to revise the book for the more scholarly ‘Peabody Museum Papers’ series. She asked me to explain my methodology and to link my work to art history, which I did. The new version of my manuscript, complete with my photos, took me another year and added 100 pages to my manuscript. In November 2013 I submitted this final version…and it was rejected with little comment in January 2014 by the Peabody Museum Press board of directors,” said Elmore.

The rejection letter’s language is the subject of dispute.

In a letter dated January 21, 2014, Joan Kathryn O’Donnell, director of the Peabody Museum Press, rejected Elmore’s manuscript because it was not a fit with the Peabody’s “editorial and publishing priorities and standards.” Elmore’s approach to the material, the letter said, was “inappropriate” for the Peabody’s scholarly publication series, and it quoted a board member who leveled a stark criticism. “We are an academic press, and this is not an academic book,” the unnamed board member said.

The rejection letter stated that the Peabody Museum Press was returning to Elmore “all rights in the manuscript…including all versions of the manuscript submitted to the Peabody Museum Press.” O’Donnell encouraged Elmore to publish elsewhere, even offering ten to 15 high-quality photographs and suggesting American Indian Art Magazine as a possible venue. “We tried very hard to make this project work,” O’Donnell lamented.

Elmore took O’Donnell’s advice but didn’t go the magazine route, and he didn’t accept the Peabody’s offer of photographs; he self-published the book through Spirit Bird Press, an entity he created.

. . . .

On December 10, 2015, a federal judge granted Harvard’s motion for an injunction, stopping Elmore from advertising, selling, and distributing his book. Elmore had already sold over 900 copies of the book that cost him $36,000 to produce, had a deal with Amazon.com in place, and had media kits ready to promote his book.Maine Antique Digest reviewed the book in the April 2015 issue.

Elmore is fighting back on two fronts: he’s filed a countersuit in federal court and launched legal action in a state court in New Mexico. His countersuit alleges breach of contract, breach of covenant of good faith and fair dealing, tortious interference with contractual relations, conversion, and more.

. . . .

In an e-mail to M.A.D., Elmore states his case. “Here’s my take on the Permission to Photo agreement. First, that agreement is Harvard’s attempt to strip photographers of their copyright of their work. The intention of the agreement is for Harvard to avoid U.S. Federal Copyright law and for Harvard to assert itself between the photographer and his own copyright, thus placing itself above the law. Right now, Harvard acknowledges I own the copyright to my photos, returned in the ‘all rights’ letter, yet insists I can’t publish them. What else does copyright mean? I’m not denying I signed the agreement, and I would not have published without their returning to me in writing from the Board ‘all rights’ etc. and ‘recommending’ I publish elsewhere.

. . . .

Harvard’s lawyers claim the injunction is necessary. “It is extremely important to the Museum to have control over and approval of any published photographs of its collections, because the quality of those photographs and the way they are presented reflect directly on the Museum, and either enhance or degrade its reputation.” Harvard claims that Elmore’s photographs are blurry, washed out, or inadequately lighted.

Link to the rest at Maine Antique Digest

The girl who stole my book: How Eilis O’Hanlon found out her crime novels were swiped by a stranger

29 March 2016

From Independent.ie:

Last October, I logged on to Twitter to find that I was now being followed by an account with the username @DonnaPatel. Something made me click on this particular link to see who it was. Call it intuition.

Donna Patel described herself as an “aspie” and “Potterhead”, and her most recent interaction had been with an Irish author calling herself “Joanne Clancy”.

Donna had been reading Clancy’s latest book, Tear Drop, a thriller about the hunt for a serial killer in Cork. At the time, it was the 111th biggest-selling e-book on Amazon’s UK division, and the number-one bestseller in Irish crime fiction, and Donna Patel had a simple question for the author: “Are you Ingrid Black?”

Next day, having received no reply to her message, Donna sent another tweet to the same account, saying: “Your book Tear Drop is The Dead by Ingrid Black.” Shortly afterwards, a third: “So you must be one of the authors behind Ingrid Black, or you are plagiarising.” Shortly afterwards, Joanne Clancy had deleted her account.

I found this exchange particularly interesting, and for a very good reason.

I am Ingrid Black.

One half of Ingrid Black, to be precise. She is a pseudonym, adopted more than 10 years ago for a joint crime-writing project between myself and my co-author and partner, Ian McConnell, and The Dead was our first book.

. . . .

By this time, however, the editor at Penguin who had championed the books had left for Australia, and, sadly, our new agent died. Feeling like we were back at square one, and not knowing how to start over, Ingrid Black slipped off the radar. In time, the books fell out of print and copyright reverted to us as the original authors.

At various points over the next few years, we toyed with the idea of releasing the Saxon stories as e-books. It seemed silly not to. They represented many years of work. Why not give them a new lease of life?

We set up a Twitter account in the name of Ingrid Black to prepare for publication. Our first tweet: “Now all I have to do is figure out how you put a book on Kindle, and I’ll be a millionaire by Christmas. That’s how it works, right?” Though, of course, it wasn’t done by that Christmas. Or the next one. Procrastination was our middle name.

We’d only sent six tweets and had less than 100 followers when, in October, we logged on to Twitter to see Donna Patel accuse Joanne Clancy of plagiarising The Dead.

. . . .

The first step was to find out if there was any truth to that allegation. Amazon’s summary of the book in question, which had been released in August 2015, certainly sounded familiar: “The serial killer known as Tear Drop vanished almost a decade ago, and nothing has been heard from him . . . until now. As death stalks the dark streets of Cork City, Detective Elizabeth Ireland must embark upon a frightening psychological journey to uncover the killer’s identity.”

Still, a blurb wasn’t conclusive proof; there are only a limited number of plots. So Ian and I downloaded a free sample and started reading Chapter One. The truth soon became apparent. Donna Patel was right.

Tear Drop wasn’t simply similar to The Dead.

It was The Dead. Everything about it was the same, from the plot to the protagonist’s sarcastic manner of speaking, to the jokes, to the very structure of the sentences and paragraphs.

. . . .

Once more, detail by detail, our book was being raided and filleted in front of my eyes. Tear Drop had been put together by someone who had The Dead open at the side of the keyboard as they typed.

I knew I had to read to the end. Gritting my teeth, I paid to download Tear Drop on to my Kindle. I didn’t have much doubt what I would find, but it was still a shock to find all my worst suspicions confirmed.

. . . .

Not only that, but it was doing well enough to be among the most downloaded books on Kindle at the time, and to be top of the charts in Ireland. It was also being widely, and enthusiastically, reviewed by fellow authors and crime-fiction fans, both on Amazon and elsewhere across the internet, many of whom were hailing it as Joanne Clancy’s best book to date.

“Personally, I really do not know how she came up with the superb storyline,” said one.

We did.

. . . .

Google searches discovered a few more facts about Joanne Clancy. There were a number of photographs purporting to be of her, which could be found online. She was listed on the professional networking site LinkedIn, where she was described as an “Amazon bestselling author and creative entrepreneur”. She had a Facebook page, which I bookmarked for later reference, but within 24 hours that, too, had been taken down.

. . . .

A few days after emailing the mysterious Joanne Clancy, I checked the email account we had set up for Iseult O’Malley and found that Clancy had replied to our fictional student: “Thanks a million for contacting me. My apologies for not replying sooner, but my website’s been having a few glitches, which have just been fixed.”

She agreed to an interview, but only by email, adding: “I look forward to hearing from you. Best wishes, Joanne.”

We began to feel almost bad for tricking her. This was one of the strangest aspects of the whole affair. What Joanne Clancy had done was devious, and yet, without knowing why she’d done it, it was hard to know how we felt about her. We kept changing our minds. What if she genuinely had no idea that she was doing anything wrong?

. . . .

Within hours of the publication of Insincere, we finally submitted a complaint to Amazon on the grounds of copyright infringement.

Link to the rest at Independent.ie and thanks to Craig for the tip.

On newspapers and ebooks, the Justice Department’s antitrust theory is obsolete

22 March 2016

From The Los Angeles Times:

Almost every antitrust case turns on the definition of the market at issue, whether by product or geographically: Is a monopoly threatened in the market for all passenger vehicles or only two-seater sports cars? Are we talking about detergent sales nationwide or only in Wyoming?

The Department of Justice’s lawsuit that effectively killed a bid by Tribune Publishing Co., owner of The Times, for the Orange County Register involved just such a distinction: The agency’s antitrust lawyers said Tribune’s takeover of the Register threatened to create a monopoly over English-language print newspapers in Orange County; Tribune’s response was that newspapers are no longer a relevant market by themselves, given competition for news consumers from TV, radio and the Internet.

. . . .

As Gabriel Kahn of USC’s Annenberg School for Communication and Journalism told my colleague Andrew Khouri, trying to create a monopoly in print newspapers is “the equivalent of cornering the market in horse-drawn buggies.”

. . . .

This isn’t the first time the Department of Justice has been accused of misreading the influence of new technologies in publishing. In 2012, the DOJ sued Apple and six book publishers for colluding to fix ebook prices. Many in the publishing industry thought the agency had picked exactly the wrong targets: The publishers had desperately sought a way to break the near monopoly in ebooks held by Amazon, which had attained 90% of the market by systematically selling ebooks below cost — in fact, at least one publisher had pleaded with the DOJ to file suit against Amazon. Apple’s offer to let the publishers set their own prices (within limits) on its iBookstore was a lifeline, they argued. They lost.

The danger in these cases is that the DOJ’s focus on promoting lower prices for newspaper readers and advertising or for ebooks could undermine the business models of publishers already eroded by technology. That could mean less news and fewer books. As media analyst Ken Doctor put it recently, “newspaper readers are today likely only to see their news coverage further diminished as likely collateral damage of DOJ’s attempt to represent the citizenry.”

. . . .

Amazon’s 90% share of the ebook market terrified the publishers, especially since the online merchant showed it wouldn’t be shy about pushing book publishers around. In 2010 Amazon removed the “buy” button from the online display of books from Macmillan, which was insisting on controlling the pricing of its ebooks. For months in 2014, a similar dispute provoked Amazon to make it hard for customers to order books from Hachette, the owner of Little, Brown and other imprints.

Amazon purchased books wholesale from the publishers and set its own retail price, typically a loss-leader $9.99. Publishers felt that price diminished the value of their hardcover sales and preferred to set their own ebook prices. There also were fears in the industry that Amazon’s pricing could put booksellers out of business, including even giant Barnes & Noble, which would be even worse for publishers. But individual publishers had almost no leverage with Amazon.

Enter Apple, which wished to create its own online bookstore for iPhone and iPad users. Apple’s deal with six major publishers allowed them to set their own ebook prices on the iBookstore, with Apple taking 30% of sales. But Apple didn’t want to be undercut by Amazon either, so it insisted on a “most favored nation” deal which allowed it to sell ebooks at the lowest price available from any other merchant online. That gave the publishers an incentive to present a united front to Amazon; most eventually achieved the right to set their own prices.

The publishers saw their effort as a blow against Amazon’s predatory pricing; to the Justice Department, resembled price fixing. Noting that the deal had helped cut Amazon’s share of the ebooks market to 60% from 90%, U.S. Appeals Judge Dennis Jacobs found that “Apple’s conduct … was unambiguously and overwhelmingly procompetitive.” But his finding was the lone dissent in a 2-1 ruling upholding trial court’s verdict in favor of the Justice Dept. Apple’s to the Supreme Court was turned down this month. It will have to pay $450 million in credits to customers who bought books on iBookstore at supposedly inflated prices.

Taken together, these cases show how technology is making a hash of markets that were reasonably stable for decades. Defining a market in antitrust cases was not always straightforward. But it can hardly have been as complicated as it is today, when an Orange County “newspaper” can serve readers anywhere in the world and a Google search can bring up local news items from dozens of sources. Lower prices today may look good for the consumer in the short term, but if they’re just the precursors of a world with less news or fewer book-buying choices, there’s trouble on the horizon.

Link to the rest at The Los Angeles Times

PG will note that many of the markets which have been “reasonably stable for decades” are markets where competition is constrained and consumer-friendly innovation is discouraged.

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