London Chef Elizabeth Haigh’s Cookbook Withdrawn After Plagiarism Allegations

From Eater London:

The worlds of London food and international cookbooks are rocking after far-reaching allegations of plagiarism by a highly regarded chef. Cookbook publisher Bloomsbury Absolute has withdrawn Makan, the debut cookbook by Mei Mei owner Elizabeth Haigh, after allegations of plagiarism from Sharon Wee, the author of Growing Up in a Nonya Kitchen, a cookbook memoir published by Marshall Cavendish in 2012.

Wee issued a statement on her Instagram on Thursday 7 October, saying that she had been “distressed to discover that certain recipes and other content from my book had been copied or paraphrased without my consent in Makan by Elizabeth Haigh, and I immediately brought this matter to the attention of the book’s publisher, Bloomsbury Absolute.” Wee’s book is set to be republished in November 2021.

Eater contacted Wee, Haigh, and Bloomsbury for comment. Wee told Eater that she cannot elaborate on her statement for legal reasons; a spokesperson for Haigh said, “Elizabeth Haigh is not able to answer your questions, for legal reasons.” Bloomsbury Absolute initially returned an out-of-office auto-reply, before pointing to a statement given to industry publication The Bookseller, which followed a report in the Daily Mail: “This title has been withdrawn due to rights issues.”

. . . .

The email then presented examples from both books side-by-side:

Wee:

“My mother, like many of her friends, placed their most frequently used condiments and ingredients within easy access while they cooked. That often meant a plastic tray . . . where there were small bottles of soy sauces, sesame oil, and jars of minced garlic, salt and sugar. In the past there would also have been a metal container to hold recycled cooking oil.”

Haigh:

“My mother . . . kept her most frequently used condiments and ingredients within easy reach of where she cooked. That often meant a plastic tray full of little jars of oils, crispy-fried shallots or garlic, crushed garlic, salt and sugar. There was also usually an old metal pot for recycled or discarded frying oil.”

Wee (on transcribing her mother’s recipes):

“It faced many challenges along the way. It first started with converting her handwritten recipe measurements from katis and tahils (old Chinese measurements) and learning the different daum (or herbs) and rempah (spice pastes).”

Haigh:

“It faced many challenges along the way. It first started with converting her handwritten recipe measurements . . . and learning the different daun (or herbs) and rempah (spice pastes).”

Wee:

“Ginger is thought to ‘pukol angin’ (beat the toxic gases and dampness out of you to relieve aches and pains). Hence, post-natal mothers were given lots of ginger to ‘beat the wind.’ In my case, a backache, especially in the winter, was often remedied with a knob of ginger, with the sliced surface dipped in brandy. The brandied ginger was used to rub my back and it left red streak marks, indicating the wind in my flesh and bones. It always worked.

The ginger flavour is strongest just beneath its skin. Therefore, leave the skin on to get the most of the flavour.”

Haigh:

“Ginger is thought to have healing properties – pukol angin (to beat the toxic gases and dampness out of you to relieve aches and pains). This is why postnatal mothers were given lots of ginger to ‘beat the wind’ . . . The strongest ginger is just beneath the skin, so to get the most flavour out of it don’t peel it.”

Further allegations followed, suggesting that recipes had been lifted from more than one source. Singaporean poet and critic Daryl Lim shared two Instagram posts detailing similarities between Makan and other recipes, from blogs and other cookbooks, as well as between Haigh’s book and Sharon Wee’s.

Link to the rest at Eater London

Are Recipes and Cookbooks Protected by Copyright?

From The Copyright Alliance:

Recently, the owner of a website that aimed to “fix online recipes” by removing ads and stories apologized and removed the website after receiving complaints via social media. While the website hoped to create an easier reading experience for visitors, the owner acknowledged that a great deal of time, money, and effort go into creating these recipes and the content that accompanies them.

Given the recent controversy, we thought this would be a good time to discuss the copyrightability of recipes. Can you copyright a recipe and, if so, which elements? What about copyright protection for cookbooks?

What Copyright Law Protects

Copyright law protects original works of authorship that are fixed in a tangible medium of expression. So, a work needs to be original, independently created by a human author, and possess at least some minimal degree of creativity while also being set in a sufficiently permanent form.

Recipes easily meet most of these requirements. For instance, they usually satisfy the “fixed in a tangible medium of expression” factor by being recorded in a cookbook or website or even on a piece of paper. They are also independently created by a human author — usually someone’s grandma, it would seem. However, despite meeting most of the requirements, standing alone, recipes are usually not protected by copyright.

Can You Copyright a Recipe?

Recipes are usually not protected by copyright due to the idea-expression dichotomy. The idea-expression dichotomy creates a dividing line between ideas, which are not protected by copyright law, and the expression of those ideas, which can be protected by copyright law.

There are rare times where the idea and the expression of the idea are so intertwined that there is only one way, or very few ways, to express the idea. When this is the case, that expression of the idea is not protected by copyright law. A recipe’s list of ingredients, or simple directions, is so intertwined with the idea of that recipe that there are very few ways to express this idea; so, a simple list of ingredients or simple directions will not usually be protected by copyright.

Based on this reasoning, the United States Copyright Office Compendium, the Office’s manual for examiners, states that a mere listing of ingredients or contents is not copyrightable, as lists are not protected by copyright law (chapter 314.4(F)). The Office has also stated that a “simple set of directions” is uncopyrightable.

In addition, courts have found that recipes are wholly factual and functional, and therefore uncopyrightable. As the Sixth Circuit described in Tomaydo-Tomahdo, LLC v. Vozary, “the list of ingredients is merely a factual statement, and as previously discussed, facts are not copyrightable. Furthermore, a recipe’s instructions, as functional directions, are statutorily excluded from copyright protection.”

Further, in Publications Int’l., Ltd. v. Meredith Corp., the Seventh Circuit explained that certain recipes may be copyrightable, as there is a difference between barebones recipes and those that “convey more than simply the directions for producing a certain dish.”

Recipes can be protected under copyright law if they are accompanied by “substantial literary expression.” This expression can be an explanation or detailed directions, which is likely why food and recipe bloggers often share stories and personal anecdotes alongside a recipe’s ingredients.

A recipe can also be protected by copyright law if it creatively describes or explains the cooking or baking process connected to the list of ingredients. Even if the description of the recipe is sufficiently creative and copyrightable, the copyright will not cover the recipe’s ingredient list, the underlying process for making the dish, or the resulting dish itself, which are all facts. It will only protect the expression of those facts. That means that someone can express the recipe in a different way — with different expression — and not infringe the recipe creator’s copyright.

Cookbooks Can Be Protected as Copyrightable Compilations

What about a compilation of recipes, like those found in a cookbook? A cookbook can be protected under copyright law as a compilation if the selection, arrangement, and coordination of the included recipes is creative.

The copyright for a compilation does not cover the individual works included in the compilation, such as the individual recipes within the cookbook.

Link to the rest at The Copyright Alliance

Even if it were possible to copyright recipes, the Guardian’s account indicates that the offended chef was not the creator of the recipes and that the chef transcribed her mother’s recipes:

It first started with converting her handwritten recipe measurements from katis and tahils (old Chinese measurements) and learning the different daum (or herbs) and rempah (spice pastes).”

PG claims no special expertise about UK copyright law, but some quick research on the UK Copyright Licensing Agency website indicates that recipes may not be copyrightable under UK law for the same rationale as applies to recipes under US law.

From The Guardian in 2006:

Can a recipe – as some of the world’s top restaurateurs and food experts are now asking – ever be considered intellectual property?

An altogether more complex dish has prompted this debate on the online food forum, eGullet, this week. The recipe, in brief: prawns are pureed using an enzyme called transglutiminase, extruded into a noodle, cooked, and served with smoked yoghurt, paprika and nori. Not the sort of meal that two chefs separated by 10,355 miles are likely to invent at the same time.

Still, identical versions of this dish did appear simultaneously on the websites of two cutting-edge restaurants – Melbourne’s Interlude, run by a 31-year-old British chef, Robin Wickens, a former student of Raymond Blanc; and Wylie Dufresne, head chef/owner of WD-50, a restaurant in New York’s trendy Lower East Side. The former, it quickly transpired, had copied the latter, without crediting the innovator. Interlude also appeared to have produced direct replicas of recipes from several other restaurants, leading to one eGullet poster to warn Wickens to prepare to be labelled a “fraud”.

Wickens told the Guardian that the near-identical dishes were a result of a research trip to WD-50 and said that, “At no time did I try and claim that I invented any of the dishes that I had experienced in the US and recreated at Interlude.”

“It might be a bloody cheek. But so what?” says restaurant reviewer Egon Ronay. “It goes on all the time. Chefs travel the world looking for dishes and try to imitate them in their own menus. That’s how good cooking spreads – it’s what food is all about. Frankly, in my view, it doesn’t matter a damn.”

Dufresne is reluctant to criticise Wickens, who recently sent him a letter of apology. Whatever his justification, Wickens has opened a pandora’s box. As an eGullet editorial put it: “We believe the Interlude controversy is not a simple matter of a lone Australian restaurant copying a few dishes from halfway around the world. Rather, it’s one of the most significant issues facing the global culinary community today.”

But can you copyright a recipe? Could Heston Blumenthal register his roast spiced cod with castelluccio lentils? Or St John’s Fergus Henderson his roast bone marrow with parsley salad? No, says Alex Papakyriacou, of intellectual property law firm Briffa. “Case law suggests that reproducing a written recipe in the preparation of a dish is not copyright infringement. The same goes for recipes that have been communicated aurally or by a chef deciphering the ingredients and method involved in the preparation of a recipe by sampling a dish prepared to it.”

Nor is it possible to patent a recipe, either in the UK or US, because the organic development of food will never constitute an “inventive step”. In short: you will never know definitively where your pizza or prawn noodle originated.

But if there is no legal basis crediting a dish, is there a moral incentive? “Only if it’s a signature dish by one of the very few truly original chefs in the world,” says Richard Corrigan, the chef owner of two of London’s top restaurants, Lindsay House and Bentley’s Oyster Bar and Grill. “Everyone has been robbed in the middle of London, it’s normal. But it doesn’t bother me; I’m sometimes tickled. Every restaurant in London is after my bread recipe, for example, and it’s not easy to keep it a secret.”

Link to the rest at The Guardian

Even if it were possible to copyright recipes, the Guardian’s account indicates that the offended chef was not the creator of the recipes and that the chef transcribed her mother’s recipes:

It first started with converting her handwritten recipe measurements from katis and tahils (old Chinese measurements) and learning the different daum (or herbs) and rempah (spice pastes).”

In her Instagram post decrying the use of these recipes, Ms. Wee wrote, “I wrote my book in loving memory of my mother. I credit her and her peers for their anecdotes, recipes and cooking tips. This was their story.”

PG suggests that this statement, if true, could be interpreted to mean that all sorts of people besides Ms. Wee’s mother used the recipes in her cookbook and even Ms. Wee’s mother was not the creator of the recipes which Ms. Wee wishes to take credit and prevent others from copying.

The fact that Ms. Wee was the first person to write down these recipes in English and publish them doesn’t make her any sort of a creator of the type that copyright laws are designed to protect.

To be clear, plagiarism may rightly be regarded as bad behavior, but unless the plagiarist violates copyright law, there’s no foul under US law.

Who Is the Bad Art Friend?

From The New York Times:

There is a sunny earnestness to Dawn Dorland, an un-self-conscious openness that endears her to some people and that others have found to be a little extra. Her friends call her a “feeler”: openhearted and eager, pressing to make connections with others even as, in many instances, she feels like an outsider. An essayist and aspiring novelist who has taught writing classes in Los Angeles, she is the sort of writer who, in one authorial mission statement, declares her faith in the power of fiction to “share truth,” to heal trauma, to build bridges. (“I’m compelled at funerals to shake hands with the dusty men who dig our graves,” she has written.) She is known for signing off her emails not with “All best” or “Sincerely,” but “Kindly.”

On June 24, 2015, a year after completing her M.F.A. in creative writing, Dorland did perhaps the kindest, most consequential thing she might ever do in her life. She donated one of her kidneys, and elected to do it in a slightly unusual and particularly altruistic way. As a so-called nondirected donation, her kidney was not meant for anyone in particular but instead was part of a donation chain, coordinated by surgeons to provide a kidney to a recipient who may otherwise have no other living donor. There was some risk with the procedure, of course, and a recovery to think about, and a one-kidney life to lead from that point forward. But in truth, Dorland, in her 30s at the time, had been wanting to do it for years. “As soon as I learned I could,” she told me recently, on the phone from her home in Los Angeles, where she and her husband were caring for their toddler son and elderly pit bull (and, in their spare time, volunteering at dog shelters and searching for adoptive families for feral cat litters). “It’s kind of like not overthinking love, you know?”

Several weeks before the surgery, Dorland decided to share her truth with others. She started a private Facebook group, inviting family and friends, including some fellow writers from GrubStreet, the Boston writing center where Dorland had spent many years learning her craft. After her surgery, she posted something to her group: a heartfelt letter she’d written to the final recipient of the surgical chain, whoever they may be.

. . . .

The procedure went well. By a stroke of luck, Dorland would even get to meet the recipient, an Orthodox Jewish man, and take photos with him and his family. In time, Dorland would start posting outside the private group to all of Facebook, celebrating her one-year “kidneyversary” and appearing as a UCLA Health Laker for a Day at the Staples Center to support live-organ donation. But just after the surgery, when she checked Facebook, Dorland noticed some people she’d invited into the group hadn’t seemed to react to any of her posts. On July 20, she wrote an email to one of them: a writer named Sonya Larson.

. . . .

When it comes to literary success, the stakes can be pretty low — a fellowship or residency here, a short story published there. But it seemed as if Larson was having the sort of writing life that Dorland once dreamed of having. After many years, Dorland, still teaching, had yet to be published. But to an extent that she once had a writing community, GrubStreet was it. And Larson was, she believed, a close friend.

Editors’ Picks

Over email, on July 21, 2015, Larson answered Dorland’s message with a chirpy reply — “How have you been, my dear?” Dorland replied with a rundown of her next writing residencies and workshops, and as casually as possible, asked: “I think you’re aware that I donated my kidney this summer. Right?”

Only then did Larson gush: “Ah, yes — I did see on Facebook that you donated your kidney. What a tremendous thing!”

Afterward, Dorland would wonder: If she really thought it was that great, why did she need reminding that it happened?

. . . .

They wouldn’t cross paths again until the following spring — a brief hello at A.W.P., the annual writing conference, where the subject of Dorland’s kidney went unmentioned. A month later, at the GrubStreet Muse conference in Boston, Dorland sensed something had shifted — not just with Larson but with various GrubStreet eminences, old friends and mentors of hers who also happened to be members of Larson’s writing group, the Chunky Monkeys. Barely anyone brought up what she’d done, even though everyone must have known she’d done it. “It was a little bit like, if you’ve been at a funeral and nobody wanted to talk about it — it just was strange to me,” she said. “I left that conference with this question: Do writers not care about my kidney donation? Which kind of confused me, because I thought I was in a community of service-oriented people.”

It didn’t take long for a clue to surface. On June 24, 2016, a Facebook friend of Dorland’s named Tom Meek commented on one of Dorland’s posts.

Sonya read a cool story about giving out a kidney. You came to my mind and I wondered if you were the source of inspiration?

Still impressed you did this.

Dorland was confused. A year earlier, Larson could hardly be bothered to talk about it. Now, at Trident bookstore in Boston, she’d apparently read from a new short story about that very subject. Meek had tagged Larson in his comment, so Dorland thought that Larson must have seen it. She waited for Larson to chime in — to say, “Oh, yes, I’d meant to tell you, Dawn!” or something like that — but there was nothing. Why would Sonya write about it, she wondered, and not tell her?

Six days later, she decided to ask her. Much as she had a year earlier, she sent Larson a friendly email, including one pointed request: “Hey, I heard you wrote a kidney-donation story. Cool! Can I read it?”

. . . .

Ten days later, Larson wrote back saying that yes, she was working on a story “about a woman who receives a kidney, partially inspired by how my imagination took off after learning of your own tremendous donation.” In her writing, she spun out a scenario based not on Dorland, she said, but on something else — themes that have always fascinated her. “I hope it doesn’t feel too weird for your gift to have inspired works of art,” Larson wrote.

Dorland wrote back within hours. She admitted to being “a little surprised,” especially “since we’re friends and you hadn’t mentioned it.” The next day, Larson replied, her tone a bit removed, stressing that her story was “not about you or your particular gift, but about narrative possibilities I began thinking about.”

But Dorland pressed on. “It’s the interpersonal layer that feels off to me, Sonya. … You seemed not to be aware of my donation until I pointed it out. But if you had already kicked off your fictional project at this time, well, I think your behavior is a little deceptive. At least, weird.”

Larson’s answer this time was even cooler. “Before this email exchange,” she wrote, “I hadn’t considered that my individual vocal support (or absence of it) was of much significance.”

Which, though it was shrouded in politesse, was a different point altogether. Who, Larson seemed to be saying, said we were such good friends?

For many years now, Dorland has been working on a sprawling novel, “Econoline,” which interweaves a knowing, present-day perspective with vivid, sometimes brutal but often romantic remembrances of an itinerant rural childhood. The van in the title is, she writes in a recent draft, “blue as a Ty-D-Bowl tablet. Bumbling on the highway, bulky and off-kilter, a junebug in the wind.” The family in the narrative survives on “government flour, canned juice and beans” and “ruler-long bricks of lard” that the father calls “commodities.”

Dorland is not shy about explaining how her past has afforded her a degree of moral clarity that others might not come by so easily. She was raised in near poverty in rural Iowa. Her parents moved around a lot, she told me, and the whole family lived under a stigma. One small consolation was the way her mother modeled a certain perverse self-reliance, rejecting the judgments of others. Another is how her turbulent youth has served as a wellspring for much of her writing. She made her way out of Iowa with a scholarship to Scripps College in California, followed by divinity school at Harvard. Unsure of what to do next, she worked day jobs in advertising in Boston while dabbling in workshops at the GrubStreet writing center. When she noticed classmates cooing over Marilynne Robinson’s novel “Housekeeping,” she picked up a copy. After inhaling its story of an eccentric small-town upbringing told with sensitive, all-seeing narration, she knew she wanted to become a writer.

At GrubStreet, Dorland eventually became one of several “teaching scholars” at the Muse conference, leading workshops on such topics as “Truth and Taboo: Writing Past Shame.” Dorland credits two members of the Chunky Monkeys group, Adam Stumacher and Chris Castellani, with advising her. But in hindsight, much of her GrubStreet experience is tied up with her memories of Sonya Larson. She thinks they first met at a one-off writing workshop Larson taught, though Larson, for her part, says she doesn’t remember this. Everybody at GrubStreet knew Larson — she was one of the popular, ever-present people who worked there. On nights out with other Grubbies, Dorland remembers Larson getting personal, confiding about an engagement, the death of someone she knew and plans to apply to M.F.A. programs — though Larson now says she shared such things widely. When a job at GrubStreet opened up, Larson encouraged her to apply. Even when she didn’t get it, everyone was so gracious about it, including Larson, that she felt included all the same.

Now, as she read these strained emails from Larson — about this story of a kidney donation; her kidney donation? — Dorland wondered if everyone at GrubStreet had been playing a different game, with rules she’d failed to grasp. On July 15, 2016, Dorland’s tone turned brittle, even wounded: “Here was a friend entrusting something to you, making herself vulnerable to you. At least, the conclusion I can draw from your responses is that I was mistaken to consider us the friends that I did.”

Larson didn’t answer right away. Three days later, Dorland took her frustrations to Facebook, in a blind item: “I discovered that a writer friend has based a short story on something momentous I did in my own life, without telling me or ever intending to tell me (another writer tipped me off).” Still nothing from Larson.

Dorland waited another day and then sent her another message both in a text and in an email: “I am still surprised that you didn’t care about my personal feelings. … I wish you’d given me the benefit of the doubt that I wouldn’t interfere.” Yet again, no response.

The next day, on July 20, she wrote again: “Am I correct that you do not want to make peace? Not hearing from you sends that message.”

Larson answered this time. “I see that you’re merely expressing real hurt, and for that I am truly sorry,” she wrote on July 21. But she also changed gears a little. “I myself have seen references to my own life in others’ fiction, and it certainly felt weird at first. But I maintain that they have a right to write about what they want — as do I, and as do you.”

Hurt feelings or not, Larson was articulating an ideal — a principle she felt she and all writers ought to live up to. “For me, honoring another’s artistic freedom is a gesture of friendship,” Larson wrote, “and of trust.”

. . . .

Larson and Dorland have each taken and taught enough writing workshops to know that artists, almost by definition, borrow from life. They transform real people and events into something invented, because what is the great subject of art — the only subject, really — if not life itself? This was part of why Larson seemed so unmoved by Dorland’s complaints. Anyone can be inspired by anything. And if you don’t like it, why not write about it yourself?

But to Dorland, this was more than just material. She’d become a public voice in the campaign for live-organ donation, and she felt some responsibility for representing the subject in just the right way. The potential for saving lives, after all, matters more than any story. And yes, this was also her own life — the crystallization of the most important aspects of her personality, from the traumas of her childhood to the transcending of those traumas today. Her proudest moment, she told me, hadn’t been the surgery itself, but making it past the psychological and other clearances required to qualify as a donor. “I didn’t do it in order to heal. I did it because I had healed — I thought.”

The writing world seemed more suspicious to her now. At around the time of her kidney donation, there was another writer, a published novelist, who announced a new book with a protagonist who, in its description, sounded to her an awful lot like the one in “Econoline” — not long after she shared sections of her work in progress with him. That author’s book hasn’t been published, and so Dorland has no way of knowing if she’d really been wronged, but this only added to her sense that the guard rails had fallen off the profession. Beyond unhindered free expression, Dorland thought, shouldn’t there be some ethics? “What do you think we owe one another as writers in community?” she would wonder in an email, several months later, to The Times’s “Dear Sugars” advice podcast. (The show never responded.) “How does a writer like me, not suited to jadedness, learn to trust again after artistic betrayal?”

. . . .

By summer’s end, she and Sonya had forged a fragile truce. “I value our relationship and I regret my part in these miscommunications and misunderstandings,” Larson wrote on Aug. 16, 2016. Not long after, Dorland Googled “kidney” and “Sonya Larson” and a link turned up.

The story was available on Audible — an audio version, put out by a small company called Plympton. Dorland’s dread returned. In July, Larson told her, “I’m still working on the story.” Now here it was, ready for purchase.

She went back and forth about it, but finally decided not to listen to “The Kindest.” When I asked her about it, she took her time parsing that decision. “What if I had listened,” she said, “and just got a bad feeling, and just felt exploited. What was I going to do with that? What was I going to do with those emotions? There was nothing I thought I could do.”

So she didn’t click. “I did what I thought was artistically and emotionally healthy,” she said. “And also, it’s kind of what she had asked me to do.”

Dorland could keep ‘‘The Kindest” out of her life for only so long. In August 2017, the print magazine American Short Fiction published the short story. She didn’t buy a copy. Then in June 2018, she saw that the magazine dropped its paywall for the story. The promo and opening essay on American Short Fiction’s home page had startled her: a photograph of Larson, side-by-side with a shot of the short-fiction titan Raymond Carver. The comparison does make a certain sense: In Carver’s story “Cathedral,” a blind man proves to have better powers of perception than a sighted one; in “The Kindest,” the white-savior kidney donor turns out to need as much salvation as the Asian American woman she helped. Still, seeing Larson anointed this way was, to say the least, destabilizing.

Then she started to read the story. She didn’t get far before stopping short. Early on, Rose, the donor, writes a letter to Chuntao, asking to meet her.

I myself know something of suffering, but from those experiences I’ve acquired both courage and perseverance. I’ve also learned to appreciate the hardship that others are going through, no matter how foreign. Whatever you’ve endured, remember that you are never alone. … As I prepared to make this donation, I drew strength from knowing that my recipient would get a second chance at life. I withstood the pain by imagining and rejoicing in YOU.

Here, to Dorland’s eye, was an echo of the letter she’d written to her own recipient — and posted on her private Facebook group — rejiggered and reworded, yet still, she believed, intrinsically hers. Dorland was amazed. It had been three years since she donated her kidney. Larson had all that time to launder the letter — to rewrite it drastically or remove it — and she hadn’t bothered.

She showed the story’s letter to her husband, Chris, who had until that point given Larson the benefit of the doubt.

“Oh,” he said.

Link to the rest at The New York Times (unfortunately, there is a paywall) and thanks to D for the tip.

Perhaps PG is feeling a little unfeeling today. He blames an approaching winter storm.

From a strictly legal standpoint, nobody owns a story. The first person who created a story that follows the boy meets girl, boy loses girl, boy gets girl (and all the various gender variations to the basic structure) doesn’t own the story structure.

Copyright only protects a particular expression of a story, not the ideas behind the story. For example, PG can easily recall multiple instantiations of the following structure:

  1. Heroine sets out on a quest to accomplish something important. The quest involves a journey.
  2. Heroine encounters multiple obstacles and setbacks during the journey, some of which seem almost impossible to overcome.
  3. Using strength, skill, brains, and perhaps, luck or divine assistance, heroine overcomes each obstacle and ends up triumphant in the end.

The Odyssey follows this pattern. So does the story of King Arthur’s quest for the Holy Grail, along with Bilbo Baggins in The Hobbit and The Lord of the Rings.

In the OP, Ms. Dorland was not the first person to face the emotional stress of donating a kidney, making a great sacrifice, or risking her life to help someone else, known or unknown.

For PG, Ms. Larson’s explanation, that she wrote a story “about a woman who receives a kidney, partially inspired by how my imagination took off after learning of your own tremendous donation” rings true and does not violate any exclusive right of Ms. Dorland to tell such a story. Whether Ms. Larson heard about Ms. Dorland’s experience directly from Ms. Dorland or from someone else is, for PG, immaterial.

To get a bit legalistic about the matter, if Ms. Dorland wished to make certain Ms. Larson didn’t use her experience to write a story, Ms. Dorland should have asked for Ms. Larson to keep the matter confidential at a minimum. Absent Ms. Larson’s agreement to keep the matter secret, for PG, even a request would not grant Ms. Dorland any sort of exclusive right to the story.

Perhaps if the two women had engaged in a lengthy series of exchanges that were clearly intended and understood to remain confidential and the kidney transplant story was part of this series of conversations, Ms. Dorland might have had some legitimate expectation concerning Ms. Larson’s keeping the matter confidential.

But perhaps PG has missed something in the OP that makes his opinions questionable. He’s happy to hear contrary views in the comments. If this is something only two women would understand (but a lot of pairs of women would understand the same way), PG is happy to be told of his male blindness as well.

Stranger in Parodies: Weird Al and the Law of Musical Satire

Why is PG posting this?

PG received a query from a non-client this morning asking about creating a parody of another work.

One of the things which wading through this excerpt from the original law review article published in 1990 (no, the excerpt isn’t close to being the whole thing) may convince the intelligent layperson that the law relating to the fair use exception to the protections included in US copyright law is that, while there may be some bright-line situations where fair use applies, where parody is involved, the decisions under copyright law tend to be a sea of gray.

A brief tutorial:

  1. Copyright is a federal law in the United States which means that the law applies across the United States regardless of state boundaries.
  2. Because copyright is a federal law, federal courts (as opposed to state courts) are where copyright law is litigated and determined.
  3. Federal District Courts are the first level of federal courts and hear all sorts of different cases that arise under federal law. (PG won’t discuss the diversity jurisdiction federal courts have. There is too much legal stuff in this post already.)
  4. If a litigant in a case heard and decided in a Federal District Court believes the federal judge made an error in the court’s decision, the litigant has the right to appeal the judge’s decision to the US Court of Appeals.
  5. There are thirteen different courts of appeal. There are also 13 different “Circuits” into which the courts of appeal are divided. The majority of the Circuits are geographical and handle appeals from the decisions of the Federal District Courts within their geographical boundaries.
  6. Those who read through this post will see two Courts of Appeal mentioned.
  7. The 2nd Circuit Court sits in New York City handles appeals from district courts located in Connecticut, New York, and Vermont.
  8. The 9th Circuit Court sits in courthouses located in San Francisco, Pasadena, Portland and Seattle and hears appeals from district courts in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Island, and Washington. As astute observers may have concluded, the boundaries of the 9th Circuit were set many, many years ago when the population in the Circuit was much, much smaller than it is today. The 9th Circuit has a great many judges.
  9. Lots of copyright cases are litigated in New York and California because New York has been the center of US print publishing for a long time and California has been the center of motion picture creation and ownership as well as the headquarters for a great many companies that create, market and sell music recordings. PG won’t go into federal jurisdiction and venue rules, but they point most of these cases to the federal courts in those two states. Each circuit court tends to think it’s smarter than any other circuit court, but they don’t always agree with each other.
  10. Theoretically, someone who’s dissatisfied with a decision from any circuit court can appeal that court’s decision to the US Supreme Court. However, setting aside appeals that the Supreme Court must hear (a small percentage of all Appeals Court cases), the Supreme Court is free to choose which appeals it accepts from people who aren’t happy with the way the 2nd and 9th Circuits decided their cases. Generally, the Supreme Court accepts 100-150 cases each year. The 9th Circuit decides 10,000-12,000 cases per year. The Supreme Court hears very few copyright cases, so the copyright action is in the Circuit Courts of Appeal.

End of Civics Lesson. PG will have some comments for whoever makes it to the bottom of this post.

From the Fordham Intellectual Property, Media and Entertainment Law Journal (1990):

Musical parody, both as folk art and high satire, has existed as a form of critical and humorous expression for centuries. Its popularity is evidenced by the humorous indulgences of musical giants the likes of Mozart, Gilbert and Sullivan, Spike Jones, and Allan Sherman. Not, however, until recording artist Weird Al Yankovic began making records and music videos like “Living With A Hernia”(sung to the tune of the hit “Living in America”) and “I Lost On Jeopardy” (sung to the melody of “Our Love’s in Jeopardy”), did the American music industry finally reawaken to the reality of just how lucrative music parody can be. In light of Mr. Yankovic’s startling commercial success (well over three million copies of his records have been sold), the issue arises whether such highly marketable song parodies represent “fair uses” of the lampooned underlying musical works, or whether the U.S. Copyright Act’ requires Weird Al and other aspiring musical parodists to secure licenses from the copyright owners of such works prior to plying their trade. This article will consider that question in light of the recent Ninth Circuit Court of Appeals decision in Fisher v. Dees, and the most recent rulings of the Second Circuit Court of Appeals, which have substantially clarified the fair use doctrine’s application to musical parodies.

A WORKING DEFINITION

Parody has been defined as “writing in which the language and style of [another] author or work is closely imitated for comic effect or ridicule, often with certain peculiarities greatly heightened or exaggerated.”‘ In order to be effective, therefore, a parody must draw upon elements of the original work. It has been said that “the parodist utterly fails in his task if his audience does not realize that his work has as its source another author’s work.”

Thus, there is an inherent tension between copyright law (which seeks to protect original works of authorship from infringement) and parody, the legal resolution of which historically rested on a judicial determination of the relative artistic merit and literary value of parody. This would seemingly have placed musical parodists in a particularly unfavorable position, since even a judge sensitive to the value of literary parody might view song parodies as frivolous and deserving of little protection. Interestingly, such has not been the case. To the contrary, musical copyright cases have formed the bedrock of the judicially authored doctrine of parody as “fair use” in the United States, and have served as the basis for that doctrine’s recent judicial expansion.

. . . .

U.S. PARODY DECISIONS

The first American case in which the issue of parody arose was Bloom and Hamlin v. Nixon. In that case, the defendant publicly performed portions of the plaintiff’s copyrighted song without license, as part of her impersonation of a popular actress currently performing the same song in the stage version of The Wizard of Oz. The court ruled in favor of the defendant under the “fair use” doctrine, noting that she acted in good faith by singing just the chorus of the song as an incidental aspect to her mimicry of the actress, and did not attempt to usurp the plaintiff’s market for his copyrighted song through such performances.’ Thus was the precedent established in the United States that parody is an art form deserving of protection, under certain circumstances, from zealous copyright owners seeking absolute control over the uses of their works.

A. The Second Circuit “New York” View

The Second Circuit view of parody has developed through a series of cases dating from the early part of this century, nearly all of which have involved musical satire. Within six years following the Nixon decision, district courts in the Second Circuit ruled on two cases with fact patterns nearly identical to it.

In Green v. Minzenheimer9 (S.D.N.Y. 1909), the defendant prevailed against a copyright owner portions of whose song the defendant had sung incidental to his impersonation of a popular singer. Consistently, it was ruled in Green v. Luby’ (C.C.N.Y. 1909) that the defendant’s use of an entire copyrighted song as part of an impersonation did constitute copyright infringement, since the taking of the whole song was “hardly required” for an effective impersonation.

The next important parody decision in the Second Circuit did not occur until 1963, with the Court of Appeals decision in Berlin v. E.C. Publications Inc. (The Mad Magazine Case). That case involved a suit by copyright owner Irving Berlin against Mad Magazine, which had published a book of parody lyrics to popular, copyrighted songs, many owned by the plaintiff. Mad Magazine did not reproduce the music or lyrics to any of the underlying copyrights, but simply noted next to each of the parodies the legend “to be sung to the tune of . . . ” followed by the title of the particular song involved in the lampoon. Examples of the Mad Magazine brand of humor included the parody “Louella Schwartz Describes Her Malady,” adapted to the tune of Berlin’s “A Pretty Girl Is Like A Melody.”

In affirming the district court’s ruling in favor of the defendant Mad Magazine, Circuit Judge Irving Kaufman stated “we believe that parody and satire are deserving of substantial freedom – both as entertainment and as a form of social and literary criticism.”‘ The court then adopted the two-tiered parody test first set forth in Nixon, focusing on the economic harm to the plaintiff and the substantiality of the defendant’s taking. Judge Kaufman wrote, “where, as here, it is clear that the parody has neither the intent nor the effect of fulfilling the demand for the original, and where the parodist does not appropriate a greater amount of the original work than is necessary to ‘recall or conjure up’ the object of his satire, a finding of infringement would be improper.”‘

The Mad Magazine Case was followed by Walt Disney Productions v. Mature Pictures Corp. (The Mouseketeer Case). In that case, the defendants had used the “Mickey Mouse March,” the theme from the Mickey Mouse Club television program, as background music in their pornographic film. The particular scene involved women performing sexual acts “on or near a pool table” with three men wearing nothing but “Mouseketeer” hats, the background music under which consisted of continuous, repetitive use of the entire Mouse March.

Relying mainly on the Mad Magazine Case, Judge Duffy ruled in favor of the plaintiffs, stating that the defendants had taken far more of the musical composition than was necessary to “recall or conjure up” the object of the satire, a finding of infringement would be improper.” Adding a new wrinkle to the Second Circuit parody test, however, he added that “[w]hile defendants may have been seeking in their display of bestiality to parody life, they did not parody the Mickey Mouse March but sought only to improperly use the copyrighted material.” Thus, Judge Duffy ruled that a parodist has less latitude in utilizing copyrighted music as a mere element of a larger parody than if the music itself was the object of
the satire.

(PG note: Whenever a judge uses the adjective, “mere”, you can easily fill in the remainder of the ruling.)

The Elsmere and Wilson Cases In 1980, the Second Circuit Court of Appeals ruled on the seminal case of E-emere Music, Inc. v. NBC, which concerned a parody of the New York State advertising theme “I Love New York” by the cast of the television show “Saturday Night Live” as “I Love Sodom.” The district court held that even though the defendants’ substantial taking consisted of the very heart of the plaintiff’s musical composition, it was still permissible as fair use since the bonafide social parody did not usurp the market of the original, or make more extensive use of the song than was necessary to conjure it up. Thus, the trial court recognized that song parodies, in particular, often require a substantial taking from the original in order to simply “conjure it up. “

The Court of Appeals (Circuit Judges Feinberg, Newman and Kearse) affirmed, taking the opportunity to further expand the fair use doctrine regarding parody. Stating that “in today’s world of often unrelieved solemnity, copyright law should be hospitable to the humor of parody,” the court commented on the “substantiality” issue as follows:

[The] [c]oncept of “conjuring up” an original came into the copyright law not as a limitation on how much of an original may be used, but as a recognition that parody frequently needs to be more than a fleeting evocation of an original in order to make its humorous point …. [A] parody is entitled at least to “conjure up” the original. Even more extensive use would still be fair use, provid[ed] [the] parody builds upon the original, using [the] original as [a] known element of modern culture and contributing something new for humorous effect or commentary.

This ruling represented a high water mark in the Second Circuit’s liberalization of parody as a fair use defense to copyright infringement.

. . . .

B. The Ninth Circuit “California” View

 The judicial history of parody in the Ninth Circuit has followed a confused route, with no cases involving musical satire having been decided until the 1986 ruling in Fisher v. Dees.5 4

 The Ninth Circuit view of parody had its genesis in two cases decided by District Judge James M. Carter months apart in 1955 –  Loew’s v. Columbia Broadcasting System, Inc. (the Jack Benny Case)” and Columbia Pictures v. National Broadcasting Co. (the Sid Caesar Case) – with incongruous results.

 In the Jack Benny case, decided first, Benny was found guilty of copyright infringement for parodying the film Gaslight on his television show. Judge Carter was extremely hostile to the idea that parody should be treated any differently than any other unauthorized taking, and ruled that because Benny took “substantial” portions of the underlying work, he had committed copyright infringement.

The Ninth Circuit Court of Appeals affirmed the lower court’s ruling based solely on the “substantiality” issue, stating “[tihe fact that a serious dramatic work is copied practically verbatim, and then presented with actors walking on their hands or other grotesqueries, does not avoid infringement …. .” In conclusion, the Appeals Court stated that “[o]ne cannot copy the substance of another’s work without infringing his copyright. A burlesque presentation of such a copy is no defense to an action for infringement. . .

Some months later, bowing to extreme criticism of his holding in Benny, Judge Carter announced a completely different parody test in the Sid Caesar case. Presented with nearly identical facts as in Benny (Caesar had parodied the film From Here To Eternity on his own “Your Show of Shows” television program), the Judge ruled that “[in historical burlesque a part of the content is used to conjure up, at least the general image, of the original. Some limited taking should be permitted under the doctrine of fair use, in the case of burlesque, to bring about this recalling or conjuring up of the original.”

Judge Carter did attempt to square the decision in the Caesar case with his opinion in Benny. He stated that “[u]nlike [the Benny case], here there was a taking of only sufficient [sic] to cause the viewer to recall and conjure up the original.”‘ Clearly, however, he was relying on the Court of Appeals to announce a firm rule for the Ninth Circuit, and went as far as apologizing for the brevity of his opinion due to his desire to “speed this case on its way to the Appellate Court.”

The Sid Caesar case never reached the Appellate Court, however, and so for twenty-three years, until Walt Disney Productions v. The Air Pirates 6 was decided by the Ninth Circuit Court of Appeals in 1979, the law of parody in that Circuit was at best vague.

In the Air Pirates case, the defendants had manufactured comicbooks which depicted accurately drawn Walt Disney cartoon characters such as Mickey Mouse, Minnie Mouse and Donald Duck engaging in sexual activities and using recreational drugs. Far from denying their “verbatim” copying, the defendants asserted that “the humorous effect of parody is best achieved when at first glance the material appears convincingly to be the original, and upon closer examination is discovered to be quite something else.”

District Judge Wollenberg flatly rejected the defendants’ argument, and ignoring Judge Carter’s repentance in the Sid Caesar case, relied on the Ninth Circuit opinion in Benny to hold that any substantial taking, regardless of its satirical nature, constitutes infringement.

On appeal, the Ninth Circuit affirmed judgement against the defendants, but limited the Benny case to a “threshold test” which forbids near verbatim copying (a test which the defendants failed). The Air Pirates Court also went on to adopt as a sec-ondary test the two-tiered conjure up/market usurpation test announced by the Second Circuit in the Mad Magazine case.

Ninth Circuit law on parody was less confused after the Air Pirates decision, but the Benny test had retained substantial validity as the Circuit’s parody litmus test. The Fisher v. Dees’ decision in 1986 finally established a comprehensive parody test for the Ninth Circuit, placing Benny in its proper context.

The Rick Dees Case


In the Rick Dees case, disc jockey Rick Dees recorded and released a comedy record album containing a parody of the copyrighted song “When Sunny Gets Blue” which he lampooned as “When Sonny Sniffs Glue.” The parody consisted of the first six bars of the original song (basically one half of the well known first verse), and ran for about twenty-nine seconds. Dees changed the lyrics from “When Sunny Gets Blue, her eyes get grey and cloudy, then the rain begins to fall” to “When Sonny sniffs glue, her eyes get red and bulgy, then her hair begins to fall.” The parody was also sung in a style mimicking the distinctive voice of Johnny Mathis, whose version of the original is the best known. At the conclusion of twenty-nine seconds, Dee’s recorded performance degenerates into laughter.
Prior to recording the album, Dees had applied to the plaintiff copyright owner for a license to do the parody, but was vehemently refused permission. The songwriters Marvin Fisher and Jack Segal sued Dees for infringement upon the recording’s release, but the district court granted summary judgment in favor of the defendants without opinion.

In a comprehensive and thoughtful appellate opinion, Judge Sneed, speaking for Judges Wallace and Kozinski, affirmed the district court’s decision.

The Dees opinion first affirmed the Circuit’s view that Congress, in enacting section 107 of the U.S. Copyright Act66 had in the legislative notes accompanying the section specifically enumerated “parody” as one of the examples of an activity subject to fair use. Thus, the court ruled, the four factors set forth as criteria for determining fair use in section 107 are to be applied in parody cases.6 7
Prior to commencing its fair use analysis, however, the court turned its attention to three allegations by the plaintiffs which asserted that the fair use defense was not available to the defendants.
First, Judge Sneed considered the plaintiff’s claim that since the parody was not directed at least in part at the plaintiff’s song, the fair use defense should be denied. Without rejecting the principle set forth in the Second Circuit’s decision in Wilson (adopted by the Ninth Circuit in Air Pirates) that there is no justification for conjuring up an original if it is not at least partly the target of the parody, Judge Sneed ruled that Dees’ parody was intended to poke fun at the song and Johnny Mathis’ singing style, and was not unrelated “to the song, its place and time.”
In their second allegation, plaintiffs asserted that Dees was barred from resorting to the fair use doctrine, which “presupposes good faith,” because he acted in bad faith by going ahead with the parody after the plaintiffs had denied him permission to do so.

In response, Judge Sneed ruled, as previously noted that: [tihe parody defense to copyright infringement exists precisely to make possible a use that generally cannot be bought …. Moreover, to consider Dees blameworthy because he asked permission would penalize him for this modest show of consideration … [which] we refuse to discourage ….

Finally, the court considered the plaintiff’s allegation that because Dees’ parody was “immoral,” it could not be protected by fair use. While refusing to decide whether or not an “obscene” or “immoral”
parody could be a fair use, the court ruled that although Dees’ parody was “silly” and “innocuous,” it was not obscene.

In its analysis of the first fair use factor, “the purpose and character of the use,” the court acknowledged the 1984 ruling by the U.S. Supreme Court in the Betamax case that “every commercial use of copyrighted material is presumptively… unfair. Judge Sneed noted, however, that when the parody is “more in the nature of an editorial or social commentary than … an attempt to capitalize financially on the plaintiff’s original work,”‘ the presumption may be overcome by the defendant if the parody does not unfairly diminish the economic value of the original.

The court, therefore, turned to analysis of the fourth fair use factor (“the effect of the use upon the potential market for or value of the copyrighted work”), taking note of the 1985 U.S. Supreme Court ruling in the Nation case that the fourth factor “is undoubtedly the single most important element of fair use.” Pointing out that this economic inquiry regards only whether the parody supplants and fills the demand of the original, not whether it diminishes the original’s market potential (“any bad review can have that effect”), Judge Sneed ruled that Dees’ twenty-nine second parody could not possibly be considered a threat to supplant the plaintiff’s famous love song.74 Consequently, the court ruled that factors one and four supported a finding of fair use.

The court then considered factor three – “the amount and substantiality of the taking” – which it noted had been the central focus of the Ninth Circuit in parody cases since Benny. After affirming that the Circuit still recognized that near-verbatim copying could not be fair use, Judge Sneed clarified that substantial copying is not necessarily
unfair in all circumstances. As such, he reformulated the “conjure up” standard announced in the Sid Caesar case to include the Second Circuit’s holding in Elsmere that conjuring up was the minimum measure of freedom extended to parodists.

Judge Sneed then devised a three prong test based on the holding in Air Pirates to judge whether a particular satirical taking is excessive. These three criteria, which incorporate the Copyright Act’s second fair use factor – “the nature of the copyrighted work,” are

(1) the degree of public recognition of the work,
(2) the ease of conjuring up the original work in the parodist’s chosen medium, and
(3) the focus of the parody.

In ruling that defendant Dees had not exceeded the fair use standard, Judge Sneed wrote: Like a speech, a song is difficult to parody effectively without exact or near-exact copying. If the would-be parodist varies the music
or meter of the original substantially, it simply will not be recognizable to the general audience. This ‘special need for accuracy’ provides some license for ‘closer’ parody.

In essence, therefore, Judge Sneed’s statement limits application of Benny in musical parody cases to only the most excessive examples of verbatim copying. Since application of all four fair use factors yielded a balance in favor of the defendant, the court ruled in favor of Dees.

Link to the rest at the Fordham Intellectual Property, Media and Entertainment Law Journal (1990)

PG’s comments (not legal opinions):

  1. If you publish a parody of a work produced by a large movie studio, a major publisher or a major music label, the chances of you being sued for copyright infringement are higher than they otherwise might be.
  2. While PG can’t say that no attorney will give the creator of a parody of a work created/published/distributed, etc., by a large media company a formal opinion about whether the parody is protected by Fair Use, PG suspects any attorney who is competent in the field will charge a great deal of money for such an opinion and that the opinion will include ten zillion qualifiers such that the opinion won’t provide a clear and understandable path for the creator of the parody.
  3. But PG could be wrong.
  4. If anyone has obtained such an opinion relating to the legality of a parody and is willing to share a copy with PG on a private basis, PG would love to see it.
  5. If anyone knows of an attorney who is willing to provide such opinions, PG would be interested in knowing who that attorney is.
  6. As usual, feel free to share comments, opinions, information, etc., in the comments to this post. If someone wishes to share anything with PG on a private basis (no attorney/client privilege, however), please click on the Contact PG button at the top of the blog.

What Do Fiction Writers Owe Their IRL Inspiration?

PG note: IRL = In Real Life

From Vulture:

Contemporary entertainment is a hall of mirrors, an endless flow of simulacra: reality shows, biopics, documentaries, Instagram posts, Youtube vlogs. Podcasts and docuseries and movies process the same real-life events (Tonya Harding, the O.J. trial, Theranos), responding to one another, building on one another, until the metanarrative is part of the entertainment. I guess it is no surprise, then, that our fictionalized characters have starting launching protests about how we’ve used them. A woman named Alexis Nowicki recently wrote a Slate essay outing herself as the inspiration for the viral short story “Cat Person,” and Amanda Knox, who was falsely accused of murder by Italian authorities, wrote an Atlantic article about a movie that (very) loosely transposes her story. Tom McCarthy, the director of Stillwater, did acknowledge in a Vanity Fair interview that his movie was “directly inspired” by Knox’s case. I still can’t decide if this was all marketing — McCarthy trying to stir up the true-crime audience and situate his film amid the flow of Amanda Knox content — or naiveté, an artist assuming that people will understand that inspiration is about the spark of an idea, not the act of appropriation.

It must first be noted that Stillwater bears little resemblance to Knox’s nightmarish story. She was a 20-year-old American exchange student in Italy when her roommate, a British student named Meredith Kercher, was gruesomely murdered. The police immediately focused on Amanda and her Italian boyfriend, despite virtually no evidence pointing to them. Another man was eventually arrested and convicted of the crime, but Knox was still churned through the Italian legal system for eight years. She was definitively cleared of murder charges in 2015, but not before she spent four years in an Italian prison, where she was sexually harassed and subject to psychological abuse. Her diary was stolen and pored over by the rabid press, which portrayed her as a nymphomaniac femme fatale who had convinced two men to murder Kercher as part of a demented sex game.

Stillwater takes place not in Italy but in France, and the American exchange student, Allison Baker (played by Abigail Breslin), is not from a nice, working-class family in Seattle, like Knox, but a poor and chaotic home in Stillwater, Oklahoma, where she was raised by her grandmother because her father was a drug addict and her mother died by suicide. Allison is convicted of murdering her ex-girlfriend, a French Muslim girl, but insists that a mysterious man named Hakim committed the crime. The film takes place five years after her conviction, as her father, Bill (played by Matt Damon), who has cleaned up and is trying, belatedly and disastrously, to be in his daughter’s life, takes on the task of tracking down Hakim.

Knox was understandably angry that McCarthy used her case as shorthand to sell a movie that has little to do with her. She wrote a series of tweets that she spun into an essay for The Atlantic, venting her frustration at the way her name is used without her consent: the “Amanda Knox saga” or, worse, “the sordid Amanda Knox saga.” “I never asked to become a public person,” Knox writes, but she acknowledges, “My name, my face, my story have effectively entered the public imagination. I am legally considered a public figure, and that leaves me little recourse to combat depictions of me that are harmful and untrue.” After years of Italian authorities and the tabloid media creating fanciful and grotesque stories about her, Knox is weary of being made a subject of fiction.

Knox’s public vendetta against Stillwater may also be a matter of practical survival. As a best-selling author and true-crime podcaster, she is eager to maintain her hold on her story for both her dignity and her brand, which is her only source of income. The Vanity Fair article in which McCarthy discusses Stillwater ends, for some reason, with a rundown of the personal and legal debts that Knox and her family incurred during her trials, which reportedly ate up all of her nearly $4 million book deal. In a vast and lucrative true-crime media landscape on podcasts and streaming TV, big cases may appear like proprietary brands, but they are in fact public property. The “Amanda Knox case” does not belong to Amanda Knox, which seems to be the major source of her frustration: that she has neither the sole right to tell her story nor the exclusive right to profit off of it.

Link to the rest at Vulture

PG will spare long-suffering visitors to TPV yet another rant, but he doesn’t agree with the whole “appropriation” argument as it is used in a variety of settings.

He takes a very legal approach to his thinking. If something newsworthy happens that the newspapers and other news outlets can write and feature, its in the public sphere. At that point, anybody can pretty much do whatever they want with the story, particularly if they create a work of fiction that doesn’ t use a victim’s or key participant’s real name.

For PG, the key sentence in the OP (if it is correct), encapsulates the legal justification, “It must first be noted that Stillwater bears little resemblance to Knox’s nightmarish story.”

Save Our Books campaign

UK authors, illustrators protest mooted copyright changes

From Books+Publishing:

In the UK, over 2600 authors and illustrators have signed an open letter to protest the government’s reconsideration of copyright and trade laws, reports Publishing Perspectives.

The letter comes after publishing industry organisations launched the Save our Books campaign in June, protesting the mooted changes to copyright laws which they claim would lead to a flood of cheap copies of UK books coming back into the home market.

Signatories to the letter, which was published as an open letter to the editor in the Sunday Times, include Hilary Mantel, Kazuo Ishiguro, Philip Pullman, Maggie O’Farrell and Bernardine Evaristo.

‘The Intellectual Property Office is currently consulting on the UK’s future exhaustion regime,’ the letter reads. ‘If they decide to introduce an international exhaustion framework, authors will be unable to limit foreign editions of their books being sold into the UK—undercutting their domestic sales.’

In a statement, Publishers Association CEO Stephen Lotinga said the letter ‘is a clear and urgent call from authors to avoid an outcome that weakens our copyright laws’.

‘Britain is a world leader in publishing and currently exports more books than any other country in the world,’ said Lotinga. ‘The wrong outcome would jeopardize the whole books industry and vandalize the UK’s cultural landscape. It would mean fewer books, by fewer authors, for fewer readers.’

Prior to Brexit, the UK fell under the EU’s copyright agreement, meaning books could be sold freely in Europe but not reimported to the domestic market. The Intellectual Property Office has since launched a consultation ‘which considers a weakening of copyright rules crucial for exporting books around the world and ensuring that UK authors benefit financially from the sales’. Author royalties on export sales are much lower than in the UK market, so if authors can’t prevent their copies from around the world being sold back into the UK, export sales risk eroding domestic sales.

Link to the rest at Books+Publishing

Save Our Books campaign launches – June 2021

From the Publishers Association:

An alliance of organisations has launched the Save Our Books campaign in the face of a potentially devastating change to the UK’s copyright laws which could result in fewer books, by fewer authors, for fewer readers.

Save Our Books is a joint campaign from the Publishers Association, the Society of Authors, the Association of Authors’ Agents and the Authors’ Licensing and Collecting Society.

The government is reconsidering the UK’s approach to copyright and trade following Brexit. The Intellectual Property Office launched a consultation today (Monday 7th June 2021) which considers a weakening of copyright rules crucial for exporting books around the world and ensuring UK authors benefit financially from those sales.

Changing the way these rules, known as ‘copyright exhaustion’, work would present serious dangers for the health of the books industry, including: 

  • Significantly impacting authors’ livelihoods. Author royalties on export sales are much lower than what authors can earn from UK sales of books published for the UK market. If authors cannot prevent their copies from around the world being sold back into the UK, then an export sale risks eroding the corresponding domestic sale. Approximately two-thirds of authors’ incomes could be at risk on the sale of a book in this scenario. This would threaten the sustainability and diversity of UK authorship.
  • Destroying creative export markets. The potential loss of up to 25% of the UK publishing industry’s revenue – almost £1bn – which would harm investment and could lead to publishing job losses.
  • Damaging the already suffering British high street and further supporting online retail giants.

For the continued success of the publishing industry, the UK must ensure authors and publishers have control over the resale of their global products. The government must avoid an ‘international exhaustion framework’ and find a solution that allows UK authors and publishers to ensure different markets can access versions of a book best suited to their needs.

Link to the rest at Publishers Association

A bit more explanation in the event some visitors to TPV aren’t certain what this is all about.

  1. In the US (and many other countries), the author of a book (or creator of a painting, etc.) may, under copyright law, prevent anyone from making, printing, selling, etc., the book without the author’s permission.
  2. If the author publishes a printed book, either directly or through a publisher, and offers it for sale, the author receives some or all of the price a reader pays to purchase the book. This is the “First Sale” of the book.
  3. Under US law, after the First Sale of the physical book, the purchaser can do whatever he/she wants with that physical copy, including reselling it as a used book, to anyone else without any obligation to make any further royalty payment to the author.
  4. The term, “copyright exhaustion” is used to describe this limited right to control/be compensated for the first sale of the book. Under copyright law author has no further control over or right to receive payment from future sales of that copy of the book. This doesn’t mean that someone who purchases a physical book can make copies of the book to resell or anything like that. The author’s copyright is “exhausted” only for that particular copy of the book.
  5. Thus, when a used bookstore resells a physical book that has been sold or given to the store, neither the author or the publisher receives any additional payment for this “second sale”.

(Note: Ebooks are licensed, not sold. The license agreement could effectively control this sort of problem for ebooks without all the issues involved with printed books. Most ebook, software, etc., licenses prohibit transfer, resale, etc.)

Based upon the two articles PG has read concerning the problem described in the OP, the problem seems to be that, if proposed changes are made in British copyright law, new physical British books sold to buyers other countries (European) could then be sent back to Britain as new books and sold without the author receiving the much higher royalties he/she would normally receive from the sale of a new physical book in Britain.

As a hypothetical example, a shipload of new books could be sent across the English Channel to France to a French buyer (generating a much smaller export royalty for the author), then sent right back to Britain and sold as new books (boxes never opened, in exactly the same condition they were when they left the printer) without the author receiving the much higher royalties that would have resulted if the publisher had sold the books to British book distributors and British bookstores before the round-trip to France and back.

(PG notes that the previous paragraph definitely qualifies as a run-on sentence for which one of PG’s beloved elementary school teachers, Mrs. Lascelles, would have lowered PG’s grade.)

Are Fictional Characters Protected Under Copyright Law?

From Jane Friedman:

Jack Ryan, the analytical, yet charming CIA analyst, made an appearance in federal court in Maryland earlier this year. The heirs to Tom Clancy’s literary legacy are fighting over him. Unlike in the movies, he’s not in a great position to fight back.

It all started when Clancy signed the publishing deal for The Hunt for Red October where Jack Ryan made his debut in 1984. In a departure from common practice, Clancy transferred his copyright in Red October to the publisher. A few years later, Clancy realized his mistake and was able to negotiate return of the copyright for the book. He immediately transferred the reverted copyright to his company.

Here’s the crux of the current court battle: When Clancy mistakenly transferred his copyright in the book Red October to the original publisher, did the copyright to the character Jack Ryan go with it? Or did Clancy retain the character copyright? In normal practice, the sale of the right to publish a copyrighted story does not stop the author from using its characters in future works.

If Clancy retained the rights to the character when he signed the initial publishing contract, then the rights that reverted from the publisher would not have included the copyright for the character. The reverted rights Clancy turned around and transferred into his company would not have included the character rights. All of which means that the character, Jack Ryan, is part of Clancy’s estate and not controlled by the company he set up.

Jack Ryan is a valuable character with his own copyright separate from the copyright in the book. Everybody concerned, the owners of the company and the heirs to the estate, wants a piece of him, or all of him. And it’s not clear where Mr. Ryan currently resides.

Fictional characters are not listed in the copyright statute as a separate class of protectable work. There’s no application at the Copyright Office for them. But over the years, the law on character protection has evolved.

. . . .

This is important because characters with independent copyright can be licensed separately from the stories in which they originally appeared. It’s another way for authors to divide their rights to create multiple income streams. That’s the beauty of copyright. It’s divisible. An author can keep some rights and license others. It’s what Clancy did and his company/estate is still doing with the Jack Ryan franchise.

Not every character can be protected by copyright. Stock characters cannot be protected—a drunken old bum, a slippery snake oil salesman, a hooker with a heart of gold, a wicked stepmother, a gypsy fortune teller, and so on. They are essentially ideas for characters, vague and lightly sketched. Copyright does not give anyone a monopoly on ideas. Protecting stock characters would prevent as yet untold stories from being told. Depriving the world of new stories is exactly the opposite of what copyright is intended to promote—the creation of more stories, more art.

. . . .

Public domain characters cannot be protected

But new characters created from public domain works can be protected. Consider Enola Holmes, the younger sister of Sherlock. The Sherlock Holmes stories have been slipping into the public domain for years now, to the chagrin of the estate of Arthur Conan Doyle. The creative elements of Sherlock Holmes stories that are in the public domain can be used by others to build new stories.

Enola Holmes was introduced to readers in a series of young adult books written by Nancy Springer. Enola does not exist in the Conan Doyle canon; she was created by Springer. She has distinctive traits (high intelligence, keen observational skills and insight, skills in archery, fencing, and martial arts, an independent thinker who defies Victorian norms for women) that combine to make her well delineated and protectable.

. . . .

The “well delineated character” is the most widely accepted legal test used to decide whether a fictional character is protected by copyright, but it is not the only one. The other is “the story being told” test. Sam Spade is responsible for this test.

Dashiell Hammett created Sam Spade when he wrote The Maltese Falcon. Hammett licensed the exclusive rights to use the book in movies, radio, and television to Warner Brothers. Hammett later wrote other stories with Sam Spade. Warner Bros. complained that it owned exclusive rights to the character and Hammett couldn’t write about him anymore.

Ironically, the court protected Hammett’s right as the creator to use Sam Spade in future stories by deciding that the character was not protected by copyright. Sam Spade is just a vehicle for telling the story and is not the story itself. He is the chessman in the game of telling the story. It was the story that was licensed to Warner Bros., not the chessman.

A character is protected under the “story being told” test when he dominates the story in a way that there would be no story without him. This test sets a high bar for character protection. To protect the character, the story would essentially have to be a character study. The Maltese Falcon is not a character study of Sam Spade.

An example of character protection using the “story being told test” is the Rocky franchise. A screenwriter wrote a story on spec using the characters Rocky, Adrian, Apollo Creed, and Paulie. The work was considered to be an infringing use of the characters. The characters were protected because the movies focused on the characters and their relationships, not on intricate plot or story lines. The characters were the story being told. The writer could not avoid the infringement touchpoint of substantial similarity when he took the characters and used them in a new storyline.

Link to the rest at Jane Friedman

PG is not entirely satisfied with the OP.

He’ll provide a couple of additional items to demonstrate that court cases aren’t quite as definitive as non-lawyers might conclude from reading the OP. After the lengthy excerpts below, PG will briefly share a couple of his practical thoughts way down at the end.

Copyright designs found weak when derived from common ideas

From Thompson Coburn LLP:

The well-known song says, “a kiss is just a kiss,” but the Ninth Circuit says that some kisses are “thin” and some are “broad,” and on that your copyright lawyer can rely. As time goes by.

The court got into analyzing kisses through a case, Sophia & Chloe v. Brighton Collectibles, involving designs of “Buddha’s Kiss” earrings. A Buddha’s Kiss earring has three elements: a teardrop-shaped earring, the henna symbol for the word “kiss,” and the image of the Buddha. As you might expect, the producer of one Buddha’s Kiss earring sued the producer of another, claiming copyright infringement.

Each of the parties’ earrings contained those three elements. But was that similarity enough to prove copyright infringement? The court said it wasn’t. Because every Buddha’s Kiss earring must contain those three elements, that means that the combination of those three elements is the “idea” of the earring. And copyright law does not protect ideas, but merely particular creative expressions of ideas.

Normally, two different creative expressions are analyzed under a “substantial similarity” test. But the Ninth Circuit held that because there were only a few ways to combine the three essential elements of a Buddha’s Kiss, infringement can be found only if the two designs are “virtually identical.”

Link to the rest at Thompson Coburn LLP

Basics of Copyright 

From The Office of General Counsel, Harvard University:

What does copyright protect?

Copyright does not protect ideas, nor does it protect facts.  It protects only the form in which ideas or facts are expressed.  For example, you may read a copyrighted paper and appropriate its ideas, or facts it conveys, into your own work without violating the copyright.  However, you may not reproduce the actual text of the paper (unless fair use or another exception to copyright protection applies), nor may you evade this prohibition simply by changing some words or thoroughly paraphrasing the content.

What does a copyright authorize the copyright owner to do, or to restrict others from doing?

Subject to certain limitations, a copyright owner has the exclusive right to:

  • reproduce the work by making copies of it;
  • distribute copies of the work to the public by sale, donation, rental, or lending;
  • prepare new works derived from the original (for example, a novel adapted into a play, or a translation, or a musical arrangement); and
  • publicly perform or display the work.

. . . .

What is “fair use”?

Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner.  The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster.  It allows one to use and build upon prior works in a manner that does not unfairly deprive prior copyright owners of the right to control and benefit from their works.  Together with other features of copyright law like the idea/expression dichotomy discussed above, fair use reconciles the copyright statute with the First Amendment. 

What is the test for fair use?

The fair use defense is now codified in Section 107 of the Copyright Act.  The statutory formulation is intended to carry forward the fair use doctrine long recognized by the courts.  The statute provides that fair use of a work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use, scholarship, or research)” is not an infringement of copyright.  To determine whether a given use is fair use, the statute directs, one must consider the following four factors:

  • the purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

These factors are not exclusive, but are the primary—and in many cases the only—factors courts examine.  The following questions consider each of these four factors in turn. 

What considerations are relevant in applying the first fair use factor—the purpose and character of the use?

One important consideration is whether the use in question advances a socially beneficial activity like those listed in the statute: criticism, comment, news reporting, teaching, scholarship, or research.  Other important considerations are whether the use is commercial or noncommercial and whether the use is “transformative.” 

Noncommercial use is more likely to be deemed fair use than commercial use, and the statute expressly contrasts nonprofit educational purposes with commercial ones.  However, uses made at or by a nonprofit educational institution may be deemed commercial if they are profit-making. 

In recent years, the courts have focused increasingly on whether the use in question is “transformative.”  A work is transformative if, in the words of the Supreme Court, it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.”  Use of a quotation from an earlier work in a critical essay to illustrate the essayist’s argument is a classic example of transformative use.  A use that supplants or substitutes for the original work is less likely to be deemed fair use than one that makes a new contribution and thus furthers the goal of copyright, to promote science and the arts.  To quote the Supreme Court again, transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright.”

Courts have also recognized, however, that non-transformative uses may be socially beneficial, and that a use does not have to be transformative to support a finding of fair use.  The Supreme Court has cited reproduction of multiple copies for classroom distribution as the most obvious example of a non-transformative use that may be permitted as fair use in appropriate circumstances.  The Court’s emphasis on whether a use is transformative, however, makes it difficult to know how to weigh uses that are for non-profit educational purposes but are also non-transformative.  In addition, it could be argued in some circumstances that verbatim copying of a work for classroom use is “transformative,” in that (to quote from the Court’s definition) the instructor is adding “something new, with a further purpose or different character, altering the first with new expression, meaning or message” in the course of presenting the material. 

Other factors that sometimes weigh in the analysis of the first fair use factor include whether the use in question is a reasonable and customary practice and whether the putative fair user has acted in bad faith or denied credit to the author of the copyrighted work.

What considerations are relevant in applying the second fair use factor—the nature of the copyrighted work?

The two main considerations are whether the work is published or unpublished and how creative the work is.  Unpublished works are accorded more protection than published ones, as the author has a strong right to determine whether and when his or her work will be made public.  The fact that a previously published work is out of print may tend to favor fair use, since the work is not otherwise available.

Works that are factual and less creative are more susceptible of fair use than imaginative and highly creative works.  This is in keeping with the general principle that copyright protects expression rather than ideas or facts.

However, the second factor is typically the least important of the fair use factors.

What considerations are relevant in applying the third fair use factor—the amount and substantiality of the portion used in relation to the copyrighted work as a whole?

Courts have taken both a quantitative and a qualitative approach in assessing the impact on the fair use analysis of the amount and substantiality of the portion used.  What percentage of the original work has been used?  There are no bright lines, but the higher the percentage, the more likely this factor is to weigh against fair use. 

Even if the percentage is fairly small, however, if the material used is qualitatively very important, this factor may weigh against fair use.  Thus, for example, in a case in which The Nation magazine published excerpts, totaling only 300–400 words of verbatim quotes, from Gerald Ford’s forthcoming book-length memoir, the Supreme Court held that the third factor weighed against fair use, because the excerpts included Ford’s discussion of his pardon of Nixon and other central passages that the court found to be the “heart” of the work.

Also important in applying the third factor is the nexus between the purpose of the fair use and the portion of the copyrighted work taken.  The extent of permissible copying varies with the purpose and character of the use.  Taking more of the copyrighted work than is necessary to accomplish the fair user’s salutary purpose will weigh against fair use.  In some cases, the fact that the entire work—for example, an image—was needed to accomplish the fair use purpose has led the court to hold that the third factor was neutral, favoring neither the copyright holder nor the putative fair user.

What considerations are relevant in applying the fourth fair use factor—the effect upon the potential market for or value of the copyrighted work?

Use that adversely affects the market for the copyrighted work is less likely to be a fair use.  This ties back to the first factor, and the question whether the putative fair use supplants or substitutes for the copyrighted work.  The fact that a use results in lost sales to the copyright owner will weigh against fair use.  Moreover, courts have instructed that one must look at the likely impact on the market should the use in question become widespread; the fourth factor may weigh against fair use even if little market harm has yet occurred.

This inquiry is not confined to the market for the original, but also takes into account derivative markets.  For example, if a novel were made into a movie, the movie might not harm sales of the book—indeed, it might help them—but the harm to the derivative market for movie rights would count against fair use.  This principle works in a straightforward way in the case of well-established markets, like the market for movie rights for a novel.  But it becomes much more difficult to apply if there is not an established market.  Consistent with the statutory language, courts have also looked at whether there is harm to a “potential market” for the copyrighted work.  However, if there were deemed to be a “potential market” for every use asserted to be a fair use, then the fourth factor would always favor the copyright owner, since the copyright owner would be harmed by loss of the licensing fee for that use.  One way courts have tried to avoid this circularity is by asking whether a market, if not already established, is “reasonable” or likely to be developed by copyright owners.  In keeping with this approach, courts have concluded that there is no protectible market for criticism or parody, but have considered evidence of harm to markets under development or viewed as attractive opportunities for copyright owners, such as the market for downloads of songs.  In some cases, courts have indicated that the absence of a workable market will tend to favor the fair user on the fourth factor because there is no efficient means to buy permission for the use in question.

This is a difficult and evolving area of the law.  We can nevertheless venture a few generalizations:  Uses that substitute for the copyrighted work in its original market or an established derivative market generally cause market harm that is cognizable under the fourth factor.  Where there is no established market, harm is less likely to be found, but still may be found depending on the facts, especially if the fair use case under the other factors is weak and the “market” in question is under development by copyright owners or obviously attractive commercially.  In any case, the Supreme Court has said, market harm is a matter of degree, and the importance of the fourth factor will vary, not only with the amount of harm, but also with the relative strength of the showing on the other factors.

How should one weigh the various factors in arriving at a determination whether there is fair use?

The fair use test requires an assessment of all the factors together.  The courts have repeatedly emphasized that there are no bright line rules, and that each case must be decided on its own facts.  The factors often interact in the analysis.  For example, the Supreme Court has stated that the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.  The more transformative the secondary use, the less likely it is that the secondary use will substitute for the original and cause direct market harm.  In reaching a fair use determination, all of the factors should be explored, and the results weighed together, in light of the goal of copyright law to “promote the progress of science and useful arts” (U.S. Const., art. I, § 8, cl. 8).[3] 

To understand better how courts have applied the fair use test in different situations, you may find useful the summaries of selected fair use cases at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html.  In addition, the U.S. Copyright Office maintains a Fair Use Index, which offers a searchable database of selected judicial decisions involving fair use, together with brief summaries: http://copyright.gov/fair-use/.

Link to the rest at The Office of General Counsel, Harvard University

PG’s Thoughts

PG will note that the General Counsel of Harvard, like a great many other general counsels, almost certainly prefers a quiet life to one filled with ground-breaking copyright infringement lawsuits.

PG’s bottom line on the subject of the OP is that it uses a couple of cases he regards as outliers to support a conclusion that PG thinks is presented as a more settled matter of law than it actually is.

From a practical standpoint for a non-multi-millionaire author, here are a few thoughts.

Lawyers (or some lawyers) have a general rule that some call the “Pig Test.”

Basically, the Pig Test says don’t try to push right up to the very edge of the boundary between being sued and a quiet life. Don’t try to eat too much in that part of the legal and ethical world.

Don’t call your character Jack Ryan unless he’s an elf who lives in a magical wood filled with fairies and unicorns. Don’t call him Frodo if he does.

Don’t call your character Jane Ryan if she works for the CIA and engages in international intrigue to defeat the former Soviet Union or the Chinese Communists.

Don’t paraphrase paragraphs of action sequences in a book with the assistance of a Thesaurus.

The wealthier the author and the more books she/he has sold, the more cautious you should be about even permissible borrowing of details, settings, characters, etc. Ms. Rowling has publishers, agents, lawyers, readers, etc., looking for that sort of thing.

For most authors, just being sued is more punishment in both the financial and massive distraction arenas than is good for their creative output, even if they eventually prevail in court.

CNRS Commission Defends Roques in Response to Plagiarism Accusations

From Daily Nous:

A commission formed by the French National Centre for Scientific Research (CNRS) has issued a statement defending a researcher in medieval philosophy against multiple charges of plagiarism.

Last fall, several articles by Magali Roques were retracted owing to them containing passages copied from others without attribution (details here). A commission composed of “three experts in the field, all foreigners” was tasked by CNRS to investigate, and the results of that investigation have recently been made public by CNRS.

Using a conception of plagiarism according to which plagiarism “signifies above all the theft of another author’s whole argument or the structure of their work or their fundamental ideas,” distinguishing between “plagiarism” and “unacknowledged borrowings,” and noting that they were unable to discern in Roques’ writings “a wish to appropriate anyone else’s ideas or of an intention to deceive the reader about the origin of the ideas put forward in the articles,” the commission concludes that though they are “seriously flawed by the regular presence of bad scholarly practices,” her writings contain “neither academic fraud nor plagiarism properly so called.”

Here are the commission’s “primary findings” (the report refers to Roques as “MR”):

  1. The results of our qualitative analysis show that there is neither academic fraud nor plagiarism properly so called in MR’s English articles. Moreover, there is no sign to be found of a wish to appropriate anyone else’s ideas or of an intention to deceive the reader about the origin of the ideas put forward in the articles.
  2. The results of our quantitative analysis have shown that the proportion of unacknowledged borrowings is relatively limited—sometimes even minimal—in comparison to the total size of each article. Admittedly, a brute calculation of the passages borrowed by MR from third-parties
    would tend, at first glance, to justify the accusations made against her. A more careful calculation, however – one which, in particular, takes into account the nature of the borrowings, has shown that in a number of cases it is not a matter of undeclared borrowings in the strict sense. Once the Commission had thus come to realize that many passages had been wrongly accused of being plagiarized, the proportion of borrowings open to accusation in the various articles became considerably smaller.
  3. The qualitative and quantitative analysis of the publications under accusation has led the Commission to reach a dual conclusion. On the one hand, it is undeniable that MR has been the victim of an injustice, because her accusers have fashioned and diffused, wrongly, if not with ill intent, the shameful image of a ‘serial plagiarist’, who composed all her writings simply by copying what others have written (see ‘Philosopher Revealed as serial Plagiarist’ [multiple updates], Daily Nous). On the other hand, it is also equally undeniable that the whole body of work in English published by MR is seriously flawed by the regular presence of bad scholarly practices, by what might be called a sort of active negligence, which, although not a matter of academic fraud, cannot be excused.
  4. In her publications in English, MR has quite clearly lacked rigour in her way of making references and has not respected the academic standards accepted in the area. These publications suffer from serious, persistent negligence in the manner of referring to the secondary literature and sometimes also in references to the sources. In these articles, MR has therefore failed to keep to the requirement for a scrupulous and irreproachable method of work, which every researcher should observe.
  5. In her defence, MR cites various reasons to explain the deficiencies noted in her articles in English. Some of them (such as ‘youthful errors’ and a lack of awareness about plagiarism) did not do much to convince the Commission. The Commission did, however, accept her lack of assurance in writing English as a credible reason for MR’s frequent borrowings of technical terms and formulations from authoritative studies published in the Anglophone world. Moreover, trying to forge an academic career in an ever more competitive world, MR seems to have engaged in a race to publish, writing many articles in English at breakneck speed, but cutting corners in a number of her publications, in the method, quality and rigorousness of her research. The Commission accepts that MR’s explanations are sincere and in good faith, yet it wishes to emphasize strongly that unacknowledged borrowings, even if they are accidental, involuntary or incidental, are unacceptable according to the academic standards recognized in the area.
  6. The accusations of plagiarism concern the publications which were written in a limited period,
    during which MR was trying to make a place for herself in the Anglophone academic world. It is exactly in this specific context that there occurred the failings that mark the articles in English. It is fitting to observe here that, before they could be published, all these articles were subject to peer review and that, in most cases, the reviewers came to very positive judgements both about the contents of the articles and the originality of MR’s contribution to the subject: judgements which convinced the editors of the academic journals in question who, although they are specialists in the area, did not notice the slightest indication of failings in these works.
  7. The Commission notes that, in the great majority of cases, the unacknowledged borrowings discovered in the various articles occur in the parts which introduce the general area being studied, which put the questions treated into context and in syntheses about authors who are introduced by way of comparison. These borrowings do not have anything to do with either the general interpretation or the main arguments developed by MR in her works. Each of the articles examined thus presents an individual contribution of her own by MR, with her own original ideas, based on which she presents distinctive views, which she offers to specialist readers in order to engage in academic discussion among equals.
  8. The Commission did not discover any academic fraud or any sign of plagiarism in the three French publications. The accusations regarding these publications turned out to be to a large extent unfounded. There is, indeed, the borrowing of a phrase from an article by Irène RosierCatach, but the passage in question merely states a commonplace. That said, the Commission notes that MR’s negligence over giving references is also found to some degree in these articles.
  9. The Commission observes that the idea of plagiarism goes far beyond tacit citation: it signifies above all the theft of another author’s whole argument or the structure of their work or their fundamental ideas. Nothing of this sort can be attributed to MR.
  10. Finally, the Commission wishes to give an explicit reply to the question of whether ‘supposing that the borrowings had been correctly cited … the articles under accusation contain enough original ideas of MR’s own to justify their publication.’ It can indeed confirm that if MR had cited all her borrowings correctly, this would not have lessened the number of original ideas that she proposes in the articles under accusation. The publication of these articles would therefore be entirely justifiable if MR put her borrowings into inverted commas and attributed them correctly to their authors.

In line with the claim that the publicization of the accusations of plagiarism against Roques constitutes “an injustice” (see #3, above), the commission writes:

the vast damage done to MR’s academic standing by the accusations of plagiarism seems already to outweigh in severity any sanction proportionate to the deficiencies and mistakes considered during our enquiry.

The commission also notes that it is not up to them “what course of action the CNRS should take in response to this affair.”

Link to the rest at Daily Nous

The OP, which appears in a longer blog post apparently written by the individual accused of plagiarism, reminded PG of the Sayre’s Law (named after Wallace Stanley Sayre, a now-deceased political science professor at Columbia University):

Academic politics is the most vicious and bitter form of politics, because the stakes are so low.

That said, PG does advise one and all not to practice plagiarism and, with his lawyer hat on, will mention that plagiarism and copyright infringement, while similar, are not necessarily the same thing.

At least in the United States, plagiarism may or may not rise to the level of copyright infringement, depending on the nature and extent of copying.

Including a 40-word excerpt from a longer work in one’s own writing without attributing the author, thus giving the impression that the excerpt is one’s own creation/idea, is plagiarism, but would likely not rise to the level of copyright infringement.

Copying an entire 250-page book, even if one attributed the author, might not technically be plagiarism (although it would certainly be academic bad form), but it would be copyright infringement.

Copyright law is designed to allow the creator of a work to reap the economic fruits of her/his creative labors without others wrongly depriving them of such rewards.

Plagiarism and copyright infringement are both bad behavior, presenting other’s works as one’s own and attempting to gain some benefit from those acts.

The (Copyright) Trouble with NFTs

From Jane Friedman:

We have an original oil painting hanging over our fireplace in the basement. We commissioned it many years ago from a young local artist whose work we enjoyed. The painting is probably worth less today than when we bought it in the late 90s.

On the back of the painting is an envelope, taped there by the artist. Inside is a handwritten “certificate of authenticity” signed by the artist indicating that he in fact did paint the picture, a whimsical scene of a stylized living room that was meant to be hung, well, in a living room. That certificate is the only proof of provenance we have should that artist suddenly become famous.

If instead of actually committing oil to canvas, however, the artist had created the work purely and only in a digital form, he could not have attached his physical certificate of authenticity to the work. Thus, when he emailed me the JPEG or PNG of the image for me to presumably print, frame, and hang over my fireplace, all I would have to prove provenance is his email indicating that the attached was his original work of authorship. And I might not even have such an email!

So, what to do to establish provenance of wholly digital works of art? NFTs! These digital certificates of authenticity, minted and recorded in the blockchain, certainly have their utility in terms of establishing provenance, but as a copyright lawyer, I frankly stand all amazed at the hoopla surrounding non-fungible tokens.

Why? Well, whence does a work of art derive value? Provenance, yes, but more accurately, scarcity. It’s Econ 101 all over again. If there’s only one The Starry Night, never to be re-created again by Van Gogh, and the provenance is not in question, that work of art is worth tens of millions of dollars. If there were fifty or a hundred The Starry Nights, however, all identical to the original and all painted by Van Gogh, the value of that masterpiece would certainly decrease.

So now consider a wholly digital work of art, a work that may be infinitely and easily copied and re-created by everyone who sees it on the internet simply by right-clicking on the image and selecting “Save As.” Or “Print.” Or “Email.” Or “Publish to Facebook.” Again, and again and again. There is thus no inherent scarcity to wholly digital works of art.

And this is true even if the artist has minted an NFT to go along with it because all an NFT is is a digital form of provenance. Admittedly the unique, immutable non-fungible token itself may have value as a novelty and because there is only one, but I worry about the general public’s perception that the NFT somehow establishes the value and creates scarcity of the underlying work of art.

And so now enters our old friend copyright law. With or without an NFT, the only way an artist can stop the unlawful reproduction of a digital work of art is by using copyright law, as is true for any work authored in, say, the last 100 years. For today, U.S. copyright law does not recognize an NFT as that “thing” that will get you admission to federal court to sue for copyright infringement. Unless a digital artist has registered her copyrights in her portfolio with the United States Copyright Office, she has no legal remedies against illegal copying of her digital works, NFTs notwithstanding, and this means she has no real effective mechanism to create scarcity of her work by controlling the supply.

So until Congress rewrites 17 USC Section 411(a) or the U.S. Supreme Court revisits its recent Fourth Estate decision (holding that the plaintiff must have a copyright registration certificate in hand to maintain an infringement action in federal court), an NFT is not equivalent to a copyright registration certificate issued by the Copyright Office. Thus, cutting-edge digital artists are left with a legal remedy hundreds of years old to create the requisite scarcity to drive value in their digital works, even if the artist has minted an NFT for the work.

. . . .

Think of it this way: an investor paid $69 million for the NFT minted in connection with Beeple’s digital work of art Everyday: The First 5,000 Days, but unless and until Beeple obtains a copyright registration certificate on that work, someone could, for example, print 1,000 T-shirts with exact copies of 5,000 Days on them and sell them on Etsy with relative impunity. 

Link to the rest at Jane Friedman

From The Verge:

There’s nothing like an explosion of blockchain news to leave you thinking, “Um… what’s going on here?” That’s the feeling I’ve experienced while reading about Grimes getting millions of dollars for NFTs or about Nyan Cat being sold as one. And by the time we all thought we sort of knew what the deal was, the founder of Twitter put an autographed tweet up for sale as an NFT.

You might be wondering: what is an NFT, anyhow?

After literal hours of reading, I think I know. I also think I’m going to cry.

Okay, let’s start with the basics:

What Is an NFT? What Does NFT Stand For?

Non-fungible token.

That doesn’t make it any clearer.

Right, sorry. “Non-fungible” more or less means that it’s unique and can’t be replaced with something else. For example, a bitcoin is fungible — trade one for another bitcoin, and you’ll have exactly the same thing. A one-of-a-kind trading card, however, is non-fungible. If you traded it for a different card, you’d have something completely different. You gave up a Squirtle, and got a 1909 T206 Honus Wagner, which StadiumTalk calls “the Mona Lisa of baseball cards.” (I’ll take their word for it.)

How do NFTs work?

At a very high level, most NFTs are part of the Ethereum blockchain. Ethereum is a cryptocurrency, like bitcoin or dogecoin, but its blockchain also supports these NFTs, which store extra information that makes them work differently from, say, an ETH coin. It is worth noting that other blockchains can implement their own versions of NFTs. (Some already have.)

What’s worth picking up at the NFT supermarket?

NFTs can really be anything digital (such as drawings, music, your brain downloaded and turned into an AI), but a lot of the current excitement is around using the tech to sell digital art.

. . . .

A lot of the conversation is about NFTs as an evolution of fine art collecting, only with digital art.

Do people really think this will become like art collecting?

I’m sure some people really hope so — like whoever paid almost $390,000 for a 50-second video by Grimes or the person who paid $6.6 million for a video by Beeple. Actually, one of Beeple’s pieces was auctioned at Christie’s, the famou—

Sorry, I was busy right-clicking on that Beeple video and downloading the same file the person paid millions of dollars for.

Wow, rude. But yeah, that’s where it gets a bit awkward. You can copy a digital file as many times as you want, including the art that’s included with an NFT.

But NFTs are designed to give you something that can’t be copied: ownership of the work (though the artist can still retain the copyright and reproduction rights, just like with physical artwork). To put it in terms of physical art collecting: anyone can buy a Monet print. But only one person can own the original.

No shade to Beeple, but the video isn’t really a Monet.

What do you think of the $3,600 Gucci Ghost? Also, you didn’t let me finish earlier. That image that Beeple was auctioning off at Christie’s ended up selling for $69 million, which, by the way, is $15 million more than Monet’s painting Nymphéas sold for in 2014.

Link to the rest at The Verge

From Investopedia:

Greater Fool Theory

The greater fool theory argues that prices go up because people are able to sell overpriced securities to a “greater fool,” whether or not they are overvalued. That is, of course, until there are no greater fools left.

Investing, according to the greater fool theory, means ignoring valuations, earnings reports, and all the other data. Ignoring the fundamentals is, of course, risky; and so people subscribing to the greater fool theory could be left holding the bag after a correction.

. . . .

Understanding the Greater Fool Theory

If acting in accordance with the greater fool theory, an investor will purchase questionably priced securities without any regard to their quality. If the theory holds, the investor will still be able to quickly sell them off to another “greater fool,” who could also be hoping to flip them quickly.

Unfortunately, speculative bubbles burst eventually, leading to a rapid depreciation in share prices. The greater fool theory breaks down in other circumstances, as well, including during economic recessions and depressions. In 2008, when investors purchased faulty mortgage-backed securities (MBS), it was difficult to find buyers when the market collapsed.

By 2004, U.S. homeownership had peaked at just under 70%. Then, in late 2005, home prices started to fall, leading to a 40% decline in the U.S. Home Construction Index in 2006. Many subprime borrowers were no longer able to withstand high interest rates and began to default on their loans. Financial firms and hedge funds that owned in excess of $1 trillion in securities backed by these failing subprime mortgages also began to move into distress.

Example of the Greater Fool Theory

Bitcoin’s price is often cited as an example of the greater fool theory. The cryptocurrency doesn’t appear to have intrinsic value (although this is an area of debate), consumes massive amounts of energy, and consists simply of lines of code stored in a computer network. Despite these concerns, the price of bitcoin has skyrocketed over the years.

At the end of 2017, it touched a peak of $20,000 before retreating. Attracted to the lure of profiting from its price appreciation, traders and investors rapidly bought and sold the cryptocurrency, with many market observers positing that they were buying simply because they hoped to resell at a higher price to someone else later. The greater fool theory helped the price of bitcoin zoom upwards in a short period of time as demand outstripped supply of the cryptocurrency.3

The years 2020-21 saw Bitcoin rise to new highs, topping $60,000 and hovering above $50,000 for weeks. This time, however, large institutional investors and corporations such as Tesla and PayPal have been involved in the buying—and it is debatable whether or not they can be considered fools. So, perhaps Bitcoin is not an example of the greater fool theory, after all.

Link to the rest at Investopedia

From Wikiquote:

Unattributed Variants to Murphy’s Law

  • It is impossible to make anything foolproof because fools are so ingenious.
  • Nothing is foolproof to a sufficiently capable fool.
  • Make something idiot-proof, and they will build a better idiot.

Link to the rest at Wikiquote

PG suggests that copyright is only one of a great many problems with a collector’s market for Non-fungible tokens.

A great many things that are rare are not valuable. PG cites originals of his third-grade homework as examples.

Author Complaints at City Limit Publishing

From Writer Beware:

I first heard of City Limits Publishing (CLP) in September 2020, via a question about author-unfriendly guidelines in a contest it was running (simply by entering, writers granted “a worldwide royalty-free perpetual license to publish”). At the time, CLP had published just eight books, all by the same two authors . . . and was calling for submissions. 

To me, CLP looked like a self-publishing endeavor that was trying to expand into traditional publishing. This doesn’t always work out well, since not all self-publishers have a solid knowledge of publishing (or, necessarily, any business experience) and may unintentionally disadvantage writers with nonstandard business practices, or author-unfriendly contracts, or both. And indeed, CLP’s original contract had some problems. It included a transfer of copyright, a major red flag in a non-work-for-hire contract…

…that was directly contradicted by a clause stipulating the printing of copyright notices in the author’s name (not the publisher’s, as would normally be the case with a copyright transfer), as well as an extremely generous termination clause allowing authors to cancel their contracts post-publication at will for any reason. This kind of internal contradiction is something I see not infrequently in small press contracts, and is a red flag all on its own: it suggests that the publisher has a less than perfect understanding of its own contract terms.

CLP appears to have recognized this at some point, because the copyright grab disappeared from its contracts in September or October 2020 (the generous termination provision remains). CLP’s catalog has ballooned to over 40 titles, including those original eight, and it has big ambitions for 2021, with plans to publish more than 50 books in total. That’s a very large list for a small press–something that can (and often does) lead to trouble if staff and resources aren’t adequate to handle the load.

. . . .

UPDATE: Robert Martin, CLP’s owner, contacted me after this post went live to say that CLP has “never moved or delayed a publishing date. Ever.” The dates on the CLP website listings, he explained, are actually “pre-sale” dates [I assume this is the date the book goes live for pre-orders]; the reason they’re labeled “publish” dates is because “[t]he Shopify theme we purchased automatically uses the date we put the product into our online store as the Publish date.” CLP’s web developer is apparently working to change this.

When I asked why, if the books are available for pre-order on the CLP website, they aren’t also available on Amazon and other retailers, he told me “As for why they aren’t all on retail sites yet, we put them up as we are able and as projects come to a close, but I don’t feel like we have to explain ourselves for every little thing we do.”)

Also of concern: the multiple documented complaints I’ve recently received from CLP authors. These include late royalty payments, missed editing and other deadlines, difficulty getting CLP staff to respond to questions and concerns, free author copies and books ordered at author discount not received or received months late, books ordered by readers not received or received months late, formatting and other errors in finished books that authors struggled to get corrected (for instance, the author’s name spelled wrong on the spine), substandard editing and proofing, and copyrights not registered as required in contracts. Some writers reported problems with CLP’s heavily hyped online author portal–confusingly named AuthorCentral–which they said suffers from frequent crashes. I also heard from an audiobook narrator who told me that they weren’t informed when CLP lost the rights to a book the narrator was in the process of recording, posing payment issues for the narrator, who was working on a royalty-share contract.

Authors also highlighted issues of transparency: being told that copyright registrations had been filed and later discovering they had not been, claims that print runs of thousands of copies were being done when in fact CLP uses on-demand technology to produce books in much smaller batches as ordered.

. . . .

I contacted CLP’s founder, Robert Martin, for comment on all of the above. He gave me the following statement, which I have edited to remove mention of an individual author (not by name, but likely recognizable even so). 

When I started City Limits Publishing, I committed to full transparency and I’ve tried to provide that from the very beginning. Through our bi-weekly author newsletter to frequent direct updates and notices from me to all of our authors, I’ve kept them appraised of shipping issues related to COVID, updates to our financial systems, implementation of our new author intranet system that would provide them greater access to information and updates, as well as any challenges we’re facing as an organization. And, being a new, small press, there are many. The authors who have stuck with us have been absolutely amazing and their support is inspiring. Together, we’re building something great here. Many of our authors have emailed me thanking me for the transparency they’re getting and have been so encouraging even when receiving direct, unsolicited messages from a handful of authors on a war path.

We’re aware of the situation and some of the issues a small group of former authors have brought up. First, with regards to late royalty payments, we were delayed in sending out payments as we both moved to a new system and I had a personal matter that required my attention and took me away from work for a bit. The payments were made up in full with tracking and confirmation of receipt, along with my sincerest apologies, and a promise that our next payout, July 20, would be made in full and on time, with the exception of authors who have entered into final accounting after requesting to be released from their agreements. Their final payments are being made this month as agreed during termination discussions. We’re in the process of hiring a Business Manager that will take help ensure we are not late in the future. Our royalty statements were delayed in April as we made the transition to RoyaltyTracker (MetaCommet). Their implementation schedule caused us delays in sending out statements. We made a major investment in this new system so that going forward everything would operate more smoothly. With progress comes growing pains.

With regards to author copies, we have committed to making sure that our authors receive at least half of their author copies in the weeks leading up to their release, and half within 90 days of release. Author copies are a large expense for the company. We’re a small business trying to get started during a global pandemic. As for ordering problems, we admit that during our early months we faced many delays, especially with our original printer and our transition to the IngramIgnite program. Still, all orders were fulfilled, and we’re now shipping out daily with no delays.

With copyright registration, we did drop the ball on some of our earlier titles. Before we brought on a full team, I was working mostly on my own with operations. I’m human and did make mistakes with copyright registration of some of our earlier titles. Now, we have a system in place to make sure registration happens within 90 days of publication, as outlined in the agreement. And, we have made steps to help educate authors on the copyright registration process. It’s not a fast process, so we’ve made sure to provide information to authors on timelines and how that process works.

Other complaints mentioned: Our early editing process was not as refined as it is now. We were just getting started, and we really learned a lot. We’ve even gone back through older titles for extensive checks and proofing to ensure we’re putting out the highest quality of work. Authors complained about books going to print with errors, but we do require all of our authors to initial the bottom corner of every page of their book before it goes to print. So, respectfully, that’s a shared mistake, and one we’ve worked extremely hard to rectify, now having four sets of eyes on all works published. Additionally, we do still have a contract with ACX and with Audiobook Universe. We were temporarily suspended from ACX for a contract mix-up where exclusive rights were selected when non-exclusive was intended. We removed the book from our website (it had not sold any copies) and our contract was reinstated. With regards to our printing, we originally used an up-front printing method, but were approached by Ingram’s IngramIgnite program (a program specifically for small presses) about using their system. We transitioned to their system, but still process upfront orders of copies of books and fulfill them to bookstores in the US and Canada that are ordered directly from us through our marketing efforts. Additionally, we make sure our wholesale pricing is competitive to get our books listed with as many retailers as possible, and we’ve enjoyed great success with the help of our partners at Ingram.

Are we perfect? Absolutely not. Are we learning from our mistakes and putting in place processes to ensure they don’t happen again? Absolutely.(I’m not familiar with IngramIgnite; websearches don’t turn up any information.)

To his credit, Martin admits mistakes. But fostering an us-and-them mentality (hints of this come through in the statement, and it’s clear from my communications with Martin, as well as what CLP authors–both pro and con–have shared with me, that the complaining authors are being badmouthed internally), and blaming writers, if only partially, for mistakes such as poor proofing (authors certainly owe their publisher the duty of checking their proofs, but ultimately it’s the publisher’s responsibility, and not the author’s, to make sure books are error-free), doesn’t seem like the most positive way forward.

. . . .

Good intentions are all very well. But most of the publishers I’ve featured on this blog had good intentions, at least to start. Writers need to keep in mind that good intentions–like responsiveness, enthusiasm, praise, and all the other non-publishing-related things that so often entice writers into questionable situations–aren’t a substitute for knowledge, experience, qualified (and adequate) staff, and working capital–all of which are far more important factors in a publisher’s success. Just as new writers can get into trouble if they set out to get published without taking the time to learn about publishing, inexperienced publishers can run into difficulties if they start up too quickly and attempt to learn on the fly. 

In effect, such publishers are using their writers as subjects in a kind of science experiment. Sometimes the experiment succeeds, against odds and errors. Sometimes it doesn’t. But while unwary writers’ screwups harm only themselves, a publisher’s screwups harm its authors.

Link to the rest at Writer Beware

PG noted the following in the publisher’s comments about the problems reported in the OP:

Author copies are a large expense for the company.

For PG (who may be wrong), this statement caused a large flashing sign to appear in his mind’s eye:

Undercapitalized

Once the presses start running for publication of a hardcopy book, a few extra copies are pretty cheap.

Here are Amazon’s published printing costs for KDP books:

Paperback specification: black ink with 110-828 pages
Amazon.com0.85 USD per book0.012 USD per page
Amazon.ca1.11 CAD per book0.016 CAD per page
Amazon.co.uk0.70 GBP per book0.010 GBP per page
Amazon.de, Amazon.fr, Amazon.it, Amazon.es0.60 EUR per book0.012 EUR per page
Amazon.com.au2.17 AUD per book0.0215 AUD per page
Amazon.co.jp175 YEN per book2 YEN per page

That works out to $3.85 for a 250-page trade paperback on a print-on-demand basis. Twenty free copies cost $77.

The OP says the publisher’s catalog totals 40 books. That’s a total expanse of a little over $3,000 for all the author copies in the publisher’s catalog at the price Amazon calculates its POD cost is.

If $3,000 is a “large expense” for the publisher, PG wonders how much working capital the publisher has available to pay its employees, rent, advertising and promotion costs, printers bills, etc., etc., etc., and afford all the other things any business has to pay for if it’s going to be successful.

From The Free Dictionary:

handwaving

Actions, words, or ideas that are meant to impress or appear convincing but which are in reality insubstantial or inconsequential.The governor has been doing a lot of political handwaving over the issue of immigration lately, but few suspect that anything will actually be accomplished in the coming year.

. . . .

See also:

  • airy-fairy
  • run on fumes
  • run on empty

Link to the rest at The Free Dictionary

AAP Vows to Protect Copyright from All Challengers

From Publishers Weekly:

(The Association of American Publishers held its annual meeting via Zoom.)

[Maria Pallante, CEO of AAP] said that the financial results of publishers, particularly for trade publishers, during the pandemic proved that readers have never lost interest in good stories, and that the importance of books to people was highlighted during the lockdown. That publishers were able to quickly meet the increased demand for books reflects the resiliency of the industry, Pallante said, and also shows that “there has never been a better or more important time to be in publishing.”

To make sure that publishing remains a good business to be in, AAP’s job, Pallante said, “is to ensure that you can compete fairly in the modern marketplace.” Regrettably, she continued, “there are actors who seek to weaken your legal protections in order to advance their business interests, whether that interest is in bloating the fair use doctrine to illogical boundaries or, more blatantly, appropriating and monetizing your works without permission.”

In Pallante’s view, the exclusive rights delineated in the Copyright Act are under assault, as is an effective enforcement framework, and she said the DMCA, which governs how infringing content on websites can be taken down, “is badly in need of updating.” She also lamented the lack of a competitive marketplace in which authors’ works can be discovered and publishers can compete “without unfair control or manipulation from dominant tech giants.”

Challenges to copyright protection are also happening at the state level, Pallante warned, where library lobbyists and “tech-funded” special interest groups are working to “divert copyright protection away from Congress to state assemblies,” an apparent reference to Maryland’s passage of a law late last week that would force publishers to make any digital content they license to consumers available as “an electronic literary product” to public libraries in the state “on reasonable terms.” The AAP opposed the law, and in her remarks, Pallante argued that these state efforts “are clearly preempted by the express language of the federal Copyright Act,” while also spinning a “false narrative.”

Pallante said libraries are an important part of the publishing ecosystem, but added that, “authors, publishers, and bookstores also have policy equities, which is why Congress enacted a singular cohesive federal copyright system that has address the ownership and sale of books since 1790.” She also hit back against what she said are lobbyists pushing states to fund open educational resources “through ugly misinformation campaigns aimed at publishers” and designed to replace publishers’ materials.

In a final point about copyright, Pallante said that the lawsuit the association filed a year ago against the Internet Archive for copying 1.3 million scans of books is still in discovery, but said the IA’s activities “are well outside the boundaries of both the law and copyright commerce, and ultimately pose an existential threat to the copyright framework on which authors and publishers rely.”

Link to the rest at Publishers Weekly

Warhol v. Goldsmith

From The Center for Art Law:

Since the opening of his retrospective at The Whitney Museum of American Art, From A to B and Back Again, Andy Warhol is the talk of the town… again. One of the Museum’s facades is now covered with poppy flowers, and its fifth floor is dominated by a rainbow Mao Tse-Tung. Though the visual imprints Warhol has left on the art world and popular culture are inescapable, the legal heritage he delegated to his Foundation after his death in 1987 are less acclaimed. The entity has been confronted with many litigations addressing copyright and authenticity issues related to the artist’s works and most often to his screenprints.

One of the most recent cases, The Andy Warhol Foundation For The Visual Arts, Inc. v. Goldsmith et al (“the Goldsmith case”) lays an unusual scenario in that regard; one where the Foundation raced its way to court before its adversaries, photographer Lynn Goldsmith and her company Lynn Goldsmith Ltd.

The case involves Goldsmith’s 1981 photo of late singer Prince and Warhol’s Prince Series, of which Goldsmith’s photo is the basis. Her and her company had threatened to file a litigation against the Foundation for copyright infringement if they did not receive compensatory damages.

On April 7th, 2017, the Foundation (“the Plaintiff”) filed a complaint against Lynn Goldsmith and Lynn Goldsmith Ltd. (“the Defendants”) on four causes of action. The Plaintiff’s complaint offers an insight on Copyright Law, the essence of Pop Art, and Warhol’s emblematic silkscreened vision.

Lynn Goldsmith emerged as one of the first American female photographers in the “Sex, Drugs & Rock n Roll” era. Her work is featured is major national collections, such as The Museum of Modern Art or The Smithsonian National Portrait Gallery, and her coffee table book New Kids on the Block, was featured on The New York Times Best Seller list. She was one of the first artists to portray late singer Prince, as his career was just beginning to sprout. In 1981, Newsweek hired Goldsmith for their article dedicated to the rising pop star. In one of the pictures from that photoshoot, he wears a serious gaze, high-waisted dress pants and silver suspenders, a white buttoned up shirt and an untied bow around his neck. His hands are nonchalantly tucked in his side pockets. When Goldsmith was asked to describe how her subject spoke to her in that moment, she said she saw “someone who could be so expressive and really was willing to bust through what must be their immense fears to make the work that they wanted to do, which kind of required a different part of themselves, but at the heart of it all, they’re frightened.”

. . . .

Lynn Goldsmith, photo of pop artist Prince, 1981, for Newsweek.

Upon the release of his Grammy Award winning album Purple Rain, glossy magazine Vanity Fair spread his portrait across its November 1984 issue. The magazine’s photo department asked for a written license to use Goldsmith’s 1981 picture to illustrate the article, which the artist and her company delivered. As one of the backbones of an art movement that targets popular culture, fame and the media, Andy Warhol was asked to create a more colorful version of the photograph to be featured on a full page across from the article. Warhol’s screenprint featured a purple Prince on a dark orange background. The mention ©1984 by Lynn Goldsmith was featured below it.

[Above: Reproduction of pages 66-67 of the November 1984 issue of Vanity Fair, featuring one of Warhol’s screenprint depicting pop artist Prince.  
Exhibit taken from the Complaint.]

. . . .

The Plaintiff requested a declaratory judgement in anticipation of the Defendants’ “baseless claims.” The Foundation now hopes the Second District Court will consider Warhol’s Prince Series in light of its previous Prince case – Richard Prince, that is – in which the judge had found the Defendant’s work to be transformative and protected by fair use, back in 2013.

Left: Lynn Goldsmith, 1981, Newsweek.
Right: Andy Warhol, Prince Series, 1984, Vanity Fair.
Exhibit taken from the complaint. 

The Complaint supports these arguments with extensive factual background and explanations on Warhol’s artistic signatures. In order to demonstrate that his art is incomparable to Goldsmith’s, the Plaintiff relies on Warhol’s unique production process and silkscreens, as well as on the message he conveys through his work. In the same way it may feel unnatural to think of a person differently than as both a body and a mind, an artwork’s aesthetics is inseparable from its latent message, when it has one. This is especially true for a Warhol silkscreen in which, as analyzed in one of The Whitney’s walltexts, “the photograph (…) became both the subject of the painting and the means by which Warhol made it.”

Thus, the Defendants’ arguments travel from visual to symbolic language to persuade the Court of the work’s originality, while exploring the newly pushed boundaries of fair use and the more traditional equitable doctrine of laches.

. . . .

The Defendants argue that Warhol’s works transcend their subjects’ personality. While Goldsmith uses her camera to create confidential portraits, Warhol used public figures to comment upon social issues. His muses served as human billboards for the topics he denounced, and he chose them for what he believed society associated them with, rather than for who they were as individuals. Warhol’s messages were effective because he worked off images most Americans were familiar with; images that had been ingrained in the common imagination. As an example, the Complaint alludes to the artist’s 1962 silkscreen representations of Marilyn Monroe, which transformed her publicity photo for the movie Niagara (1953). Dr. Tina Rivers Ryan stated that the use of two-dimensional silkscreens in this work creates an “emotional ‘flatness’ and [turns] the actress into a kind of automaton.” Warhol hoped his use of universal photographs would lead his audience into questioning and comparing them to his alterations. His portraits would have been deprived of their essence without a clear reference to popular culture.

In his expert opinion for the Foundation, Dr. Thomas Crow explains how Warhol applied that very technique to transform Goldsmith’s photograph. According to Dr. Crow, “the heightened contrast that Warhol preferred has the effect of isolating and exaggerating only the darkest details: the hair, moustache, eyes, and brows. One conspicuous effect of these changes was to make the subject appear to face fully towards the front as a detachable mask, negating the more natural, angled position of the figure in the source photograph.”

Warhol’s litigious work merely shows the singer’s face and hair. Prince’s outfit and body language were an essential part of Goldsmith’s photo. Interestingly, Warhol was able to separate the physical body from the person’s head for most of his prints. This gives his viewers the impression that the model depicted is only half real. Though Prince is still recognizable, Warhol’s portrait cuts off parts of his personality that were focused on in Goldsmith’s work. Clearly, the two visual artists had different intentions behind their portrayals.

. . . .

Fair Use Defense

An artwork can qualify as fair use in several situations defined in the Copyright Act. For example, an artist does not need the copyright owner’s authorization to use his work to create a parody or some other form of satire of the original work.

Left: Patrick Cariou, Yes Rasta, 2000. 
Right: Richard Prince, Canal Zone Series, 2008, powerHouse Books, Gagosian Gallery. 

In Cariou v. Prince, the facts were similar to the casein question here, and practically launched the Goldsmith lawsuit. The Court of Appeals for the Second Circuit faced an issue related to artist’s Richard Prince’s use of Patrick Cariou’s photograph of Rastafarians. In order to declare that (Richard) Prince’s works were protected by the doctrine of fair use, the Court interestingly stated that “Much of Andy Warhol’s work, including work incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising.” When the case settled, Goldsmith expressed her disagreement with the justice system on social media, acting as a spokeswoman for contemporary artists. She then decided to threaten the Andy Warhol Foundation to defend her own work against satire was predictable, yet overdue.

Surely, in 2016, Goldsmith was still motivated be the anger she had shared in her Facebook post about copyright laws not changing in artists’ favor three years earlier. Perhaps she still has hope today that the power of Warhol’s prints will fade with time once, and if, the Goldsmith case reaches the Court of Appeals. However, copyright cases involving the Foundation seem to tilt more in its favor every time.

. . . .

UPDATE: on July 1, 2019, the Southern District of New York ruled in a summary judgment that, although Goldsmith’s photograph is protected by copyright, the Foundation properly pleaded the Fair Use defense. Despite the works being commercial in nature, the Andy Warhol Foundation is a nonprofit, and gave works to be exhibited in museums – the works therefore “add value to the broader public interest.” The court also ruled that Warhol’s Prince are transformative, purveying a different message than Goldsmith’s photographs.

UPDATE: on March 26, 2021, a few days prior to PG making this post, the Court of Appeals for the Second Circuit ruled on appeal from Goldsmith that “The Prince Series works are substantially similar to the Goldsmith Photograph as a matter of law” and that Warhol’s use did not constitute fair use and was not transformative enough.

Link to the rest at The Center for Art Law

For those who have no patience with legalese, the Warhol Foundation won at the trial court level and the photographer won at the Court of Appeals, which reversed the trial court’s decision.

PG notes that the Court of Appeals decision was released less than two weeks ago. PG hasn’t checked the rules for how quickly the Warhol Foundation needs to start the process of appealing the Court of Appeals decision to the US Supreme Court, but suspects that time has not yet expired.

Today, the US Supreme Court issued one of its rare opinions concerning copyright law issues.

This case held that that Google could legally use elements of Oracle’s Java application programming interface (API) code when building Android. As with the Warhol case the Java API case revolved around the question of fair use.

You can be certain that the attorneys for the Warhol Foundation are intensely studying the Supreme Court opinion. The attorneys for the photographer are imbibing mind-altering substances and preparing to dig into the Supreme Court opinion in a day or two. Billable hours are proliferating with blinding speed.

From the Stanford University Libraries:

What Is Fair Use?

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.

So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general guidelines and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.

Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody.

Commentary and Criticism

If you are commenting upon or critiquing a copyrighted work—for instance, writing a book review—fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:

  • quoting a few lines from a Bob Dylan song in a music review
  • summarizing and quoting from a medical article on prostate cancer in a news report
  • copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
  • copying a portion of a Sports Illustrated magazine article for use in a related court case.

The underlying rationale of this rule is that the public reaps benefits from your review, which is enhanced by including some of the copyrighted material. Additional examples of commentary or criticism are provided in the examples of fair use cases.

Parody

A parody is a work that ridicules another, usually well-known work, by imitating it in a comic way. Judges understand that, by its nature, parody demands some taking from the original work being parodied. Unlike other forms of fair use, a fairly extensive use of the original work is permitted in a parody in order to “conjure up” the original.

Link to the rest at the Stanford University Libraries

While PG does not contest that the Stanford summary of fair use covers a great many copyright/fair use cases, addresses the Supreme Court’s fair use decision in the Google v. Oracle case only in passing.

Transformative Fair Use

Here’s a key excerpt from the Supreme Court’s Google v. Oracle decision:

Google’s copying of the API to reimplement a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, constituted a fair use of that material as a matter of law.

Transformative fair use can be a very squishy, blobby thing for courts to deal with. There is more than a little “I know it when I see it” reasoning that gets dropped into the mix. The border between transformative and non-transformative qualifies as quite an impressive gray line.

The latest Supreme Court decision includes the term, “transformative”, twenty-seven times. Here are a few examples:

The inquiry into the “the purpose and character” of the use turns in large measure on whether the copying at issue was “transformative,” i.e., whether it “adds something new, with a further purpose or different character.” . . . Google copied only what was needed to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language. Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and
popularize that objective. The record demonstrates numerous ways in which reimplementing an interface can further the development of computer programs. Google’s purpose was therefore consistent with that creative progress that is the basic constitutional objective of copyright itself.

[W]e have used the word “transformative” to describe a copying use that adds something new and important. . . . “‘artistic painting’” might, for example, fall within the scope of fair use even though it precisely replicates a copyrighted “‘advertising logo to make a comment about consumerism.’” . . . . Or, as we held in Campbell, a parody can be transformative because it comments on the original or criticizes it, for “[p]arody needs to mimic an original to make its point.”

Rather, in determining whether a use is “transformative,” we must go further and examine the copying’s more specifically described “purpose[s]” and “character.”

There was a dissenting opinion in the Supreme Court case:

The Purpose and Character of the Use – The second-most important factor—“the purpose and
character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes,” —requires us to consider whether use was “commercial” and whether it was “transformative.” . . . . But “we cannot ignore [Google’s] intended purpose of supplanting [Oracle’s] commercially valuable” platform with its own. . . . . Even if we could, we have never found fair use for copying that reaches into the tens of billions of dollars and wrecks the copyright holder’s market. . . . .

A work is “transformative” if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” . . . . This question is “guided
by the examples [of fair use] given in the preamble . . . Those examples include: “criticism, comment, news reporting, teaching . . . , scholarship, or research.” . . . .

Although these examples are not exclusive, they are illustrative, and Google’s repurposing of Java code from larger computers to smaller computers resembles none of them. Google did not use Oracle’s code to teach or reverse engineer a system to ensure compatibility. Instead, to “avoid the drudgery in working up something fresh,” Google used the declaring code for the same exact purpose Oracle did. As the Federal Circuit correctly determined, “[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”

That new definition eviscerates copyright. A movie studio that converts a book into a film without permission not only creates a new product (the film) but enables others to “create products”—film reviews, merchandise, YouTube highlight reels, late night television interviews, and the like.

Circling back to the Warhol case, for PG, Warhol’s creation transformed the original photo into something fundamentally different. No one who wanted to use the original photograph for commercial purposes would be satisfied with the painting. No one who wanted something with the overall impact of the painting would have been satisfied with the photograph.

PG suggests the court decision concerning the use of the Rastafarian photo (above) supports his commercial purposes discussion above. No one interested in licensing the original photo from the photographer would be satisfied with the painted version and vice versa.

For PG, the Warhol case is much stronger for transformation than the Google/Oracle case for a transformative use of the photo to create something different and which does not compete with the original or impair its commercial value.

Legal/Philosophical Diversion – Feel Free to Skip

Something about the education, background and experience of most judges makes them unusually clumsy when it comes to copyright and copyright infringement cases. Hence PG’s skepticism about some copyright decisions. He will note in passing that most judges have similar problems with patents and patent infringement matters.

In a copyright infringement case PG tried a very long time ago, a federal judge in a private conference with PG and opposing counsel said that, if PG’s client had taken the content of the publications of the opposing party and used it for commercial purposes, PG’s client was the equivalent of a thief.

The problem with the judge’s emotional response was that the US Supreme Court had recently released an opinion that clearly stated that material of the type PG’s client had copied was not protected under US copyright law.

Some writings and publication are protected by copyright and others are not.

As an example, if you take a list of the states in the United States and reorder it in reverse-alphabetical order or in the order in which they were admitted to the to the Union, even if no one has ever done so before, you are not entitled to a copyright on the results of your work.

The specific case that supports PG’s statement in the prior paragraph (and PG’s contention to the afore-mentioned cranky judge) is a U.S. Supreme Court decision that the selection and arrangement of the pages in a typical telephone directory fails to satisfy the creativity requirement underlying the principal of copyright protection and is therefore not protected by copyright. (Feist Publications, Inc. v. Rural Telephone Service Co., 111 S.Ct. 1282 (1991)).

End of Diversion

PG suggests the bottom line for authors is to be aware of whether you are creating something that was inspired by the protected work of someone else or if you are copying the protected work of someone else and making a few tweaks.

He notes that, once copyright protection has lapsed for a creative work, copying is perfectly legal and, in PG’s “freedom to authors” opinion, perfectly ethical as well.

Copyright Is A Question of Control

From Publishers Weekly:

Writing is a strange career. You spend countless hours pouring your soul on the page for no promise of pay, no benefits, and no guarantee anyone will even publish you. Then you go online and find out people think you have it too damn good. That was the recent situation when—as part of the controversy over the Dr. Seuss estate’s decision to cease publication of six largely obscure titles with offensive content—former Vox writer Matthew Yglesias tweeted that “books that are 30 years old should be in the public domain.”

Many agreed with Yglesias and wanted to go further. The top reply suggested “even 15 or 20” years would be sufficient, while others said maybe that was too much. After all, they argued, it’s not like you pay dentists or bakers for work they did years ago!

The debate was a perfect internet storm, in that it made everyone mad, was filled with bad faith arguments, and was entirely pointless. Copyright is not about to drop to 30 years, much less five. Thanks to the 1886 Berne Convention and the author advocacy of Victor Hugo, the global standard is a minimum of life plus 50. (Contrary to popular belief, this standard was set long before Mickey Mouse, though Disney did successfully lobby for an extension in the ’90s.) Still, the kerfuffle highlighted some common misunderstandings about both how authors’ careers and copyright work.

Being a novelist or poet is not like being a baker, dentist, lawyer, or any job that pays wages for services rendered. We give up wages and security in order to get copyright: the right to control the art we create and—if we are very lucky—parlay that intellectual property into some (typically modest amount of) money.

If we must think in business terms, being an author is like being an entrepreneur. Writers have ideas and work for themselves to make those ideas a reality. We build a brand. We do countless hours of unpaid work in the hopes that one day, down the road, it will pay off… or at least get us on a few panels at AWP. It doesn’t work out for most of us, as internet commentators were happy to point out—but that’s true of many industries. The vast majority of restaurants fail within a few years, yet no one claims anyone should be able to walk into a successful restaurant and use the kitchen for free.

When it does work out, it takes time—lots of time: years to write, years to establish a readership, and often years to catch a lucky break. Success tends to come late for authors. If you don’t believe me, go turn on Netflix and watch its recent hits Bridgerton and The Queen’s Gambit, based on decades-old novels by Julia Quinn and the late Walter Tevis, respectively.

Let’s say an author doesn’t ever succeed and spends their life crying over their MacBook. Well, so what? Why shouldn’t they still control their creations? This is what copyright is really about: who gets control. It’s a question that goes beyond money. 

Link to the rest at Publishers Weekly

PG doesn’t agree with everything in the OP.

However, for argument’s sake, he didn’t see anything anything in the OP that justified copyright extending for 50-70 or more years after the author dies.

As a refresher for visitors from the US, in this country copyright is based upon what is generally referred to as the Patent and Copyright Clause of the US Constitution:

[The Congress shall have power] “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Article I Section 8 | Clause 8

PG notes the “limited times” language in the clause.

Yes, 2,000 years is a “limited time” in that it is less than 10,000 years, but PG suggests that’s not what the authors of the language were thinking about.

In 1790, the First Congress, which included more than a few of those who had approved the Constitution, passed The Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies.

The Copyright Act of 1790 granted American authors the right to print, re-print, or publish their work for a period of 14 years and to renew for another fourteen. 

Major revisions of the act were passed in in 1831, 1870, 1909, and 1976.

The 1976 revision was the first time that the life of the author became a method of measuring the length of the copyright term. The 1909 revision’s term was of protection to 28 years with a possible renewal of 28 more years.

Imminent Win For The Public Domain: Court Likely To Compel Musée Rodin To Release Its 3D Scans Of Sculptor’s Works For Free

From Above the Law:

Back in 2019, Techdirt wrote about a fascinating case involving a bogus CC license on a 3D scan of a 3000-year-old bust of Nefertiti. The person at the heart of the saga was the artist and open access activist Cosmo Wenman. His web site has some background on what he calls his “freedom of information projects“:

For more than a decade, museums around the world have been making high-quality 3D scans of important sculptures and ancient artifacts. Many institutions freely share those 3D scans with the public, allowing us to view, copy, adapt, and experiment with the underlying works in ways that have never before been possible. But some keep their scans out of public view, and I’ve been trying to help them see the light.

Following his success in liberating the 3D scan of Nefertiti, Wenman is now trying to do the same with 3D scans of the works of the great French sculptor Auguste Rodin. Many of these scans have been created by the Musée Rodin in Paris. There is a long and entertaining article (in the original French and an English translation – pdf) about Wenman’s pursuit of the 3D scans, and of the Musée Rodin’s refusal to share them. Wenman took an interesting tack, claiming that the museum’s 3D scans were documents subject to France’s freedom of information (FOIA) laws. It worked:

In late 2018 I sent a formal demand to Musée Rodin for access to all its 3D scans, citing French freedom of information laws. When the museum refused to comply, I brought the matter before the French government.

In June of 2019 the French government agency that oversees FOIA matters announced its first-of-its-kind opinion, in my favor; 3D scans produced by French national museums are in fact administrative documents and are subject to public disclosure. Musée Rodin is required by law to give the public access to its 3D scans of Rodin’s works.

Another victory for Wenman, then, but rather a hollow one. Despite the French government agency’s ruling, Musée Rodin continues to withhold the 3D scans. Wenman went on to file a suit against the museum in the Administrative Tribunal of Paris. Wenman wants the court to compel the museum to comply with the law, and to impose “significant” financial penalties for any delay. After more than a year with no response, the court directed the museum to present a defense. At the time of writing, Wenman is still waiting. However, given the unequivocal nature of the rulings against the Musée Rodin, he is confident:

Musée Rodin is going to fight, but I expect to win. The outcome will affect every national museum in France, inform policies at institutions around the world, and have interesting effects on the art market.

I’m shooting for a victory for open access, and freedom and innovation in the arts.

The knock-on effects of one person’s dogged pursuit of a few computer files could have a major impact on the wider availability of 3D scans of sculptures and ancient artifacts — a real win for the public domain.

Link to the rest at Above the Law

First, the application to authors – the 3D scans are a species of intellectual property, just like an author’s intellectual property interest in a story he/she creates.

The major difference is that, if the 3D model had been created from a scan of an original physical work made by or licensed from the creator of that work or as an original digitally-created work rather than one derived from a pre-existing physical object, the creator would have a protectable intellectual property interest in resulting model, the file created and, likely physical instantiations of that creation.

In this case, the scan was made from an original work created by Rodin, not by The Musée Rodin. Since Rodin’s original copyright interest in the original work expired a long time ago, absent some meaningful additional artistic contribution by someone during the 3D scan or with the resulting file, the scan is not a new protectible creation.

If PG goes to a museum and takes an iPhone photo of a 200-year-old painting, he hasn’t created anything new. (Whether he could post-process the photo into something creatively different from the original is a matter of degree. Enough post-processing and it might be a new creation. If PG just tweaked it so it looked a bit better than what the iPhone had produced on its own, probably not.)

Intellectual property experts are free, as usual, to criticize, supplement, etc., PG’s simplified description of the IP interests and their protectability under IP law in the comments below.


It may be obvious to many from the OP, but allow PG to summarize:

  • The Musée Rodin houses a large collection of artworks created by by famous French sculptor August Rodin (1840-1917) at locations in Paris and Meudon, where Rodin lived and worked during the last twenty years of his life.
  • Rodin’s best-known sculpture is The Thinker.
The Thinker, August Rodin

Under the supervision of the Ministry of Culture and Communication, the Musée Rodin is a non-subsidized national museum, a status that is quite unique on the French museum scene. The collections and works of art originating from the Auguste Rodin Donation, as well the acquisitions made by the museum, are the French State’s inalienable property. The Musée Rodin is administered by a board of trustees. The museum’s task is to make Rodin’s work known worldwide and to ensure that the moral right attached to it is respected.

Musée Rodin Public Establishment

It has become common for museums to perform in situ high-resolution 3-D computer scans of, at least, some of their most well-known sculptures. The result of the scan is a digital file that depicts every portion of the sculpture in great detail.

These scans can be easily shared throughout the world for, among other things, detailed examinations and analyses of the sculpture by experts everywhere without the necessity of interfering with the opportunity for the general public to view the original sculpture or risking any sort of damage to or loss of the sculpture by removing it from its current location for such examination. Like any other digital file, exact duplicates can be created at very little cost.

For purposes of a freedom of information request (which is governed by the laws of the country in question), a digital file is, absent special treatment under the law, a document like any other that a government (including government agencies) is required to produce if a FOIA request if filed in proper form.


In the US, per the US Health and Human Services you can file a FOIA request as follows:

The Freedom of Information Act (FOIA) provides public access to all federal agency records except for those records (or portions of those records) that are protected from disclosure by any of nine exemptions or three exclusions (reasons for which an agency may withhold records from a requester).

The exemptions cover:

  1. Classified national defense and foreign relations information
  2. Internal agency rules and practices
  3. Information that is prohibited from disclosure by another law
  4. Trade secrets and other confidential business information
  5. Inter-agency or intra-agency communications that are protected by legal privileges
  6. Information involving matters of personal privacy
  7. Certain information compiled for law enforcement purposes
  8. Information relating to the supervision of financial institutions
  9. Geological information on wells

The three exclusions, which are rarely used, pertain to certain sensitive law enforcement and national security matters.


Cosmo Wenman filed a freedom of information suit in France against the Musée Rodin when the museum apparently objected to his request for a copy of the 3D file of the Rodin statue.

Ultimately, the CADA AKA Commission D’Accès Aux Documents Administratifs (Commission for Access to Administrative Documents) ruled, in part:

the scans of works for which the Rodin Museum ensures the conservation, for purposes of both study and commercial exploitation, constitute administrative documents within the meaning of the aforementioned provisions, as soon as they have been elaborated and are held in the framework of the public service mission entrusted to this establishment. They are therefore, in principle, communicable to anyone who requests it.

The scans are administrative documents and Wenman was entitled to them.

One fact noted in a commentary PG read – The Musée Rodin receives over half of its annual revenue from its commercial activities, selling large and small reproductions of Rodin’s sculptures, printed copies of artworks, mugs, stationery, jewelry, t-shirts, lapel pins, tote bags, etc., with images derived from Rodin’s artworks, etc., as opposed to entrance fees paid by patrons.

So much for the museum’s laser focus on steadfastly protecting the artistic heritage of Rodin.

Once Mr. Wenman has a copies of the digital scans of the artworks in The Musée Rodin, you can expect him to make them widely available for anyone to download at no charge.

Mr. Wenman has been down this road before with the three-thousand-year-old Bust of Nefertiti, held by the Egyptian Museum and Papyrus Collection in Berlin.

You can download the 3-D digital file of the scan at the MakerBot Thingiverse.

Following are two videos that show/explain the 3-D printing process.

The first video is short, depicting the printing process for a smaller-than-life-size copy of the original.

The second video is longer, but more detailed, because the artist/mechanic used a home-sized printer to create a full-sized copy of the original.

Meet YInMn, the First New Blue Pigment in Two Centuries

From Hyperallergic:

Cerulean, azure, navy, royal … Much has been written about the color blue, the first human-made pigment. “Because blue contracts, retreats, it is the color of transcendence, leading us away in pursuit of the infinite,” wrote William Gass in his book On Being Blue: A Philosophical Inquiry. Wassily Kandinsky once mused: “The power of profound meaning is found in blue, and first in its physical movements of retreat from the spectator, of turning in upon its own center […] Blue is the typical heavenly color.”

And now, for the first time in two centuries, a new chemically-made pigment of the celebrated color is available for artists — YInMn Blue. It’s named after its components — Yttrium, Indium, and Manganese — and its luminous, vivid pigment never fades, even if mixed with oil and water.

Like all good discoveries, the new inorganic pigment was identified by coincidence. A team of chemists at Oregon State University (OSU), led by Mas Subramanian, was experimenting with rare earth elements while developing materials for use in electronics in 2009 when the pigment was accidentally created.

Andrew Smith, a graduate student at the time, mixed Yttrium, Indium, Manganese, and Oxygen at about 2000 °F. What emerged from the furnace was a never-before-seen brilliant blue compound. Subramanian understood immediately that his team stumbled on a major discovery.

“People have been looking for a good, durable blue color for a couple of centuries,” the researcher told NPR in 2016.

. . . .

OSU patented the color in 2012, but it took five more years until the United States Environmental Protection Agency (EPA) approved YInMn, at first only for use in industrial coatings and plastics. Last May, the government agency officially approved the new pigment for commercial use, making it available to all.

The vibrant pigment caught attention long before the EPA’s official approval last year. In 2016, Shepherd Color Company acquired the license to sell the pigment commercially for exterior applications. A year later, YInMn Blue inspired a new shade of Crayola crayon called Bluetiful. The pigment has also been popular on Etsy, although the quality and authenticity of these offerings are not guaranteed.

Link to the rest at Hyperallergic

A couple of clarifications concerning the OP:

  1. As a general proposition, you can’t “patent” a color.
  2. The YInMn Blue patent as described in the OP is what is generically called a “Chemical Patent.”
  3. A Chemical Patent protects the use of specific chemicals, molecules, compounds, etc., in experimentation and product development.
  4. The YInMn Blue patent, as issued, protects a complex chemical formula, with variations.
  5. The patent also protects any paint, ink, glass, plastic, or decorative cosmetic preparation composed with the a material created with that chemical formula.

PG will happily accept clarifications by visitors more knowledgeable than he concerning patent law, chemistry or a great many other topics (a low hurdle), but it seems to him that, when it comes to protecting a color during a digital age, chemistry may not provide a comprehensive solution.

What humans perceive as color in the physical world is light that is reflected off of a colored object. One can affect the color perceived by humans by changing the color temperature of the light being directed to the object.

Sunlight has a different color temperature than moon light which has a different color temperature than fluorescent light, for example. While the human brain can make adjustments to modify perceptions to make them seem different than the eye can see, an object will be a measurably different color when observed under direct sunlight at noon than it will under the light of a full moon at midnight. Similarly an object will reflect a different color when observed under sunlight near sunset than under sunlight at noon.

Since we look at screens quite a lot these days, a computer screen is capable of producing the appearance of YInMn Blue without the use of the chemical formula which is protected by the OSU patent.

In fact, the following image of YInMn Blue was presented to PG’s eyes on his computer screen via the OP and is delivered to those who see this post without PG (or PG’s computer) using the protected chemical formula.

{In case you were wondering, Mrs. PG has observed manifestations of OCD (which PG attributes to a lengthy Covid lockdown) in recent weeks. Perhaps visitors to TPV have just observed a similar manifestation themselves.}

YInMn Blue

And here’s Bluetiful!, a new YInMn-ish Crayola color. Although you might not have thought so, colors can have genders. Bluetiful! is female. She is interested in STEAM (Science, Technology, Engineering, the Arts and Mathematics) education.

Nicki Minaj Pays Tracy Chapman $450,000 in Copyright Dispute

From The New York Times:

For months, the entertainment industry’s legal calendar had an intriguing item on the horizon: a copyright trial pitting Tracy Chapman, the revered and reclusive singer-songwriter, against the firebrand rapper Nicki Minaj.

But that trial is not to be. Late last month, the parties agreed to a judgment of copyright infringement against Minaj, and a payment of $450,000 to Chapman, according to documents made public on Thursday in federal court in California, where the case was being adjudicated.

Chapman sued Minaj for copyright infringement in late 2018 over a song called “Sorry,” which borrowed heavily from Chapman’s “Baby Can I Hold You,” released in 1988. The aspect of the case that drew the attention of legal scholars and entertainment litigators was that Minaj’s song, which she recorded with the rapper Nas, was never officially released, although it had been played on the radio by Funkmaster Flex, a celebrity D.J. on the New York radio station Hot 97.

Chapman accused Minaj of using “Baby Can I Hold You” without permission, which she said Minaj had asked for but was denied. Yet Minaj argued that her creation of “Sorry,” even without a license from Chapman, was protected by the doctrine of “fair use” — an exception to copyright law that lets creators borrow copyrighted material under certain conditions.

Their dispute raised thorny questions for musicians and the companies behind them: Can artists be held liable for copyright infringement for works in progress? Do artists need permission even to experiment in the studio?

. . . .

In September, Judge Virginia A. Phillips, of United States District Court in Los Angeles, sided with Minaj on the question of fair use. In a summary judgment decision, Judge Phillips wrote that “uprooting” the common practice of letting artists experiment privately “would limit creativity and stifle innovation within the music industry.”

But the judge allowed the case to go to trial over the question of how the song made its way to Funkmaster Flex. Chapman’s side alleged that Minaj had leaked it, and pointed to substantial correspondence between the two. Minaj said she did not send the track, and Funkmaster Flex said that he had gotten it “from one of his bloggers,” according to the judge’s ruling.

If Minaj had leaked the song herself, or authorized its release through intermediaries, she may have been liable for significant penalties. Court papers show that Minaj’s lawyers made their offer of $450,000, “inclusive of all costs and attorney fees incurred to date,” on Dec. 17, and that Chapman’s team accepted it on Dec. 30.

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

PG hasn’t been following the case except at a distance, but suspects that a lot of the $450K will go to Chapman’s attorneys.

PG hasn’t seen anything about whether Chapman is going after or plans to go after Funkmaster Flex or Hot 97.

OPEN LETTER: Revocation – How authors and performers can reclaim their copyrights

From the Kluwer Copyright Blog:

The letter addressed to the European Commission and the relevant national authorities of EU Member States, identifies the revocation right as “an historic opportunity to achieve better copyright outcomes for creators”, and calls upon governments to explicitly address the right in their consultations about implementing the Copyright Directive.

The letter builds on a collaborative research project between CREATe and the Intellectual Property Research Institute of Australia (IPRIA), University of Melbourne, with the reCreating Europe consortium. The project maps all provisions allowing authors and performers to reclaim their rights. Such laws are already a part of national laws of many EU Member States in some form.

. . . .

The majority of the EU Member States offer some revocation rights to their creators, but they are often limited to certain types of works or agreements. Termination is only one of possible effects of reversion provisions. Most of the rights are not brought to effect automatically, but require creator’s action to make changes to the contractual relationship, which means that the right can be a starting point for renegotiating contracts. Current provisions typically are modelled on analogue practices, and do not reflect digital uses.

The open letter argues that the right of revocation introduced by art. 22 of the Copyright Directive offers a “once-in-a-generation opportunity” to secure new income for creators, new exploitation opportunities for investors and new access for the public. It could help to reclaim culture that would otherwise be lost and provide creators with meaningful new rights to better their position.

Link to the rest at the Kluwer Copyright Blog and thanks to C. for the tip.

(Kluwer is evidently using a cloud provider to host its blog, but has somehow misconfigured the settings for the blog. PG had to do some messing about with the link to get the OP to appear, but it is there and it isn’t a nasty site, just one operated by people who are less than technically apt.)

The option for the creator of a copyright-protected work, like an author or a photographer, to terminate an unfavorable publishing agreement or other license of the creative work is an important one.

On way more than one occasion, a naïve author has signed a disadvantageous publishing agreement that, in effect, lasts forever, and the author receives nothing more than an advance or the very occasional royalty check even though the book is selling lots of copies and making the publisher very rich.

On occasion, a publisher will represent that the contract says something that it does not say in order to induce the author to sign. On occasion, inexpert literary agents will not understand what a contract means and urge an author to sign an agreement that vastly underpays the author for her/his work.

The right for a creator (or the creator’s heirs under some circumstances) to terminate such an agreement and cause the rights to the book to revert to the author so he/she can earn more money from the book is called the right to revert or a reversion right that brings the rights the author signed away back to the author so the author has another chance to receive a far more equitable reward for the author’s creative work.

Here’s a link to a resource referenced in the OP that provides an overview of the rights an author has to regain control of his/her copyrights regardless of prior publishing agreements.

‘Copyright Troll’ Liebowitz Suspended From Manhattan Court

From Bloomberg Law:

The U.S. District Court for the Southern District of New York’s Grievance Committee has suspended notorious copyright attorney Richard Liebowitz from practicing before the court, according to a court order.

The committee cited Liebowitz’s “repeated disregard for orders from this Court and his unwillingness to change despite 19 formal sanctions and scores of other admonishments and warnings from judges across the country” in its amended Monday order to suspend him. The suspension is temporary until the committee issues its final decision on the “strongly supported” disciplinary charges against him.

Liebowitz is known for filing over a thousand lawsuits on behalf of photographers who claim their work was reposted by media outlets and others without permission. He’s been accused of filing frivolous suits to force settlements, and federal courts have called Liebowitz a “copyright troll,” among other things.

In the case where Liebowitz was referred to the committee, Judge Jesse S. Furman also wrote Monday that Liebowitz was required to serve a copy of a June opinion and order sanctioning him on “every one of the firm’s current clients,” and file a copy in pending and future cases brought by him or his firm.

Liebowitz attested that he had complied. But later, Liebowitz identified 113 cases in which he failed to make the filing.

“Had Mr. Liebowitz failed to file the Opinion and Order in a handful of cases, the failure to comply might have been understandable and excusable,” the court said. “But the failure to file it in 113 cases is astonishing and suggests contumaciousness, an egregiously disorganized case management system, or both.”

Link to the rest at Bloomberg Law and thanks to C. for the tip.

PG believes copyrights should be honored, but has no respect for attorneys who engage in these sorts of practices.

He has recently engaged in a series of email exchanges with a California law firm that has branched into the same sort of operation.

Mandatory Deposit of Electronic-Only Books

From The United States Copyright Office:

Section 407 of the Copyright Act generally requires the owner of the copyright in a work published in the United States to deposit two copies with the Copyright Office for use by the Library of Congress. The Register of Copyrights is authorized to exempt certain classes of works from this mandatory deposit requirement. In a 2010 interim rule, the Office codified its longstanding practice of exempting all electronic works that are not available in a physical format. The 2010 interim rule created one exception to this general rule, providing that electronic-only serials published in the United States are subject to mandatory deposit if they are affirmatively demanded by the Office.

In 2018, the Office issued a proposed rule that would make the interim rule final and would make electronic-only books subject to mandatory deposit by way of the same demand process. An “electronic-only book” was defined as electronic literary work published in one volume or a finite number of volumes published in the United States and available only online, with some exclusions for specific types of works such as serials, audiobooks, websites, blogs, and emails.

In June 2020, the Office updated the 2018 proposed rule in response to public comments. The update clarified the scope of material subject to demand and adjusted the provisions governing the use of technological protection measures on deposited material. The Office also provided additional information on the Library’s digital collection strategy and information technology practices.

In November 2020, the Office issued a final rule, to take effect on December 14, 2020. The final rule largely adopts the language set forth in the June 2020 proposed rule, with one additional clarification regarding the rule’s applicability to print-on-demand books.

Link to the rest at The United States Copyright Office

PG notes that the statement above is included in a press release (in typical government-style prose) describing the new rule for copyright registration of digital and print-on-demand books. The complete rule, including more commentary and additional background and explanation of the purpose of the rule is set forth in the embedded PDF below.

[Thanks to Ryan for pointing out some typos in the above paragraph so PG could fix them.]

For eons (in internet time), the US Copyright Office has required that a copyright registrant send two physical copies of printed books to the Copyright office to be transmitted to the Library of Congress.

OTOH, more recently, the Copyright Office has also permitted the registering of a claim of copyright electronically. Such an electronic registration can also include submission of an electronic copy of the work/book for registration purposes in lieu of depositing two physical copies of the “best edition” of the work to be registered with some limitations. (see https://www.copyright.gov/eco/faq.html for more information).

This more recent (in relative terms) rule clarified the right of Microsoft, for an example, to submit an electronic copy of the computer code for Microsoft Office without also sending two copies of a zillion-page printout of that code, likely the only two printed copies in existence, to the Copyright Office with its copyright registration application. (Computer programs have been exempt from physical deposits for some time, but this illustrates PG’s overall point.)

This latest rule change recognizes that, if a registrant is registering a copyright for a book that will exist only in ebook or print-on-demand format, the registrant doesn’t have to send two copies of the printed version of the book to the Copyright Office.

It appears to PG that the Copyright Office has finally come to the conclusion that maintaining electronic records of books to be copyrighted may be just a touch easier and more convenient than sending more and more dead trees to fill up space in Washington.

Of course, as the discussion of the rule indicates, US government computing and electronic data storage systems are way behind the times and have required changes in order to store copies of ebooks in a manner that will allow access to such stored copies for those required to have access or who are entitled to such access under various laws and regulations.

Please note that this is PG’s sarcastic summary of legal stuff to help make it understandable by mere non-lawyers. If PG were writing about this topic for lawyers, it would take a lot more time for him to do so and 99% of the visitors to TPV (including more than a few lawyers) would not get to the end of PG’s bloviations.

federalregister.gov-Mandatory-Deposit-of-Electronic-Only-Books

Led Zeppelin Wins ‘Stairway to Heaven’ Copyright Battle

From Variety:

The U.S. Supreme Court on Monday declined to take up the long-running copyright battle over Led Zeppelin’s “Stairway to Heaven,” leaving in place a ruling that rejected infringement allegations over the 1971 song.

The justices denied a petition aimed at reviving the case, ending six years of litigation over claims that the song’s writers, Jimmy Page and Robert Plant, plagiarized the song’s iconic intro from the 1968 song “Taurus” by the group Spirit.

The decision follows a March victory for the group in which the 9th Circuit Court of Appeals upheld a jury verdict finding the song did not infringe on “Taurus.”

Journalist Michael Skidmore filed the suit in 2014, on behalf of the estate of Randy Wolfe, the late Spirit frontman. After losing at trial, Skidmore appealed to the 9th Circuit.

. . . .

The appeals court’s en banc ruling marked a win for the music industry, which had felt besieged by frivolous copyright suits since the “Blurred Lines” trial in 2015. The appeals court overturned the so-called “inverse ratio rule,” a standard that set a lower bar for similarity if plaintiffs could prove a higher level of access to the infringed work.

The 9th Circuit also made it harder to claim infringement based on a “selection and arrangement” of unprotectable musical elements. Finally, the ruling expressed skepticism about claims based on just a handful of notes.

Link to the rest at Variety

PG admits that the first little bit of each song do sound quite similar.

But, as the OP describes, these are only a “handful of notes” and examining what is really going on in the two introductory portions shows that there are some significant differences. Once past the intro, the two songs are much different.

Additionally this particular pattern of descending notes also appears in more than a few other musical pieces which predate the creation of both songs. That fact alone might indicate that the plaintiff’s copyright claims lack much strength.

PG writing “It was a dark and stormy night” doesn’t provide any substantial basis for PG claiming a copyright to the phrase. “It was a dark and stormy night in Des Moines” isn’t really much different.

Specifically, the court found that eight measures of the two songs were similar. However, Stairway to Heaven is much, much longer than eight measures and the plaintiff had only registered a copyright for a single page of sheet music.

Here is what the the copyright infringement claim was based upon, taken from the copyright filing made by the Plaintiff and included in the Court’s opinion:

Here’s a comparison between the original and the Led Zeppelin version, also from the court’s opinion:

The top two lines are from Taurus, the alleged copyright-protected original, and the bottom two lines are from the introduction to Stairway to Heaven.

The court opinion included the following portion of the testimony of a music expert hired by the the defendants:

Dr. Ferrara testified that the similarities claimed by Skidmore either involve unprotectable common musical elements or are random. For example, Dr. Ferrara explained that the similarity in the three two-note sequences is not musically significant because in each song the sequences were preceded and followed by different notes to form distinct melodies. He described the purported similarity based on these note sequences as akin to arguing that “crab” and “absent” are similar words because they both have the letter pair “ab.” He also testified that the similarity in the “pitch collection” is not musically meaningful because it is akin to arguing that the presence of the same letters in “senator” and “treason” renders the words similar in meaning.

PG notes that when a judge or panel of judges quote a principal expert witness for the defendant, the plaintiff may conclude that she/he/they will not be happy with the court’s decision.

In addition to almost everyone else, judges and lawyers commonly use analogies to describe something complex that is difficult to accurately describe in words. Courts issue their decisions using words and sentences, not musical compositions.

In this respect, Dr. Ferrara, the expert testifying on behalf of the defendants in the pull-quote, earned his almost-certainly large fee by providing analogies that even a tone-deaf judge could understand.

“Crab” and “absent” both contain the letters “ab” in sequence, but the entire words are completely different.

“Senator” and “treason” each contain exactly the same letters, but the order in which the letters appear in the two words is different and the meaning of the two words are not at all the same.

Perfectly lovely analogies that are far easier for 99% of law school graduates to understand than “descending notes of a chromatic musical scale” and “a different ascending line that is played concurrently with the descending chromatic line, and a distinct sequence of pitches in the arpeggios.”

Here’s a video that includes recordings of the melodies created by the plaintiff and the allegedly infringing portion of the defendants’ song.

Since some visitors had problems with an embedded PDF PG included in a recent post, PG will link to a copy of the 9th Circuit Court of Appeals opinion which the US Supreme Court decided to let stand and decline to review.

The opinion is 73 pages long, so you will need to read it to understand the decision and the copyright principles involved. PG’s fluffy little summary is not an adequate substitute for reviewing the whole thing.

However, since you are not facing a final exam in copyright law, you can do whatever you like without receiving a bad grade.

Here’s the link to Skidmore vs. Led Zeppelin

Arthur Conan Doyle’s estate sues Netflix for giving Sherlock Holmes too many feelings

From The Verge:

The estate of Sir Arthur Conan Doyle has sued Netflix over its upcoming film Enola Holmes, arguing that the movie’s depiction of public domain character Sherlock Holmes having emotions and respecting women violates Doyle’s copyright.

Enola Holmes is based on a series of novels by Nancy Springer starring a newly created teenage sister of the famous detective. They feature many elements from Doyle’s Sherlock Holmes stories, and most of these elements aren’t covered by copyright, thanks to a series of court rulings in the early 2010s. Details from 10 stories, however, are still owned by Doyle’s estate. The estate argues that Springer’s books — and by extension Netflix’s adaptation — draw key elements from those stories. It’s suing not only Netflix, but Springer, her publisher Penguin Random House, and the film’s production company for unspecified financial damages.

. . . .

The Doyle estate made a similar argument five years ago in a lawsuit against Miramax for its film Mr. Holmes — among other things, it claimed Mr. Holmes included plot details about Holmes’ retirement, which only happens in the final stories. But its new argument is a lot more abstract: basically, if this movie wants Sherlock Holmes to express emotions, its creators need to pay up.

The complaint alleges that in the public domain stories, Holmes is famously “aloof and unemotional.” Then, that changed because of his creator’s life experiences:

After the stories that are now in the public domain, and before the Copyrighted Stories, the Great War happened. In World War I Conan Doyle lost his eldest son, Arthur Alleyne Kingsley. Four months later he lost his brother, Brigadier-general Innes Doyle. When Conan Doyle came back to Holmes in the Copyrighted Stories between 1923 and 1927, it was no longer enough that the Holmes character was the most brilliant rational and analytical mind. Holmes needed to be human. The character needed to develop human connection and empathy.

Conan Doyle made the surprising artistic decision to have his most famous character—known around the world as a brain without a heart—develop into a character with a heart. Holmes became warmer. He became capable of friendship. He could express emotion. He began to respect women.

He also starts liking dogs, which a judge actually has described as a potentially protected trait.

The Hollywood Reporter notes that Doyle’s estate fought the partial public domain ruling by unsuccessfully arguing that Sherlock Holmes slowly became a complex figure who needed full copyright protection to remain coherent. The estate claimed that losing copyright to some of the stories gave Holmes “multiple personalities.”

So the estate now says Springer and Netflix are basing Enola Holmes on the personality that’s still protected. And the new personality’s key traits include relating to other people and reacting with “warmth and emotion” to a female character who happens to be his immediate family — in other words, some of the most basic updates any author might make to a century-old character.

Link to the rest at The Verge

PG was about to write some comments about showbiz lawsuits and California courts and lawyers.

(PG is a long-time member of The State Bar of California and one of more than 266,000 attorneys licensed to practice law in California, although PG no longer lives in that state. He will attest that there are some very good lawyers in California, there are some very inept lawyers in California and there are some very crazy lawyers in California.)

However, when PG examined the complaint in the Conan Doyle lawsuit, he was surprised to discover that it was filed in the United States District Court for the District of New Mexico by a law firm that appears to be comprised of five attorneys located in Santa Fe, New Mexico, population: 85,000.

There is definitely an interesting story about how a UK corporation created by the heirs of Arthur Conan Doyle connected with a five-attorney firm in Santa Fe.

As mentioned, Plaintiff is a UK corporation.

Defendants are:

  • a Delaware corporation,
  • a UK corporation,
  • limited liabilities formed in
    • Delaware,
    • Georgia and
    • California,
  • two residents of London
  • a resident of Florida.

As it happens, the Santiago E. Campos Federal Courthouse is located in Santa Fe, likely a short walk from the offices of the attorneys representing the Conan Doyle Estate and not a short walk for any of the parties to the lawsuit or their preferred defense attorneys.

There are a total of five permanent Federal District Court judges and one temporary District Court judge in New Mexico. For comparison, California has 60 permanent Federal District Court Judge positions, New York has 52. (per https://www.uscourts.gov/)

PG doesn’t know how busy these New Mexico judges are, but expects none of them wished for a complex copyright lawsuit involving parties from all over the place to land on her/his docket.

Most Federal District Judges in New Mexico and elsewhere are current on the rules of criminal procedure and how to try a drug case. Copyright infringement? Not so much.

PG is pretty certain there are not enough qualified intellectual property trial attorneys with offices in Santa Fe to represent each of the defendants.

The Santa Fe airport boasts daily flights to to Denver, Dallas and Phoenix, so IP trial attorneys located in Los Angeles, New York or London won’t have an easy time getting to court.

PG hasn’t considered the question of federal jurisdiction and venue for a lawsuit involving as many parties from as many places as the Conan Doyle suit includes, but suspects that New Mexico federal courts could probably hear this case.

This case was filed at the end of June. PG hasn’t checked the court records to see if all the defendants have been served with papers and what has happened since the suit was filed.

However, PG will predict that the first response of the defendants has been/will be to strenuously attempt to have the case transferred to someplace with a lot more qualified attorneys and much better air access than Santa Fe.

He also suspects that a more than a few of the defendants had no idea where Santa Fe was when they were served with court papers.

PG is certain that this will be an entertaining (at least for him) case to follow.

[Let PG know in the comments or via the Contact Link if you are not seeing an embedded copy of the Complaint filed in this case and want to see it. When PG tested this post, he could usually see the PDF, but sometimes received an error message.]

Sherlock

Publishers Are Taking the Internet to Court

From The Nation:

hen Covid-19 struck, hundreds of millions of students were suddenly stranded at home without access to teachers or libraries. UNESCO reported that in April, 90 percent of the world’s enrolled students had been adversely affected by the pandemic. In response, the Internet Archive’s Open Library announced the National Emergency Library, a temporary program suspending limits on the number of patrons who could borrow its digital books simultaneously. The Open Library lends at no charge about 4 million digital books, 2.5 million of which are in the public domain, and 1.4 million of which may be under copyright and subject to lending restrictions. (This is roughly equivalent to a medium-sized city library; the New York Public Library, by comparison, holds 21.9 million books and printed materials and 1.78 million e-books, according to 2016 figures from the American Library Association.) But the National Emergency Library wound up creating an emergency of its own—for the future of libraries.

Brewster Kahle, the Internet Archive’s founder and digital librarian, wrote in March that the National Emergency Library would ensure “that students will have access to assigned readings and library materials…for the remainder of the US academic calendar.” He acknowledged that authors and publishers would also be harmed by the pandemic, urged those in a position to buy books to do so, and offered authors a form for removing their own books from the program, if they chose.

More than 100 libraries, archives, and other institutions signed on to a statement of support for the program, including MIT, Penn State, Emory University, the Boston Public Library, Middlebury College, Amherst College, George Washington University, the Claremont Colleges Library, and the Greater Western Library Alliance. Writing in The New Yorker, Harvard history professor and author Jill Lepore joined many media observers in praising the National Emergency Library as “a gift to readers everywhere.”

A number of other authors, however, took to Twitter to complain.

“Guys. Not helpful,” tweeted novelist Neil Gaiman.

“They scan books illegally and put them online. It’s not a library,” novelist Colson Whitehead tweeted in March. (I wrote last week to ask Whitehead what laws he thought were being broken, or whether he’d since altered his views on this matter, and he declined to comment.)

On June 1, Whitehead’s publisher, Penguin Random House, together with fellow megapublishers Hachette, HarperCollins, and Wiley, filed a lawsuit against the Internet Archive alleging “mass copyright infringement.” The Internet Archive closed the National Emergency Library on June 16, citing the lawsuit and calling for the publishers to stand down. But the plaintiffs are continuing to press their claims, and are now seeking to close the whole Open Library permanently.

The trial is set for next year in federal court, with initial disclosures for discovery scheduled to take place next week. The publishers’ “prayer for relief” seeks to destroy the Open Library’s existing books, and to soak the Internet Archive for a lot of money; in their response, the Archive is looking to have its opponents’ claims denied in full, its legal costs paid, and “such other and further relief as the Court deems just and equitable.” But what’s really at stake in this lawsuit is the idea of ownership itself—what it means not only for a library but for anyone to own a book.

The Internet Archive is far more than the Open Library; it’s a nonprofit institution that has become a cornerstone of archival activity throughout the world. Brewster Kahle is an Internet pioneer who was writing about the importance of preserving the digital commons in 1996. He built the Wayback Machine, without which an incalculable amount of the early Web would have been lost for good. The Internet Archive has performed pioneering work in developing public search tools for its own vast collections, such as the television news archive, which researchers and journalists like me use on an almost daily basis in order to contextualize and interpret political reporting. These resources are unique and irreplaceable.

The Internet Archive is a tech partner to hundreds of libraries, including the Library of Congress, for whom it develops techniques for the stewardship of digital content. It helps them build their own Web-based collections with tools such as Archive-It, which is currently used by more than 600 organizations including universities, museums, and government agencies, as well as libraries, to create their own searchable public archives. The Internet Archive repairs broken links on Wikipedia—by the million. It has collected thousands of early computer games, and developed online emulators so they can be played on modern computers. It hosts collections of live music performances, 78s and cylinder recordings, radio shows, films and video. I am leaving a lot out about its groundbreaking work in making scholarly materials more accessible, its projects to expand books to the print-disabled—too many undertakings and achievements to count.

For-profit publishers like HarperCollins or Hachette don’t perform the kind of work required to preserve a cultural posterity. Publishers are not archivists. They obey the dictates of the market. They keep books in print based on market considerations, not cultural ones. Archiving is not in the purview or even the interests of big publishers, who indeed have an incentive to encourage the continuing need to buy.

. . . .

But in a healthy society, the need for authors and artists to be compensated fairly is balanced against the need to preserve a rich and robust public commons for the benefit of the culture as a whole. Publishers are stewards of the right of authors to make a fair living; librarians are stewards of cultural posterity. Brewster Kahle, and the Internet Archive, are librarians, and the Internet Archive is a new kind of library.

. . . .

“I’m a librarian!” [Kahle] told me, back then. “Libraries have had a long history of dealing with authoritarian organizations demanding reader records—just, who’s read what—and this has led to people being rounded up and killed.”

Now Kahle finds himself on the other side of a lawsuit. The key issue in this one is the as-yet-untested legal theory of Controlled Digital Lending (CDL), which the Internet Archive and partner libraries have been working out over the last few years, in order to deal fairly with the new question of lending digitized books within the parameters of existing copyright law. CDL was designed to mirror the age-old library practice of (1) buying or otherwise acquiring a physical book, and (2) loaning it out to one patron at a time.

Like a traditional library, the Internet Archive buys or accepts donations of physical books. The archive scans its physical books, making one digital copy available for each physical book it owns. The digitized copies are then loaned out for a limited period, like a traditional library loan. The physical books from which the scans were made are stored and do not circulate, a practice known as “own-to-loan.”

Harvard copyright scholar and lawyer Kyle Courtney has explained this reasoning very clearly. “Libraries do not need permission or a license to loan those books that they have purchased or acquired,” he said at a recent conference. “Copyright law covers those exact issues.… Congress actually placed all of these specialized copyright exemptions for libraries in the Copyright Act itself.”

The for-profit publishers in the lawsuit, however, do not care for this idea. What they allege in the complaint is this: “Without any license or any payment to authors or publishers, IA [the Internet Archive] scans print books, uploads these illegally scanned books to its servers, and distributes verbatim digital copies of the books in whole via public-facing websites.”

What this ominous description fails to acknowledge is that all libraries that lend e-books “distribute verbatim digital copies of the books in whole via public-facing websites.” Yet the publishers claim later in the same document that they have no beef with regular libraries. They love libraries, they say (“Publishers have long supported public libraries, recognizing the significant benefits to the public of ready access to books and other publications”), and are “in partnership” with them: “This partnership turns upon a well-developed and longstanding library market, through which public libraries buy print books and license ebooks (or agree to terms of sale for ebooks) from publishers.”

The real issue emerges here: The words “license ebooks” are the most important ones in the whole lawsuit.

Publishers approve of libraries paying for e-book licenses because they’re temporary, just like your right to watch a movie on Netflix is temporary and can evaporate at any moment. In the same way, publishers would like to see libraries obliged to license, not to own, books—that is, continue to pay for the same book again and again. That’s what this lawsuit is really about. It’s impossible to avoid the conclusion that publishers took advantage of the pandemic to achieve what they had not been able to achieve previously: to turn the library system into a “reading as a service” operation from which they can squeeze profits forever.

Their argument also hinges on the notion that it’s illegal to scan a book that you own. Note that this is what’s being claimed in the complaint: that the books are “illegally scanned,” as Whitehead tweeted back in March. It’s not just the distribution of “pirated” copies they’re trying to prevent. It’s doing as you wish with your own property.

This runs deeper than the question of digital format. NYU law professor Jason Schultz, co-author of The End of Ownership, explained it in an e-mail: “The key here is that our law and cultures have always distinguished between owning something and temporarily purchasing access to something. Most people know the difference between owning a home and renting one, or owning a tuxedo or renting one. We also know this with most media, for example the difference between buying a copy of a film on DVD and going to see it in the theater.”

. . . .

As Schultz elaborated: “For each physical book that a library owns, it can lend it out to whomever it chooses for as long as it wants and the copyright owner has no say in how such lending happens. But here, because digital technology is involved, the publishers are asserting that they can control how/when/where/why libraries lend out digital copies.… In other words, they want to change the rules in their favor and take away one of the most cherished and valuable contributions that libraries make to society—allowing members of the public to read for free from the library’s collection.”

. . . .

“Libraries buy, preserve, and lend,” he said. “That’s been the model forever. [Libraries] actually supply about 20 percent of the revenue to the publishing industry. But if they cannot buy, preserve, and lend—if all they become is a redistributor, a Netflix for books—my God, we have a society that can get really out of control. Because if a publisher maintains control over every reading event, who’s allowed to read it, when are they allowed to read it, if they’re allowed to read it, and be able to prevent anybody, or particular regions, from being able to see something, we are in George Orwell world.

“What libraries do, is they buy, preserve, and lend. What this lawsuit is about—they’re saying the libraries cannot buy, they cannot preserve, and they cannot lend.”

Link to the rest at The Nation

Green Eggs and Shoes: Dr. Seuss Licenses Footwear

From Publishing Perspectives:

Kust when you thought it was safe to step out in your new Vans National Geographic sneakers without fear of being out of date, the Dr. Seuss empire is ready to put you on a different path with a new collection licensed to Skechers.

As the Seussians like to say, the Skechers people are “stepping into the iconic world” of Theodor Geisel. No need to tiptoe around the obvious metaphors, right?

The characters laced up in the new line of Skechers are from The Cat in the Hat. And, like the National Geographic kicks at Vans, these Seuss slippers are made for both children and adults who hope that walking in whimsy might offer traction on the slippery slope that is 2020.

In describing Skechers’ rationale, the company’s president, Michael Greenberg, starts with the obvious, saying in a prepared statement, “Dr. Seuss is one of the world’s biggest cultural icons—read, shared and celebrated by millions since the 1950s.”

Greenberg gets closer to the actual issue, then, saying, “We’ve taken our most popular footwear styles and infused them with Dr. Seuss’s one-of-a-kind designs, delivering the unique charm that only he [the late Geisel] can offer—even creating matching pairs that parents and their kids can wear together.”

. . . .

And as it turns out, branding specialists are fond of shoes not least because, as Emma Bedford wrote at Statistica in July, the American consumer averages US$392 on footwear over the course of a year. The biggest age demographic for the popularity of shoes, the report tells us, is 35 to 44 years. Much of the trend is concentrated across the age breaks of 25 to 54—lots of those folks old enough to know Seuss, right?

As we know, Seuss Enterprises is an expansive juggernaut of rights and licensing, most recently, as we reported, going into Slovenia, Albania, and Germany with new and/or broadened licensing agreements.

Link to the rest at Publishing Perspectives

PG noted that the publisher of The Cat in the Hat, Penguin Random House, may not be the one doing the licensing (and receiving the licensing fees). Per the OP, licensing is conducted by “Seuss Enterprises” (formally, Dr. Seuss Enterprises, L.P.)

Per the Dr. Seuss Enterprises, L.P. link above:

Dr. Seuss Enterprises is a leading children’s entertainment company committed to care taking Theodor Seuss Geisel’s (Dr. Seuss) legacy, ensuring that each generation can experience the amazing world of Dr. Seuss. Established in 1993 and based in San Diego, CA, the company’s global portfolio complements the roster of iconic Dr. Seuss books, and includes films, TV shows, stage productions, exhibitions, digital media, licensed merchandise, and other strategic partnerships. Ted Geisel once said he never wanted to license his characters to anyone who would “round out the edges” – a guiding principle at Dr. Seuss Enterprises. For more information about Dr. Seuss and his works, visit seussville.com.

A Feud in Wolf-Kink Erotica Raises a Deep Legal Question

From The New York Times:

Addison Cain was living in Kyoto, volunteering at a shrine and studying indigenous Japanese religion. She was supposed to be working on a scholarly book about her research, but started writing intensely erotic Batman fan fiction instead.

It happened almost by accident. It was 2012, and Ms. Cain — who grew up in Orange County, Calif., under a different name — was three years out of college, alone abroad with a lot of time on her hands. Her command of Japanese was halting, and English titles in bookstores were wildly expensive. So Ms. Cain started reading things she could find for free online, and soon discovered fanfic — stories by amateurs that borrow characters and plots from established pop-cultural franchises.

Ms. Cain began devouring works set in the world of Christopher Nolan’s “Dark Knight” trilogy. She decided to write some of her own, featuring Batman’s nemesis Bane as a sexy antihero, and posted them for free online. She quickly developed a fan base, becoming something of a star in her sub-subgenre.

A few years later, she was living in Arlington, Va., and working as a bartender when she began to wonder if she could turn her hobby into a business. Her husband and parents discouraged her from pursuing something so impractical. Agents were equally dismissive, rejecting or ignoring Ms. Cain’s queries for more than a year. Then, a fellow writer helped Ms. Cain send a manuscript to Blushing Books, a small publishing house in Charlottesville. An editor read it overnight and sent her a contract the next day.

In the spring of 2016, she published “Born to Be Bound,” an adaptation of her fanfic. The story takes place on a future earth where most of humanity has died from a plague and survivors live under a dome, divided into a wolfpack-like hierarchy of dominant Alphas, neutral Betas and submissive Omegas. A powerful, brutish Alpha named Shepherd takes an Omega woman named Claire captive, and they engage in rough, wolfish sex.

Ms. Cain’s fans posted nearly 100 positive reviews on Amazon, enough to get her some visibility. “Unapologetically raw and deliciously filthy,” read one glowing blurb. The debut was a hit. She rushed out several more titles, and the series grossed some $370,000, according to her publisher.

For the next two years, Ms. Cain published at breakneck speed, producing a novel every few months by repurposing her older fan fiction, keeping her books in the algorithmic sweet spot of Amazon’s new releases and turning herself into a recognizable brand. “Dip your toes into the erotica pool,” she said on a 2016 sci-fi and fantasy podcast. “There’s nothing to do here but make money.”

Then, in 2018, Ms. Cain heard about an up-and-coming fantasy writer with the pen name Zoey Ellis, who had published an erotic fantasy series with a premise that sounded awfully familiar. It featured an Alpha and Omega couple, and lots of lupine sex. The more Ms. Cain learned about “Myth of Omega” and its first installment, “Crave to Conquer,” the more outraged she became. In both books, Alpha men are overpowered by the scent of Omega heroines and take them hostage.

. . . .

Ms. Cain urged Blushing Books to do something. The publisher sent copyright violation notices to more than half a dozen online retailers, alleging that Ms. Ellis’s story was “a copy” with scenes that were “almost identical to Addison Cain’s book.” Most of the outlets, including Barnes & Noble, iTunes, and Apple, removed Ms. Ellis’s work immediately. Ms. Cain’s readers flocked to her defense. “This is a rip off of Addison Cain,” one irate reader wrote on Goodreads. “So disappointed in this author and I hope Mrs. Cain seeks legal charges against you for stealing her work! Shame on you!”

It’s hard to imagine that two writers could independently create such bizarrely specific fantasy scenarios. As it turns out, neither of them did. Both writers built their plots with common elements from a booming, fan-generated body of literature called the Omegaverse.

The dispute between Ms. Cain and Ms. Ellis is a kink-laden microcosm of tactics at play throughout the fanfic industry. As the genre commercializes, authors aggressively defend their livelihoods, sometimes using a 1998 law, the Digital Millennium Copyright Act, to get online retailers to remove competitors’ books. When making a claim, a creator must have a “good faith belief” that her ownership of the work in question has been infringed.

But what does that mean when the ultimate source material is a crowdsourced collective? The question has members of the Omegaverse community choosing sides between Ms. Cain and Ms. Ellis — as will a federal judge in Virginia, who is considering whether the allegations, and the consequences, merit a payout of more than a million dollars.

. . . .

While some traditional authors have derided fan fiction writers as creative parasites, there isn’t really any way to stop them. Such works are legal as long as writers post them for free and don’t try to sell stories based on copyrighted material.

But too much money was at stake for the genre to remain amateur forever. E L James’s blockbuster series “Fifty Shades of Grey,” which sold more than 150 million copies, started as fanfic based on Stephenie Meyer’s “Twilight” vampire saga. By swapping out copyrighted characters for nominally original ones — a practice known as “filing off the serial numbers” — fanfic writers like Ms. James, Christina Lauren and the cheekily named Tara Sue Me have leapfrogged into for-profit publishing.

As more fan fiction writers cross over into commercial publishing, turf wars have erupted. “Fan fiction made authors and publishers realize there was a thriving market for this stuff,” said Rebecca Tushnet, a copyright expert at Harvard Law School. “There’s much more of it, so there’s more opportunity for conflict.”

. . . .

The appetite for such tales is large and growing. In the past decade, more than 70,000 stories set in the Omegaverse have been published on the fan fiction site Archive of Our Own. As it became more popular, the Omegaverse transcended individual fandoms and became an established genre on its own.

Writers began publishing Omegaverse stories with original characters and settings, and authors started to publish them for profit. On Amazon, there are hundreds of novels for sale, including titles like “Pregnant Rock Star Omega,” “Wolf Spirit: A Reverse Harem Omegaverse Romance” and “Some Bunny to Love: An M/M MPreg Shifter Romance,” an improbable tale involving an Alpha male who can transform into a rabbit.

This was the thriving commercial backdrop to Ms. Cain’s allegation that Ms. Ellis stole her material. Ms. Ellis thought that the claim was absurd — and was prepared to say so in court.

. . . .

One day last spring, Ms. Ellis met me for coffee at a hotel near Paddington Station. She doesn’t seem like someone who writes dark, edgy, sometimes violent erotica. She’s young, cheerful, and works in education in London, which is one of the reasons she declines to publish under her real name. Most days, she gets up at four in the morning to write, then heads to the school where she works. On her Amazon author page, she describes herself as a “cat mama” who loves “sexual tension that jumps off the page.”

Ms. Ellis said she got into fan fiction in 2006. She read stories set in the Harry Potter universe at first, then moved on to other fandoms, including one for the BBC’s “Sherlock,” starring Benedict Cumberbatch, that introduced her to the Omegaverse. The genre was unlike anything else she’d encountered. She began dabbling in her own original writing, and in late 2017 began working on the “Myth of Omega” series.

. . . .

“You have to make sure you use the tropes of Omegaverse in order to be recognized by fans of the genre,” Ms. Ellis said. “Crave to Conquer” and its sequel, “Crave to Capture,” were published in early 2018 by Quill Ink Books, a London company she founded. Readers gave the series glowing reviews on Goodreads and Amazon, calling it “sensational new Omegaverse!” and the “best Omega yet.”

In late April 2018, Ms. Ellis got an email from a reader who had ordered one of her books from Barnes & Noble, then learned that it wasn’t available anymore. She soon discovered that all of her Omegaverse books had disappeared from major stores, all because of a claim of copyright infringement from Ms. Cain and her publisher. Ms. Ellis found it bewildering.

“I couldn’t see how a story I had written using recognized tropes from a shared universe, to tell a story that was quite different than anything else out there commercially, could be targeted in that way,” Ms. Ellis said. “There are moments and scenarios that seem almost identical, but it’s a trope that can be found in hundreds of stories.”

A lawyer for Ms. Ellis and Quill filed counter-notices to websites that had removed her books. Some took weeks to restore the titles; others took months. There was no way to recover the lost sales. “As a new author, I was building momentum, and that momentum was lost,” Ms. Ellis said. And she worried that the “plagiarist” label would permanently mar her reputation.

Ms. Ellis decided to sue. “Everything would have been in question, my integrity would have been questioned, my ability to write and tell stories — all of that would have been under threat if I didn’t challenge these claims,” she said.

In the fall of 2018, Quill Ink filed against Blushing Books and Ms. Cain in federal court in Oklahoma, where Ms. Ellis’s digital distributor is based, seeking $1.25 million in damages for defamation, interfering with Ms. Ellis’s career, and for filing false copyright infringement notices. In the suit, Quill’s lawyers argued that “no one owns the ‘omegaverse’ or the various tropes that define ‘omegaverse.’”

Ms. Ellis’s lawyers thought they had a strong position. But they struggled to find a prior case that addressed whether fan fiction tropes could be protected by copyright.

“We were looking at cases to see if the courts had ever dealt with anything like this before, dealing with the emergence of this new literary genre,” said Gideon Lincecum, a lawyer who represents Quill Ink and Ms. Ellis. “We found there weren’t any.”

. . . .

Last year, an author who writes in a popular romance subgenre called “Reverse Harem High School Bully Romance” — a trope in which a teenage female character has several aggressive male suitors — claimed that another author had copied her books, and demanded that she remove them. The accused author briefly removed her work from Amazon, but restored them after consulting a lawyer.

Other authors have tried to use trademarks to go after their rivals. Writers have attempted to trademark generic phrases like “dragon slayer” and even the word “dark.” In 2018, the self-published romance author Faleena Hopkins caused a scandal after she registered a trademark for the word “cocky,” and sent infringement notices to other romance authors who used the word in their titles. Amazon temporarily removed some books, including “Her Cocky Firefighters” and “Her Cocky Doctors.” After suing several people unsuccessfully, Ms. Hopkins backed down.

Like Cockygate, the Omegaverse case reveals how easily intellectual property law can be weaponized by authors seeking to take down their rivals. Under the Digital Millennium Copyright Act, individuals or companies can send takedown notices to retailers as long as they have a good faith belief that their work has been infringed. Retailers are protected from being named in related litigation if they remove the material, and many websites comply with D.M.C.A. notices without even investigating the claims. Legal experts say the system is easily abused.

“We’ve seen lots of examples of people sending D.M.C.A. notices when it’s pretty obvious that they didn’t think there was copyright infringement,” said Mitch Stoltz, a senior staff attorney for the Electronic Frontier Foundation, a nonprofit digital rights group. “There’s not much accountability.”

On May 21, the U.S. Copyright Office released a report detailing how the 22-year-old D.M.C.A. has failed to keep pace with the anarchic digital ecosystem, as online platforms have been overwhelmed by a crushing volume of takedown notices. Between 1998 and 2010, Google received fewer than three million such notices; in 2017, the company got more than 880 million — an increase of more than 29,000 percent, according to the report. Many requests are legitimate, but the report notes that other motives include “anti-competitive purposes, to harass a platform or consumer, or to try and chill speech that the rightsholder does not like.”

Amazon agrees that it’s a problem. As the rise of self-publishing has produced a flood of digital content, authors frequently use copyright notices to squash their competition. During a public hearing hosted by the U.S. Copyright Office in 2016, Stephen Worth, Amazon’s associate general counsel, said that fraudulent copyright complaints by authors accounted for “more than half of the takedown notices” the company receives. “We need to fix the problem of notices that are used improperly to attack others’ works maliciously,” he said.

In the Omegaverse case, Ms. Cain’s claim of copyright infringement against Ms. Ellis has struck some as especially tenuous. “They are not very original, either one of them,” said Kristina Busse, the author of “Framing Fan Fiction,” who has written academic essays about the Omegaverse and submitted expert witness testimony for the case on Ms. Ellis’s behalf. “They both stole from fandom or existing tropes in the wild.”

Intellectual property experts say copyright protection applies to the expression of ideas through particular phrasing, but doesn’t cover literary tropes and standard plot points. The writer of a crime novel, for example, can’t copyright the notion of a body discovered in the first act and the killer getting caught in the end.

But the Omegaverse case is likely the first time these legal arguments have been invoked in a dispute over works that grew out of a corpus of fan fiction generated informally by thousands of writers.

Link to the rest at The New York Times

PG will note that, both before and after the NYT article was published, a couple of truly nasty lawsuits between the two authors and/or their publishing entities were being fought.

PG will observe that, among lawyers, if litigation of any sort features attorneys being replaced by new attorneys on either or both sides during the litigation, uninvolved attorneys may conclude that the case may be a difficult one for a variety of reasons. Some lawyers, as a matter of general policy, will refuse to accept a case in which prior counsel quit or was fired (assuming that prior counsel is among the few practicing attorneys generally known to be an idiot, a situation which is even more rare than a client wanting to switch legal horses in the middle of a stream).

That said, Ms. Cain was successful in getting the suit filed against her and/or associated entities by Ms. Ellis dismissed.

Here’s a link to Ms. Cain’s story of the lawsuit. In her story, Ms. Cain claims The New York Times did not present the facts behind the dispute with complete accuracy.

PG doesn’t know if Ms. Ellis has made any public comment concerning the disposition of the case. If any of the visitors TPV knows of such a comment by Ms. Ellis, PG would be happy to review it if he receives information about it. The Contact link on TPV is an easy way to send such information to him.

May the 4th be with Star Wars Intellectual Property

From Suiter/Schwantz:

Since the first film of the Star Wars saga, released in 1977, George Lucas and Lucasfilm have become profoundly adept at dealing with legal matters concerning intellectual property. With 205 patents, 1,077 individual trademark applications, and 3,489 registered copyrights under the Lucasfilm empire, it is clear that Lucas and Lucasfilm have been nothing but persistent in protecting their intellectual property rights.

. . . .

As noted above, Lucasfilms owns over 1,000 individual trademarks. Furthermore, many of Lucasfilm’s trademarked phrases and words include registrations in multiple international classes, claiming protection in a wide variety goods and services. Unsurprisingly, Lucasfilm has trademarked the term “Star Wars” (U.S. Registration No. 1127229), which was issued December 4, 1979. Additionally, many Star Wars characters have been trademarked, including R2-D2, Darth Vader, Luke Skywalker, Princess Leia Organa, Ben (Obi-Wan) Kenobi, and Chewbacca. Lucasfilm uses the “Star Wars” and related Star Wars trademarks on a variety of goods, such as clothing, costumes, toys, and entire theme parks. To take its IP protection even further, Lucasfilm has even trademarked fun Star Wars-related phrases, such as “May the 4th be With You.” Additionally, a trademark application for Han Solo’s famous line “I got a bad feeling about this” is currently pending with the United States Patent and Trademark Office (USPTO).

George Lucas and Lucasfilm have even received trademark protection for the popular word “Droid,” a term coined by Lucas in the 1977 film Star Wars Episdoe IV: A New Hope when referencing R2-D2, C-3PO, and other automatons. Due to the fact that the term “droid” is protected by trademark, companies that wish to use the term in shows or films now have to pay Lucasfilm to use the word, or prepare to have possible legal action taken against them.

Lucasfilms has registered over 3,489 copyrights since 1978. The copyrights, a range of artistic expressions including scripts, sound recordings, and movie posters. Other copyrighted works include read-along story books with CDs, such as “Star Wars: Attack of the Clones,” adventure books, and chapter books. The copyrighted chapter book titled “Darth Vader and Friends,” a humorous title which plays on Darth Vader’s infamous sullen attitude and lack of many friends, explores the many friendships that have developed within the Star Wars saga.

Lucasfilm has even gone as far as to copyright movie taglines. For example, the tagline, “The next chapter in the Skywalker saga continues as Rey develops her newly discovered abilities with the guidance of Luke Skywalker, who is unsettled by the strength of her powers.” is from newest Star Wars film set to premier this Thursday, December 14th.

Link to the rest at Suiter/Schwantz

Creator Groups Respond to Copyright Office’s Proposed Rule Changes to Ease Notice of Termination Requirements

From The Authors Guild:

The Authors Guild submitted comments in response to the Copyright Office’s proposed changes to its requirements for serving and filing notices of termination. Sections 203 and 304 of the Copyright Act give authors the right to terminate any grant of rights or contract after 35-40 years (or 56-61 years in the case of copyrights secured before 1978) by sending the grantee a notice of termination and recording it with the Copyright Office. The recent proposed changes would make the process of recording the notices easier by, among other things, giving the Copyright Office discretion to record notices that are untimely, and setting the date of recordation to the date on which the Office receives a copy of the notice instead of the date it receives the notice, fee, and other elements. Nine other creator organizations joined the Guild’s comments, which you can read below. 

Link to the rest at The Authors Guild

Following are excerpts from The Author’s Guild letter (a link to the entire letter is at the OP):

As the Copyright Office is well aware, the hard-won right to terminate grants of copyright
ownership, control and use after a set number of years, with certain exceptions and limitations,
were included in the U.S. Copyright Act of 1976 over the energetic objections of third-party
assignees. Congress acted in this regard as a result of its recognition of the inherent fairness and
necessity of such provisions in support of the advancement of the American creative community
and national culture, as envisioned under Article I, Section 8 of the U.S. Constitution.
The plain fact underlying that visionary decision in 1976 by members of Congress is that
the accurate valuation of new works in virtually every artistic discipline is by definition an
impossible task. Under such circumstances, the only way to ensure that creators are fairly
compensated for creating works of enormous popularity and value is to legally empower them to
recapture copyright ownership or rights at some reasonable point after the grant. This new and
unique copyright termination rights regime, which commenced in 1978, has proven to be far more
effective in protecting the abilities of authors and their heirs to survive in the always-difficult
economic environment of the arts than the system of bifurcated copyright terms accomplished
under the 1909 Copyright Act.

. . . .

We strongly support the Office’s proposed amendment to restore its discretion to record
untimely notices “if equitable circumstances warrant.” As the Office notes in its 2010 analysis of

gap grants, “[t]ermination rights…have an equitable function; they exist to allow authors or their
heirs a second opportunity to share in the economic success of their works.”3
Considering that refusal to record a notice of termination can extinguish the right of
termination, the Office’s discretion in making equitable judgments to the extent allowed by the
statutes is vitally important. The Office, for its part, has diligently served as an equitable arbiter to
ensure that ambiguities in the termination statutes are resolved in favor of the termination
provision’s intended beneficiaries—authors.4 At the start of the decade, the Office undertook a
comprehensive analysis of “gap grants” to understand the consequences for grantors who sign a
contract years in advance of the work’s creation, something that is common in many creative
industries. In its report, the Office recognized that:

[T]he act of recordation by the Office and the refusal of recordation by the Office
do not carry equal weight under the law. The latter may permanently invalidate a
notice of termination that is otherwise legally sound. This fact and Office’s
obligation to provide clear guidance in its practices and the regulations compel the
Office to record [emphasis added] rather than reject notices of termination filed
under section 203.5

The Office notes in the present notice that the change in wording—from “the Copyright
Office reserves the right to refuse recordation of a notice of termination if….such notice of termination is untimely” to “the Copyright Office will refuse recordation of a notice of termination
as such if…such notice of termination is untimely” [emphasis added]—occurred in 2017 as part of
the parallel rulemaking on modernizing recordation practices without any discussion of reasons or
“whether [the change] was intended to narrow the Office’s discretion in this area.”6 Because this
change did not issue from rulemaking specifically about limiting the Office’s discretion, it’s
reasonable to assume that it does not compel the Office to reject untimely notices of termination
without respect to equitable circumstances even if the apparent ambiguity created by replacing
“reserves the right” to “will” opens one such interpretation. Nevertheless, the alteration that the
Office is now proposing—replacing “will” to “may”—removes the ambiguity and realigns the
wording with the Office’s practice of recording notices with minor errors as long as the mistakes
were made in good faith.

. . . .

Applying the Harmless Error Standard to Recordation Rules

We also support the proposed amendments to § 201.10(e)(1)–(2) to make compliance with
the Office’s recordation rules subject to the harmless error standard. Currently, the Office applies
the harmless error standard with respect to information contained in the notice to excuse good
faith errors that do not affect the adequacy of notice to the grantee. As such, the harmless error
standard adequately balances the equitable importance of the termination right for authors with
the practical necessity of providing enough information to the grantee to make them aware that
their rights in the work will expire on a certain date. A stricter compliance standard would burden
the ability of grantors to reclaim their rights, while a looser standard excusing even errors that
grossly misidentify the title or dates would defeat the purpose of the notice requirement. We think
this is a sensible approach that should apply to all requirements pertaining to termination notices.

. . . .

Identification of Work

We think that allowing remitters to identify the work by either title or registration number
or both makes good sense, and we support the proposed changes to § 201.10 (b)(2)(iv). We agree
with the Office that there is a greater risk of material errors being made by mistakes in the
registration number that could affect the adequacy of a notice (such as a transposition error in the
registration number that identifies another work), and that this risk should be noted in the
Office’s instructions for remitters. The Office might also consider issuing a circular specifically
discussing common errors that can materially affect the adequacy of a notice, with examples of
material and harmless errors.

. . . .

Optional Form for Remitters

We strongly support the Copyright Office’s creation of a form or template to assist
remitters in creating and serving notices of termination to help ensure that all of the required
regulatory and statutory elements are included. An online form that creators could fill out to
generate a letter would be ideal. The creator could simply print out the termination notice letter
for physical service (or serve it by email if and when the Office starts allowing service by email).
The Office might even consider integrating the termination form into the Enterprise Copyright
System (ECS) to harness the power of a centralized and interlinked database. For instance, the

Office could consider programming automated alerts that would pop up if any information
entered by the user in the termination form conflicts with information in the registration record (if
one exists), thereby giving the notice-filer a chance to correct the erroneous information before
service. The feasibility of additional functionalities, such as allowing users to serve the notice on
authenticated grantees (for example, those grantees who have used the ECS to record the transfer
and/or registered the work, and opted in for service in this manner), could be considered further
down the line. In short, the integration of a fillable form into the ECS has a lot of potential to
make the recordation of termination notices more efficient. The Office, however, should make it
conspicuously clear at all times that using the form to generate and serve a notice does not
guarantee recordation, and that ultimately the notice-filer is responsible for locating, entering, and
verifying the accuracy of the information contained in the notice of termination.

Link to the rest at The Authors Guild

PG found a lot of good changes described in the original proposal. The AG’s support for the Copyright Office to prepare a template of the form necessary would also speed up the job of creating a form that included all the requisite elements required under the law.

Attorneys that do a lot of this sort of work (well, there are not actually a lot of authors or heirs of authors who know about their right to terminate, so, compared to the number of publishing contracts signed, the number of notices of termination of those contracts are miniscule) have developed (or copied) form templates that address all the current requirements.

But, providing an online form template would allow more authors to do the job themselves and/or cost authors less because more attorneys would be able to provide assistance in filling out the forms.

There are a number of IP/Copyright/Publishing attorneys who visit TPV on a regular basis. PG encourages any of them who have thoughts about this topic to share them in the comments.

PG has written about the statutory rights of authors to terminate publishing agreements they have signed on several occasions, the first time in 2011. Here’s a link to a general explanation of the process and requirements. Basically, for publishing contracts executed by the author on or after January 1, 1978, the right to terminate opens 35 years after a publishing contract was signed (or, more commonly for book contracts, 35 years after the date of first publication) and continues for five years thereafter.

There are some other elements and exceptions, but the gist for most authors of books is the option to terminate starts 35 years after first publication and extends for 5 years to 40 years after first publication.

Under its current rules, everything the author does and every document Copyright Office needs to receive needs to be perfect or made perfect before the 40-year closing of the window. Among other changes, the proposed rules allow the author (or red-faced attorney for author) to make an effective filing, even with some relatively small errors, before the window closes, then fix fix the errors thereafter.

For the math-impaired, 2020 minus 35 is 1985.

1985 New York Times Bestsellers included:

THE HUNT FOR RED OCTOBER, by Tom Clancy

THE CIDER HOUSE RULES, by John Irving

CHAPTERHOUSE: DUNE, by Frank Herbert

TEXAS, by James A. Michener

LONESOME DOVE, by Larry McMurtry

SECRETS, by Danielle Steel

FAMILY ALBUM, by Danielle Steel

LUCKY, by Jackie Collins

PROOF, by Dick Francis

THE MAMMOTH HUNTERS, by Jean M. Auel

LAKE WOBEGON DAYS, by Garrison Keillor

THE TALISMAN, by Stephen King and Peter Straub

THINNER, by Richard Bachman (Stephen King)

CONTACT, by Carl Sagan

THE ACCIDENTAL TOURIST, by Anne Tyler

THE VAMPIRE LESTAT, by Anne Rice

MEXICO SET, by Len Deighton

IF TOMORROW COMES, by Sidney Sheldon

MINDBEND, by Robin Cook

THE SICILIAN, by Mario Puzo

A LIGHT IN THE ATTIC, by Shel Silverstein

SON OF THE MORNING STAR, by Evan S. Connell

LOVING EACH OTHER, by Leo Buscaglia

MOSES THE KITTEN, by James Herriot

Books Published in 1985 that were not bestsellers in that year:

THE HANDMAID’S TALE, by Margaret Atwood

ENDER’S GAME, by Orson Scott Card

THE ACCIDENTAL TOURIST, by Anne Tyler

IF YOU GIVE A MOUSE A COOKIE, by Laura Joffe Numeroff

SARAH, PLAIN AND TALL, by Patricia MacLachlan

Internet Archive Responds to Publishers’ Copyright Lawsuit

From Publishing Perspectives:

Following the June 1 filing of a copyright infringement lawsuit by four publisher-members of the Association of American Publishers—including three of the Big Five—the Internet Archive has made its scheduled response and released to news media today (July 29) a copy of its filing with the US District Court for the Southern District of New York.

As Publishing Perspectives readers will remember, this is the suit that asks the court to enjoin the archive’s scanning, public display, and distribution of whole literary works—which it offers to the public through what the association terms “global-facing businesses” branded the Open Library and National Emergency Library. These are found at both openlibrary.org and archive.org.

. . . .

What underlies the contention here is a concept called Controlled Digital Lending, a notion never tested in court and widely considered suspect by many in the publishing industry and author corps.

Controlled Digital Lending’s essential position is that it’s fine for a nonprofit like the archive or a library to scan a print copy of a book it owns, then lend that digital scan out on a one-copy-per-one-user basis. The print copy is to be unavailable while the digital copy is loaned, meaning that only one copy is out at a time in any format, and an author or publisher has the right to opt out of this by asking. Many rights holders have, indeed, asked to opt out because, as they see it, the user of a loaned digital copy of their book has paid nothing for that loan and this means copyright revenue has gone unpaid.

Publishers and authors thus claim that Controlled Digital Lending is not a valid form of “fair use” (called “fair dealing” in some cultures) under copyright law, and in normal procedures with libraries, a publisher’s arrangement for a digital book licenses the library to lend it out only for a certain number of loans and in a set time frame, after which a new license must be bought.

. . . .

In a blog post dated today at the Internet Archive’s site, Kahle lays out the nonprofit’s stance on the lawsuit.

Probably a point of agreement all around is that however much the National Emergency Library may have prompted the suit, the real issue is Controlled Digital Lending. And Kahle goes right to it in his opening line, writing that the lawsuit’s intent is “to end the practice of Controlled Digital Lending,” which he writes is “the digital equivalent of traditional library lending.”

He also continues to see the pandemic as an element of his position, writing, “As we launch into a fall semester that is largely remote, we must offer our students the best information to learn from—collections that were purchased over centuries and are now being digitized. What is at stake with this lawsuit? Every digital learner’s access to library books. That is why the Internet Archive is standing up to defend the rights of  hundreds of libraries that are using Controlled Digital Lending.”

. . . .

“These publishers call for the destruction of the 1.5 million digital books that Internet Archive makes available to our patrons.

“This form of digital book burning,” he writes, “is unprecedented and unfairly disadvantages people with print disabilities. For the blind, ebooks are a lifeline, yet less than one in 10 exists in accessible formats. Since 2010, Internet Archive has made our lending library available to the blind and print disabled community, in addition to sighted users. If the publishers are successful with their lawsuit, more than a million of those books would be deleted from the Internet’s digital shelves forever.”

. . . .

“Contrary to the publishers’ accusations, the Internet Archive and the hundreds of libraries and archives that support it are not pirates or thieves. They are librarians, striving to serve their patrons online just as they have done for centuries in the brick-and-mortar world. Copyright law does not stand in the way of libraries’ right to lend, and patrons’ right to borrow, the books that libraries own.”

Link to the rest at Publishing Perspectives

How the U.S. and European Union pressured South Africa to delay copyright reform

From Politico:

When South African President Cyril Ramaphosa sent a copyright reform back to the parliament last week, he raised constitutional concerns as a reason to delay the bill.

But in the preceding months, the United States and the European Union — encouraged by the powerful cultural industry — had pressured him to postpone the legislation with threats of tariffs and withdrawing investment.

. . . .

While the U.S. tariff threats were out in the open, the European Commission’s campaign to hold up the legislation has been exposed in dozens of internal Commission documents, obtained by former MEP Julia Reda via access to document requests, and shared with POLITICO.

Documents include letters from Hollywood studios, record labels and publishers urging the EU’s executive branch to intervene with the South African government, as well as communications between the Commission’s directorates general and missives from the EU’s delegation to South Africa asking the government to delay the reform.

“That [kind of unilateral pressure] is not terribly surprising from the current U.S. administration. What is surprising is that the European Commission seems to have joined in,” said Andrew Rens, a copyright expert at Research ICT Africa, adding that “the U.S. has been absolutely explicit about their intentions. The European Commission has been a little more discreet.”

Ramaphosa’s decision not to go forward with the bill highlights the sway of the cultural industry, which has opposed the reform for fear it would set a standard for the rest of the African continent.

. . . .

“[Pressure from the cultural industry has] gone as far as mobilizing the U.S. and EU trade authorities, threatening repercussions against South Africa were the reform to receive presidential assent. Clearly … these threats have proven quite effective,” said the International Federation of Actors’ General Secretary Dominick Luquer, who expressed concerns about the delay of “a long-awaited and much-needed copyright reform.”

. . . .

The reform — made up of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill — introduced the notion of “fair use,” a general exception to copyright for research, teaching and caricature, among others.

The Commission was involved very early on and wrote to the government in 2015, 2017 and 2019 to raise concerns about fair use and compliance with international treaties. A Commission official said the EU’s executive body was not against the introduction of the fair use provision in third countries’ legislation but called for “a balanced approach and legal certainty.”

The concerns revolved around “clear delineation of the scope of exceptions, the application of exceptions to commercial uses and the issue of compensation for uses under exceptions,” the official added.

Championed by tech companies such as Google, fair use is usually opposed by rights holders because it allows others to use content they have created or own for free. Fair use exists in U.S. copyright law, although the reform’s critics argue the South African text is much broader. European copyright rules don’t include a fair use provision.

Other disputed provisions include additional remuneration rights for authors and performers, supported by some local creators but rejected by companies such as movie studios and record labels who argue they interfere with contractual freedom.

The Motion Picture Association (MPA), which represents Hollywood studios and Netflix, welcomed the president’s decision. “The MPA was part of a cross-creative sector group which included publishing, music and author societies (among others), which worked closely with local creators to voice concerns transparently across many engagements with the relevant authorities,” a spokesperson said, referring to an open letter sent to Ramaphosa in August 2019.

. . . .

“I don’t think [the president] had constitutional issues, I think he was scared by the pressure from the Americans,” said Christo de Klerk, who works for Blind SA and backs the reform because it includes a general copyright exception for people with disabilities. Blind SA, an NGO helping visually impaired people find jobs, filed a legal proceeding against Ramaphosa to force him to act upon the bills, which had been waiting on his desk for over 15 months.

Link to the rest at Politico

Google will start paying some publishers for news articles

From The Verge:

Google will pay for news content from select publishers as part of a new licensing program announced today. It says the content will form part of a “new news experience” coming later this year, launching first on its Google News and Discover services. In some cases, Google says it could offer free access to paywalled articles by paying content owners on the user’s behalf.

Google says it’s starting the program with publishers in Germany, Australia, and Brazil, but says that it’s got “more to come soon.” Publishing partners include Der Spiegel in Germany, and Schwartz Media in Australia, according to the Financial Times.

Google’s announcement comes after multiple countries have stepped up efforts to have the search giant compensate publishers for the news content it links to. Australia recently unveiled plans to force tech platforms to help pay for the free content they profit from. In April, France’s competition authority ordered Google to pay for content from French publishers.

. . . .

However, the FT notes that such schemes have been criticized for only including some publishers and for not paying enough. Some would reportedly prefer legal backing to such initiatives, rather than relying on the goodwill of large tech firms.

In comments published by Google, Spiegel Group managing director Stefan Ottlitz said its partnership with Google “will allow us to curate an experience that will bring our award-winning editorial voice into play, broaden our outreach and provide trusted news in a compelling way across Google products.” The FT notes that Google’s announcement did not disclose the financial terms of its deals.

Link to the rest at The Verge

Publishers File Copyright Infringement Suit Against Internet Archive

From Publishing Perspectives:

Today (June 1), four publisher-members of the Association of American Publishers—including three of the Big Five—have filed a copyright infringement lawsuit against the Internet Archive, in the US District Court for the Southern District of New York.

The suit asks the court to enjoin the archive’s scanning, public display, and distribution of entire literary works—which it offers to the public through what the association terms “global-facing businesses” branded the Open Library and National Emergency Library. These are found at both openlibrary.org and archive.org.

The Internet Archive, the association states in media messaging this morning, “has brazenly reproduced some 1.3 million bootleg scans of print books, including recent works, commercial fiction and non-fiction, thrillers, and children’s books.”

. . . .

In making the announcement of today’s court filing, Maria A. Pallante, president and CEO of the association, says, “Today’s complaint illustrates that the Internet Archive is conducting and promoting copyright infringement on a massive scale. In scanning and distributing literary works to which it has no legal or contractual rights, the archive deliberately misappropriates the intellectual and financial investments of authors and publishers and brazenly ignores the copyright law that Congress enacted.

“IA operates with profound disrespect for the value chain of copyright, in which authors, publishers, bookstores, platforms, educational institutions, and libraries work together for the benefit of society, whether during prosperity or a pandemic.”

. . . .

The American association has had quick support this morning from its counterpart organization in the UK market.

From London, Publishers Association CEO Stephen Lotinga says, “We stand fully in support of this action by the Association of American Publishers, which reflects the very significant concerns held by publishers and authors about this site.

“The Internet Archive purports to be a library but it is not and behind that guise it is facilitating the distribution of millions of pirated books without paying a penny to the authors and publishers who produce them.

“We are living in unprecedented times, and that’s why publishers have gone out of their way to make content accessible to those who need it, but there’s no excuse for anyone to use the current crisis to infringe copyright in this way.”

. . . .

“We offered to work with Internet Archive in 2017 to create a licensing system that would make the ‘Open Library’ compliant with copyright law, and that offer was rejected. The Internet Archives’ unwillingness to work with authors and publishers to make their program legal unfortunately made a lawsuit the only recourse.”

. . . .

“Despite the self-serving library branding of its operations,” the AAP’s staff writes, “the Internet Archive’s conduct bears little resemblance to the trusted role that thousands of American libraries play within their communities and as participants in the lawful copyright marketplace.

“The Internet Archive scans books from cover to cover, posts complete digital files to its Web site, and solicits users to access them free by signing up for Internet Archive accounts. The sheer scale of the Internet Archive’s infringement described in the complaint—and its stated objective to enlarge its illegal trove with abandon—appear to make it one of the largest known book pirate sites in the world.

“The Internet Archive publicly reports millions of dollars in revenue each year, including financial schemes that support its infringement design.

“In willfully ignoring the Copyright Act, the Internet Archive conflates the separate markets and business models made possible by the statute’s incentives and protections, robbing authors and publishers of their ability to control the manner and timing of communicating their works to the public. The Internet Archive not only conflates print books and ebooks, it [also] ignores the well-established channels in which publishers do business with bookstores, e-commerce platforms, and libraries, including for print and ebook lending.

“As detailed in the complaint, the Internet Archive makes no investment in creating the literary works it distributes and appears to give no thought to the impact of its efforts on the quality and vitality of the authorship that fuels the marketplace of ideas.”

Link to the rest at Publishing Perspectives

PG notes that, among its other activities, The Internet Archive hosts a Malware Museum, including code from which the Archive assures its users, it has removed “destructive routines”.

The Internet Archive also includes a Donation Page, which includes the following message:

We need your help to ensure that anyone curious enough to seek knowledge will be able to find it here, for free. We’re an independent, non-profit website that the entire world depends on.

PG is no friend of the large traditional publishers who have filed this suit and does not like many of the things they do.

However, in this matter, PG is not sympathetic with the Internet Archive’s actions with respect to books. The IA provides lots of other useful services, including scanning copies of public documents, including some patent applications, court pleadings, out-of-copyright materials, etc.

However, considering the world-wide reach of IA, it also provides materials, including entire books, that others can download from anywhere in the world, then, among other things, resell on a commercial basis with little fear of discovery by the original author or punishment.

To be clear, if the Internet Archive stopped accepting material protected by copyright tomorrow and removed all such material from its online collection, that would not mean that book piracy would immediately stop. There are other avenues diligent would-be book thieves could pursue, but it would certainly make their work harder and, likely, less-profitable.

Copyright Office Urges Congress To Curb Broadway Bootlegs

From Forbes:

Broadway bootlegs might soon get the boot.

Last week, the U.S. Copyright Office released a report urging federal legislators to change the law in an effort to slow the spread of pirated content like unlicensed recordings of Broadway shows on the Internet. Enforcing Section 512 of the Digital Millennium Copyright Act nowadays has “resulted in an increasing burden on rights-holders to adequately monitor and enforce their rights online, while providing enhanced protections for online service providers in circumstances beyond those originally anticipated by Congress,” stated its spokesperson.

Designed to foster the growth of online commerce in the early days of the Internet, the legislation protects online platforms from being held liable for copyright infringement when their users post copyrighted material without permission, as long as the online platforms meet certain requirements. In addition to having special policies in place, the companies must not receive a financial benefit directly from any pirated content, know about its presence or any red flags that it exists, or allow it to remain on their websites after its presence has been reported.

“As to the development of online services, it is reasonable to state that Section 512 has achieved this purpose,” stated Raza Panjwani, an attorney who worked for the Public Knowledge public interest group. “Online platforms ranging from YouTube, to Facebook, to Tumblr, to Twitter, to Wikipedia, to innumerable subject matter specific discussion forums, have arisen thanks to the legal certainties provided by Section 512,” he said.

However, a lot has changed since the law was introduced in 1998.

When Section 512 was written, the Internet had only recently expanded beyond the closed platform or “walled garden” websites like America Online and Prodigy. “There was no Facebook or YouTube or Twitter; the first MP3 player had just been launched, and Napster, which popularized peer-to-peer file-sharing, would not exist until the following year,” recalled the spokesperson for the Copyright Office.

. . . .

However, with the growth of the Internet, the distribution of Broadway bootlegs has exploded.

Instead of being distributed on dusty VHS tapes like in the 1990’s, bootleg recordings of Broadway shows are now streamed on popular video-sharing platforms like YouTube, stored on foreign file hosting services like Mega, and traded in online communities like LiveJournal. Hundreds of thousands of unlicensed files are floating around the Internet, and one poll found that over 97.9 percent of theatre enthusiasts under the age of 20 have seen a Broadway bootleg.

Many rights-holders believe that the procedures that Section 512 put in place are not effective in combating copyright infringement on the Internet.

“Copyright owners send millions of notifications, yet these collectively have had little impact toward reducing the volume of infringing material available through the numerous sites employing the safe harbors to shield their responsibility for the persistent presence of such material,” argued Allan Robert Adler, the general counsel for the Association of American Publishers trade group. When pirated content is finally removed from a website, it often pops up again somewhere else, requiring rights-holders to spend a ton of time and money monitoring websites and mailing take-down notices. Jeffrey Seller, the lead producer of Hamilton, had to hire someone full-time to search for bootleg recordings of the show, and an executive at the record label Warner Music Group estimated that “it would take at least 20-30 people, at a fully-loaded cost in excess of $2 million per year, and probably the use of an outside content monitoring contractor at additional expense, to meaningfully affect (but not entirely block) just WMG’s top 25 album releases on YouTube.”

. . . .

According to Section 512, in order for an online platform to be shielded from liability, it must have “adopted and reasonably implemented … a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.” The platforms must have plans for blocking repeat infringers to make sure that they do not continue to post pirated content on their websites.

However, federal judges interpreting the law have not made up their minds over what makes someone a “repeat infringer.” Some judges think that it refers to someone accused of committing copyright infringement, and some judges think that it refers to someone found in court to have committed copyright infringement.

The Copyright Office believes that Congress originally intended the phrase to refer to only someone accused of committing copyright infringement, and it now insists that legislators should update the statute to make the language more clear. Websites should not wait for a court to find the person who shares multiple Broadway bootlegs liable before closing his or her account and putting a stopper on the source of pirated content.

In addition, there has been some confusion over how much Internet platforms must know about the existence of Broadway bootlegs on their websites before they are required to remove them. Other than when the companies receive a take-down notice or actually know that there is copyright infringement, the statute demands them to act whenever they see red flags or are “aware of facts or circumstances from which infringing activity is apparent.”

Some courts have taken the position that red flags exist when Internet platforms are aware of facts that would make a specific instance of copyright infringement “objectively obvious to a reasonable person.” The facts must relate specifically to the pirated content, and general knowledge that most videos on a website contain pirated content would not be considered a red flag.

Link to the rest at Forbes

Similar Works

Following are excerpts from a website called Similar Works. As the website states, the purpose of this site is to help protect authors from plagiarism of their books.

Beginning of Excerpts:

Protect your book from plagiarism

Similar Works is a web application built to protect authors from having their work exploited and their stories taken from them.

Upload your book to Similar Works and we’ll scan the text against other titles and keep monitoring — and alert you when we find any matches.

. . . .

How It Works

The Similar Works system analyzes ebook files and identifies matching text.

Books are submitted by authors and publishers who wish to protect their copyright, or concerned readers who believe they have found a work containing plagiarized material.

Similar Works reviews all books manually before accepting them into the archive.

Once a book is accepted, the system checks that book against all other titles already added.

If we find text matches that look suspicious, we contact the author or publisher and provide information so that they can take further action to protect their copyright.

We continue to check every time a new book is added to the archive.

Our Book List shows titles that have already been added, as well as a summary of similarities that have been detected called the Similarity Band.

. . . .

The Similarity Band

The Similarity Band is a visual representation of the similarities that our system finds in books.

Each Band is a generated watermark which represents the book’s text, from beginning to end, going from left to right. This is the text as it appears inside the digital file which is uploaded into the Similar Works archive, so it includes things like the copyright notice, the table of contents, disclaimers, back matter, and samples of other books.

When every book is run through the master algorithm, the text is split into logical chunks, usually consisting of no more than a sentence or two. The Band is generated by lining up all the chunks in order, and then recording a color depending on whether a similarity has been detected within that chunk or not.

. . . .

The Band can tell you a lot about how books are related to each other! For example, if a book has a lot of stripes on the far right side of the Band, then there are similarities detected near the end of the text. That probably indicates that the same back matter or samples appear in another book. Stripes on the left indicate similarities detected near the start of the text, and they are probably disclaimers or generic copyright notices.

(We do our best to filter out disclaimers and other generic language used by a lot of authors, so hopefully you won’t see too many of those.)

Unfortunately, the algorithm can only identify similarities. It can’t tell us why the similarity exists.

Common Phrases or Quotations

If you see only one or two stripes, then those are likely common phrases. The sensitivity of the master algorithm is carefully tuned to try to avoid this, but it’s not always successful. These can also be quotations.

Similarity Band for The Best of Relations

Here’s an example of a Similarity Band for The Best of Relations, by Catherine Bilson. You can see that there is a single white stripe indicating a similarity about two-thirds of the way through the book. That similarity was identified as coming from none other than Pride and Prejudice, by Jane Austen – which is not unusual, as The Best of Relations is based on Pride and Prejudice! In this case, it’s a famous line from Jane Austen’s classic that Catherine Bilson added to her novel.

I was given good principles, but left to follow them in pride and conceit.

The Best of Relations/Pride and Prejudice

What Does Plagiarism Look Like?

Royal Love, by Cristiane Serruya

This is the Similarity Band for Royal Love, a romance novel by Cristiane Serruya. Royal Love is currently part of an ongoing court case filed by famed romance author Nora Roberts against Cristiane Serruya in April 2019, accusing her of plagiarizing lines from as many as forty other romance authors.

The Similar Works system has identified many similarities in Royal Love, spread throughout the book.

In addition to potentially being a great help to authors, PG thinks this is a fascinating field of analysis.

Here’s a link to Similar Works

Pamela DuMond v. Diversion Publishing Corporation, Farrah Reilly, Simon & Schuster, Inc., Emma Chase, LLC, Emma Chase and Simon and Schuster, Inc., Case Number: 2:2019cv08922, US District Court for the Central District of California

Note:

Some visitors to TPV have reported difficulties in seeing the embedded PDF documents in this post. PG first observed this problem this morning – Thursday, May 21 – (everything seemed to work as planned for PG yesterday) and managed to get the embedded PDFs to show up after refreshing the screen a couple of times. You may want to try holding down your Shift key when you refresh the screen.

As you can see below, PG has provided an alternate way for you to view the documents if the embeds don’t work/haven’t worked for you. PG apologizes for any aggravation this issue has caused.

Beginning Original Blog Post:

As observant visitors to The Passive Voice have noticed, PG included a post titled Plagiarism 2020 yesterday. Today, we’ll talk a bit more about plagiarism, focusing on filings in an interesting lawsuit pending in the US District Court in the Central District of California.

Here are the principal pleadings to date.

NOTE: If you have difficulty viewing any of these PDF documents in this post, following is a link to a shared Dropbox folder that contains all the documents, numbered in the order in which they were filed with the Court (You don’t need a Dropbox account to access this folder) https://www.dropbox.com/sh/562g9gujbnkapzc/AAAH0VLzlOXC8KS3znDq9kxya?dl=0

First-Amended-Complaint

Motion-to-Dismiss

filed_Opposition_MTD

Reply-Supporting-Defendants-Motion-to-Dismiss

PG will provide a bit of explanation and commentary. (You can page through each document by moving your cursor over any page, which will reveal up and down arrows plus a zoom feature.)

If you are easily bored and want to see the most interesting document PG found during his exploration of the Court’s files (which are public records), you can scroll way, way down to the end of this post to view Exhibit C to one of the documents you will read about if you don’t immediately jump to the end.

Exhibit C appears to be the result (perhaps only part of the results) of a computerized analysis comparing the entire text of each of the two books at issue in this case to determine the ways in which they are similar to one another – the core question in a copyright infringement case that does not involve actual copying of all or a substantial portion of a copyright-protected work.

If this type of analysis proves useful and is accepted by courts, the subjective opinions of various “experts” who compare each of the texts by reading them and creating conclusory lists or summaries of similarities or differences may be replaced by something that is more objective and can provide a basis for a more accurate and predictable standard for where the line is between “inspired by” and “copied from” lies.

The Complaint

The Complaint is filed on behalf of Pamela DuMond, an individual author.

The Complaint names four different defendants:

  • Farrah Reilly a/k/a Emma Chase (for those visitors to TPV from outside of the United States, AKA stands for “Also Known As”. PG assumes Farrah Reilly is a pen name under which Ms. Chase writes.)
  • Emma Chase LLC – It appears that Ms. Chase may operate a limited liability company which may or may not have rights to her book and/or receive proceeds from her book.
  • Diversion Publishing Corporation d/b/a (Doing Business As) Everafter Romance
  • Simon & Schuster, Inc. (a very large American publisher)

Per a later paragraph in the Complaint, Diversion Publishing published a print version of Ms. Reilly’s book and Simon & Schuster published an audio version of the book.

The Complaint is fairly self-explanatory and what PG would expect to see in a case like this.

Rule 8 of The Federal Rules of Civil Procedure describes what a complaint must contain

(a) Claim for Relief. A pleading that states a claim for relief must contain:

  • (1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
  • (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
  • (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

PG also notes that the Summons (a court notice to Defendants that they have been sued) was issued in late October, 2019. In November, 2019, two attorneys entered an appearance on behalf of all the defendants except Simon & Schuster.

In January, 2020, these two attorneys withdrew and were replaced by the S&S attorneys, so all the defendants are currently represented by the same attorneys, originally hired by S&S.

The Motion to Dismiss

The second document is a Motion to Dismiss filed by the Defendants.

A few things caught PG’s immediate attention.

  • The names of three attorneys appeared on the motion, all from the same firm
  • One attorney was from the California office of the firm – the defendants needed an attorney admitted to practice in California to file the response and provide ongoing information about California civil procedure, etc.
  • Two attorneys are from the New York office of the firm and were permitted to participate in a California court case pro haec vice – for this case only.
  • The defendants’ law firm is one of the 100 largest in the United States, with offices in New York, Anchorage, Bellevue (suburban Seattle), Los Angeles, New York, Portland, San Francisco, Seattle (in addition to the office in Bellevue) and Washington DC.
  • PG concludes that Simon & Schuster is completely running the case via the attorneys they originally hired and who, thereafter, in January, 2020, undertook to represent the rest of the defendants..
  • A large firm like the one representing the defendants would almost certainly have competent IP litigation attorneys in California, likely in both the LA and San Francisco offices. However, they’re using two New York attorneys, Elizabeth A. McNamara, a full partner with more than 30 years of experience, with lots of litigation, in IP and media matters, and Kathleen Farley, an associate focusing on media in addition to an LA IP associate. PG suspects a 20-minute court hearing in California would generate a significant number of billable hours sitting on an airplane for the New York lawyers.

The Motion to Dismiss is a 28-page document. PG doesn’t know what the current large-firm New York City rule-of-thumb per-page cost for a serious litigation document is, but PG suspects we’re looking at a serious five-figure fee just for drafting this document. If the court sets oral arguments on the motion, PG suspects an additional five figures will be spent by Defendants if the New York lawyers show up.

The biggest question on PG’s mind is, “Why is Simon & Schuster spending so much money defending this case?”

PG doesn’t know how many audiobooks S&S sold before the Summons arrived, but the dollars it has received and would generate if the audiobook continued to be sold would seem to be much less than the costs of defense. PG has no inside knowledge about settlement discussions, if any, but PG bets that S&S could get a release from Pamela DuMond, the author/plaintiff for less than it’s spending on its New York and California lawyers.

However, the fact that S&S offered to have its lawyers represent the rest of the defendants as well is an indication for PG that S&S wanted to control the defense of the case and is likely in the battle for the long haul.

Back to the merits of the Motion to Dismiss.

As PG mentioned much earlier, under the Federal Rules of Civil Procedure, a Plaintiff need only provide a “a short and plain statement of the claim showing that the pleader is entitled to relief;

After reading the Complaint, PG thinks it’s pretty clear what Ms. DuMond thinks the Defendants did wrong. If the Defendants are seriously confused, the process of discovery – depositions, interrogatories, etc., etc., – will offer plenty of opportunity for Defendants to clear up any questions they may have.

The Defendants argue that the Complaint only mentions a few examples of plagiarism/copyright violations. PG thinks these are clearly identified as just some of the similarities, not all of them.

One thing the Motion to Dismiss does demonstrate is that S&S is going to attempt to make litigation expensive for the Plaintiff.

Plaintiff’s Opposition to Defendants’ Motion to Dismiss

For PG, this is where things became more interesting.

The copying and copyright infringement of the Defendants was
most likely the result of digital text spinning followed by a re-write and polish. Text
spinning — also called automatic paraphrasing — is performed by computer software
containing a built-in thesaurus.

While digital text spinning results in the alteration of the original work, it also results in nonsensical phrases, awkwardly constructed sentences, patterns, repetitions, and other anomalies — all of which exist in the Defendants’ Copy. What else could explain why the very unique word “Rome” occurs at exactly 67% of the way through the digital version of the Work and at exactly 65% of the way through the digital version of the Copy; and the very unique word “Beyoncé” occurs at exactly 95% of the way through the digital version of the Work and at exactly 95% of the way through the digital version of the Copy. Defendants will argue that the exact same word placement is a remarkable coincidence or that the word is not a form of protected expression.

As detailed below, the digital versions of the Work and the Copy show similarities
that are so striking as to preclude the possibility that Ms. DuMond and Defendant
independently arrived at the same result. The Appendix is replete with similarities that
are similarly placed in the Work and the Copy. This Court should employ a digital
analysis of the Work and the Copy, rather than the antiquated paper analysis urged by the Defendants.

But the Work and the Copy share more than striking similarities in names, stock characters, or trope – they share hundreds of copyrighted elements including written dialogue, written plot points,written character traits, and written scenes, to name a few.

Element WorkCopy
HeroPrince Nicholas Frederick Timmel  Prince Nicholas Arthur Frederick
Heroine / VillainessHeroine: Lucy “Lucille” TrabbicioVillainess: Lucy “Lucille” Deringer
Nicknames “Lizzie” “Livvy”
Good FriendTo Heroine, Lady EsmeraldaTo Hero, Lady Esmerelda
Royal GuardTomas Tommy 
Handsome ManChristophChristopher
Name of BarThe MadDog BarThe Horny Goat Pub
Penthouse CharacterOwner: David BillingsleyButler: David
Pie ReferenceMarie Callender’sMarie Callender’s
Famous ReferencesKardashian, Beyoncé, Brad Pitt, James BondKardashian, Beyoncé, Brad Pitt, James Bond
Words on one pagepenthouse, hand-painted, crystal, marble floorpenthouse, hand-painted, crystal, marble floors
Chapter 3 PassagePies, shop, open, chocolate, berries, counterPies, shops, opens, chocolate, berry, counter
Linda Blair Reference“swiveled his head toward me like Linda Blair”“Linda Blair Exorcist-head-spinning”

Computer Analysis of Similarities of the Two Works

If you’ve made it this far, PG congratulates you and suggests you may wish to apply to law school.

The following document is the one that interested PG the most. It is attached to the Plaintiff’s Opposition to the Defendant’s Motion to Dismiss as Exhibit C and appears to be one of the products of a computer analysis of the two works – Ms. DuMond’s original book and the one she claims violates her copyrights – to determine how similar the two works are.

As with earlier embedded PDF files, if you can’t see this one in your browser, you can access it at the shared Dropbox folder – https://www.dropbox.com/sh/562g9gujbnkapzc/AAAH0VLzlOXC8KS3znDq9kxya?dl=0

Exhibit-C

Canadian Publishers on Court Setback

From Publishing Perspectives:

After an ominously long pause in news around Canada’s bitterly contested Copyright Modernization Act of 2012, the Association of Canadian Publishers (ACP) has issued a statement of “frustration and disappointment” over an appellate court’s decision.

. . . .

fter an ominously long pause in news around Canada’s bitterly contested Copyright Modernization Act of 2012, the Association of Canadian Publishers (ACP)  has issued a statement of “frustration and disappointment” over an appellate court’s decision.

. . . .

In its simplest terms, the new April 22 decision—relative to an original ruling that favored the publishers in the summer of 2017—says that the educational community has acted wrongly but that schools and universities are not required to pay the licensing fees certified by the copyright board.

This new decision, as described in media messaging from the association’s executive director Kate Edwards, asserts that while the “fair dealing” guidelines used by the Canadian education sector “do not meet the Supreme Court’s test for fair dealing, it did not uphold the decision that tariffs certified by the copyright board are mandatory.

“In essence,” Edwards says, “the decision reaffirms that the Canadian education sector has engaged in illegal and unfair copying on a systematic basis—and makes the prospect of enforcement for small- and medium-sized publishers impossible.”

. . . .

Announcing that the publishers association is “frustrated and disappointed” by this turn of events, the organization now flatly calls the Canadian market’s copyright framework “broken,” writing, “Amendments made to the copyright act in 2012 opened the door to illegal and systematic copying by the K-12 and post-secondary education sector, which has now accrued cumulative liabilities of more than $150 million (US$105.2 million).

“At the same time, amendments have limited statutory damages for non-commercial use to a point that enforcement is impractical. Urgent action on the part of the federal government is needed to implement reforms that will correct market damage and provide a policy framework that supports future investment in Canadian writing and publishing.”

. . . .

Briefly, the disputes around the Copyright Modernization Act have to do with the scope of “fair dealing” (also called “fair use”) in educational settings in Canada.

Since the implementation of the 2012 act in 2013, universities in the English-language Canadian market have worked along the lines of a “10 percent” approach, which other educational institutions, including K-12 schools, have then adopted. In some university settings, instructors have copied up to 10 percent of a book, or a full chapter, and to then distributed this copied material to students without a publisher’s permission and without paying a licensing fee, sometimes called a tariff.

At the height of what turned into a furious standoff between educational entities and the publishers, all the school boards in Ontario and the ministries of education for all Canadian provinces except British Columbia and Québec filed a lawsuit in February 2018 against the government’s copyright collection agency, Access Copyright.

And what the Association of Canadian Publishers—which represents the Canadian-owned English-language houses—had seen as its greatest victory was a July 12, 2017, ruling in Access Copyright v. York University from the federal court of Justice Michael L. Phelan, who wrote in his decision that the Modernization Act’s guidelines as interpreted by York University were unfair and that tariffs (those licensing fees) certified by the country’s copyright board are enforceable.

Our full write on the court’s 2017 is here. To refresh you quickly, Justice Phelan wrote, in part, “The fact that the guidelines could allow for copying of up to 100 percent of the work of a particular author, so long as the copying was divided up between courses, indicates that the guidelines are arbitrary and are not soundly based in principle.

“York has not satisfied the fairness aspect of the quantitative amount of the dealing,” Phelan writes in his decision. “There is no explanation why 10 percent or a single article or any other limitation is fair. Qualitatively, the parts copied can be the core of an author’s work, even to the extent of 100 percent of the work.”

And Phelan struck down the concept that York and other educational venues had cited, that of being able to “opt out” of paying licensing fees if they wanted to, fees which normally are covered by a several dollars per student per academic term. To accept that educational institutions could simply decide not to participate in the collection of funds federally mandated in the creation of Access Copyright would, the court wrote, certainly lead to economic damage to publishing.

Link to the rest at Publishing Perspectives

States Are Immune from Copyright Suits

From The Authors Guild:

On Monday, March 23, the U.S. Supreme Court held that states are immune from copyright liability. This is troubling because it means that state universities and libraries can abuse copyright as much as they want without liability to publishers or authors. The Court’s decision in Allen v. Cooper invalidated a 1990 amendment to the Copyright Act which had allowed copyright holders to sue states for copyright infringement.

In Allen v. Cooper, plaintiff Allen and his production company were photographers with exclusive rights to document the exploration of the pirate Blackbeard’s shipwrecked vessel, but the state of North Carolina used Allen’s photographs and videos without his consent. Although the parties entered into a settlement agreement requiring the state to compensate Allen, Allen found out that the state had continued to use the copyrighted works after the date of the settlement agreement. The Supreme Court dubbed the alleged copyright infringement “a modern form of piracy.”

. . . .

While it found that states are immune (again) from copyright infringement actions, the Supreme Court nevertheless left a legislative door open: “That conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future.” The Court recognized the need to protect the interests of copyright holders—even from the states—saying “That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.”

Link to the rest at The Authors Guild

Video game makers free to use NBA stars’ tattoos

From World Intellectual Property Review:

Depicting sports stars’ tattoos in video games does not infringe copyright owned by the tattoo artist or their licensee, a US federal court has ruled.

In the first written judgment on tattoo copyright in the US, the US District Court for the Southern District of New York yesterday, March 26, ruled that video game developer and publisher Take-Two Interactive was free to reproduce the designs featured in the real-life tattoos of basketball players like LeBron James in its “NBA 2K” series.

Take-Two, and its subsidiary 2K, had been facing copyright infringement claims brought by Solid Oak Sketches, a tattoo licensing firm which purchased the copyright for James’ tattoos, as well as other basketball players Eric Bledsoe and Kenyon Martin.

. . . .

According to the court, when artists tattoo someone, they grant an implied, nonexclusive licence to their work where it can be reasonably expected to become part of a person’s likeness.

In the case of the basketball players, the artists would have known that they were well-known figures and likely to appear in public, on TV, and in the media.

“Defendants’ right to use the tattoos in depicting the players derives from these implied licenses, which predate the licenses that plaintiff obtained from the tattooists,” judge Laura Swain wrote.

. . . .

Irrespective of the implied licence, the reproduction of the tattoos in the “NBA 2K” games qualified as de minimis use, and did not require the consent of any copyright owner, the court concluded.

Judge Swain wrote that “no reasonable trier of fact could find the tattoos as they appear in ‘NBA 2K’ to be substantially similar to the tattoo designs licensed to Solid Oak,” as they cannot be identified or observed during gameplay.

The court found that the tattoos appear only fleetingly and are obscured by the rapid motions of the in-game players. 

Link to the rest at World Intellectual Property Review

Katy Perry Wins Reversal of ‘Dark Horse’ Copyright Verdict

From Variety:

A federal judge has handed a big win to Katy Perry, overturning a copyright infringement verdict regarding her hit song “Dark Horse.”

Judge Christina A. Snyder issued a ruling on Tuesday vacating the jury’s verdict, finding that the short musical phrase at issue is not original enough to warrant copyright protection.

The jury had found last July that “Dark Horse” included an eight-note ostinato that was stolen from “Joyful Noise,” a song by the Christian rapper Flame. The jury awarded $2.8 million in damages.

Snyder found that the jury’s verdict was not supported by the weight of the evidence in the case.

“It is undisputed in this case,” Snyder wrote, “that the signature elements of the 8-note ostinato in ‘Joyful Noise’… is not a particularly unique or rare combination.”

Snyder drew on the testimony of the plaintiff’s expert witness, musicologist Todd Decker, in coming to her conclusion that the jury got it wrong.

“A relatively common 8-note combination of unprotected elements that happens to be played in a timbre common to a particular genre of music cannot be so original as to warrant copyright protection,” she wrote.

. . . .

The decision is the second piece of good news in as many weeks for music labels and major acts, which have felt besieged by frivolous copyright litigation over the last few years. Last Monday, the 9th Circuit Court of Appeals upheld a jury verdict finding that Led Zeppelin’s “Stairway to Heaven” did not infringe on an earlier song by the band Spirit.

Link to the rest at Variety

Here’s an earlier video, created prior to yesterday’s reversal of the jury verdict as described in the OP.

Taylor Swift Shakes Off ‘Playas’ Infringement Claim

From The Biederman Blog:

It may be true, as some songs have averred, that playas gon play, and haters, they gonna hate.

But federal district judges, well, they rule.

And, when asked to decide matters with elements that they may deem legally triflin’, their honors sometimes can just zing parties before them.

That was the case with U.S. District Judge Michael W. Fitzgerald in Los Angeles, as he took up a copyright infringement suit filed by the songwriters of 3LW’s 2001 piece, Playas Gon’ Play.

They asserted that pop diva Taylor Swift  violated their copyright  for Playas with her hit Shake It Off  (to hear it, click on image above), which became a Billboard No. 1 hit in 2014 and stayed on the charts for 50 weeks. In contrast, Playas  “peaked at No. 81 on Billboard’s Hot 100 chart. . . [with] more than 1,000,000 units were sold.”

The judge zeroed in on plaintiff’s claims about infringing lyrics, 3LW having sung: “Playas, they gonna play / And haters, they gonna hate.” Swift, on the other hand, crooned, “Cause the players gonna play, play, play, play, play and the haters gonna hate, hate, hate, hate, hate.”

Fitzgerald, in a rebuke that cuts multiple ways at the creativity of the works before him, found that:

In sum, the lyrics at issue – the only thing that Plaintiffs allege Defendants copied – are too brief, unoriginal, and un-creative to warrant protection under the Copyright Act.

He granted the motion by Swift and other named defendants, tentatively, to dismiss the case, in what might be deemed an artistic Pyrrhic victory. 

Link to the rest at The Biederman Blog

Legal Decision Just Upheld a $6.75 Million Victory for the Street Artists Whose Works Were Destroyed at the 5Pointz Graffiti Mecca

From Artnet News:

In a sweeping 32-page decision eviscerating the legal arguments of a disgruntled Queens real estate developer, a US Appeals Court affirmed the rights and monetary damages awarded to a group of graffiti artists whose works were destroyed without warning or consent in 2013.

The artists sued the developer, Gerald Wolkoff, in 2013 for violating their rights after he whitewashed their work at the famous 5Pointz graffiti art mecca in New York to make way for condos. A jury ruled in favor of the artists in November 2017, but it was up to a judge to determine the extent of the damages.

In February 2018, Brooklyn Supreme Court judge Frederick Block awarded the artists a total $6.75 million in a landmark decision. The sum included $150,000—the maximum legal penalty—for each of the 45 destroyed works at the center of the case.

The trial was a key test of the Visual Artists Rights Act (VARA), which grants visual artists certain “moral rights” for their work. Previous VARA cases rarely made it to trial, and were instead settled privately.

But the act, which was added to copyright laws in 1990, disallows the modification of works in ways that could be considered harmful to artists’ reputations, and grants protections to artworks deemed to be of “recognized stature.”

Link to the rest at Artnet News

Photos of the art prior to destruction are at the OP.

Copyright and Collective Authorship: Locating the Authors of Collaborative Works

From IPKat:

[Author Dr. Daniela] Simone assesses how UK law defines shared authorship and how authorship is then allocated among creative collaborators. The book confirms copyright’s reputation as a legal framework ill-suited for collaborative creative processes, arguing that it prefers single authorship (and ownership). As a result, rights tend to be concentrated in singular, rather than, multiple, hands.
Simone explains the ‘why’ for copyright’s bias for single authorship and where such bias might come from. Simone then challenges this bias by offering an alternative read on copyright and collective authorship.
The book opens with a description of sole versus joint-authorship under UK law (Chapter 2). Simone’s analysis of case law on joint authorship sheds light on the oddities and incoherencies of the doctrine.

. . . .

(1) Joint-authors are held to a higher standard. In comparing the tests of single authorship with that of joint-authorship, Simone reveals that UK courts hold parties to a higher standard when they seek ‘joint-authorship’, because they must demonstrate a more ‘significant’ or ‘substantial’ contribution to the work. This difference in threshold has no statutory basis, as the Copyright, Designs and Patents Act 1988 (CDPA) is neutral on this question (as was the text of the previous statutory formulations, e.g. here).
(2) The test for joint-authorship is built upon a small number of highly fact-sensitive cases. There is scant precedent on joint-authorship to turn to for guidance. The few case law authorities that we do have are difficult to apply because each case involves different types of creative work, creative processes and collaboration patterns.
(3) The joint-authorship doctrine is ‘polluted’ by concerns about shared ownership. Judicial discussion on the attribution of joint authorship often address whether it would be practical for the ownership of the work to be shared between multiple parties. This approach, Simone argues, conflates two different concepts of copyright (authorship and ownership), which copyright law takes such care to distinguish.
(4) The test for joint-authorship breaches the principle of aesthetic neutrality. It is a well-established principle of copyright law that copyright should apply regardless of the work’s aesthetics, artistic quality or genre. Judges keeping to this principle in the context of joint-authorship claims have complicated this jurisprudence. This principle has courts avoiding language that might refer to the aesthetics, genre or quality of the work. This is especially true when judges assess the evidence submitted by the parties on the creative process and their relative contribution to the work. But courts end up producing open-ended, vague, abstract, and inconsistent language by being overly cautious on this point. 

. . . .

Simone’s chief recommendation is to close this gap between the law and social norms on authorship and credits so that collective authorship enjoys its proper place within the framework of copyright. The author proposes to do so by importing into copyright law some of the more nuanced field-specific practices according to which collaborators negotiate authorship. Simone suggests that this should bring copyright into line with the expectations of creators on authorship and credits.

. . . .

These conclusions come after road-testing the joint-authorship doctrine on three types of collective authorship: Wikipedia entries (Chapter 4), Australian Indigenous Art (Chapter 5) and films (Chapter 6). The use of these three case studies in this way keeps Simone’s critique of the joint authorship doctrine rooted in concrete examples. 

Link to the rest at IPKat

PG suggests that a takeaway for authors is that, if you are writing a book with a co-author, you should have a signed contract that, among other things, specifies how authorship will be handled for copyright and book credit purposes.

As with a great many things legal, problems rear their ugly heads in this area of human relationships when money (often, but not always, significant amounts of money) is involved. On occasion, pride works almost as well as money.

DMCA Review Begins. Watch the Red Flag.

Note from PG: The reason that the following item and the congressional hearings it describes is important for indie authors is that §512 impacts the least-expensive way of dealing with online piracy of an author’s work – DMCA Takedown Notices (go here and here for an overview if you don’t know what those are).

From The Illusion of More:

Early last week, the Senate Judiciary Committee held the first in what will be a year-long series of hearings (roughly one per month) to review the Digital Millennium Copyright Act.  Almost as old as the publicly-available internet itself, the 1998 DMCA expressed the best efforts of Congress to predict how the digital market might evolve and to, therefore, strike a balance between the interests of internet service providers (ISPs) and copyright owners.

Over the intervening twenty-two years, much—MUCH—has been written, debated, shouted, flung wailed, opined, and scorned about the DMCA, specifically Titles I and II of the five-title statute.  If we ask the tech-centric/copyright-skeptics, they are likely to say that Title I (§1201) is a disaster and that Title II (§512) is working just fine; while the creator/copyright proponent will tell us exactly the opposite.

. . . .

What I will reiterate in this post is that the greatest concern to creators of every size is the conditional liability shield (“safe harbor”) provided to web platforms by §512.  It is the foundation of the oft-described “whack-a-mole” problem whereby the independent author attempts to remove infringing uses of her works one-by-one, only to have them reappear on the same platform(s) faster than she can prepare new notices.  (And “whack-a-mole” can be just as big a problem for a small business like an apparel maker as it is for a traditional artist like a musician.)  

In response to this futile battle with online infringement, authors often give up enforcement via the DMCA takedown process (resigned to donating even more revenue to billion-dollar corporations) while they ask as a community why the major platforms in particular cannot do a better job of preventing protected works from being chronically re-uploaded without license.

. . . .

What is “Red Flag” Knowledge?

Unfortunately, you will get different answers depending on whom you ask, including a court split on the matter if you ask either the Second or the Ninth Circuit Court of Appeals.  But in everyday life, “red flag” knowledge is a reasonable, common-sense inference that one can draw from a modest amount of empirical evidence and experience.  If you enter the house to find trash strewn across the floor and a chagrined puppy in the corner, you will not need training in forensic science to have “red flag” knowledge that either the dog has committed a misdemeanor, or he has been artfully framed by the cat.  

That roughly describes the degree of analysis Congress intended ISPs to perform when encountering evidence of copyright infringement on their platforms.  As Professor Aistars noted, “Although Congress did not obligate service providers to actively seek out infringements, it did require them to act expeditiously to remove infringing materials once they have knowledge or awareness of infringing activity on their networks.”

. . . .

For example, let us imagine that the users of a web platform we’ll call Vimeo are making videos using some famous music we’ll call Beatles songs.  Any ordinary observer can reasonably assume that these users probably did not license these sound recordings; yet in the case Capitol Records v. Vimeo, the Second Circuit held, on the issue of “red flag” knowledge, that the platform’s operators would have needed either legal or music-industry expertise in order to discover infringement.

Keeping in mind that voluntary removal of material based on “red flag” knowledge of infringement is a condition of an ISP’s “safe harbor,” decisions like Vimeo do more than erase this part of the statute—they exacerbate a culture of infringement through court-sanctioned willful blindness.  And as Aistars added in her testimony, “Pointedly, this occurred in a case where discovery had revealed emails from managers to employees winkingly encouraging infringement.”  Thus, Aistars is among those who would advocate clarifying the meaning of “red flag” to restore the intent of §512.

The Vimeo emails Aistars mentions are typical of the shoulder shrugs and middle fingers creators are used to receiving from many platform operators, and application of the DMCA to date has unquestionably fostered cultural attitudes anathema to the kind of cooperation between ISPs and rightsholders Congress specifically intended to promote two decades ago.  Further, unintended endorsement of this culture among site operators may be exacerbating a persistent misunderstanding among individual and commercial users that the internet is a realm of automatic immunity.

. . . .

Anticipating the likelihood that, if there is to be any revision to §512 at all, “red flag” will be a major point of debate, Professor Tushnet warned against what she and others see as throwing out the proverbial baby with the bathwater.  “If there is one message I would ask the members of the Committee to take away today,” she stated in her opening testimony, “it is that most beneficiaries of §512 are not Google or Facebook.”  Tushnet cautions that if we were to amend §512 solely as a response to the challenges creators face on very large, commercial platforms like YouTube, we risk simultaneously putting compliant, smaller platforms out of operation and facilitating even greater monopolization by the largest entities.

As a statistical matter, Tushnet is making a “few bad apples” argument, except for the fact that some of the baddest apples in the bunch happen to be the most powerful, wealthiest internet companies in the world.  So, even if we take her premise and data at face value (i.e. that millions of compliant sites rely on §512 to exist), this does not recommend ignoring the catalog of evidence that application of the DMCA has promoted willful blindness among the operators of major ISPs.  Simply put, if twenty-million sites operate without harm while one site does harm to twenty-million creators, we still have a problem if the law shields that one site from liability.  So, the status quo cannot be the final answer.  

As a practical consideration, Tushnet’s argument is based on the assumption that a more clearly defined restoration of the intent of “red flag” knowledge can only be implemented by technological measures, which only the largest ISPs can afford.  

. . . .

As Tushnet testified, her own Organization for Transformative Works site hosts over “four-million works” yielding 1.2 billion page views per month, while the site receives takedown notices at a rate of less than one per month, most of which are invalid.  Assuming these data are correct, the site to which she refers seems barely relevant as an example. It is a large fanfic platform with what appears to be a vast amount of material—mainly short works of written text—that is highly unlikely to infringe.  No sound recordings.  No photographs.  No film clips.  At most, some fanfic writer could maybe—and I mean maybe—run afoul of a derivative works right. 

From a cursory review of OTW, it is not at all evident that adopting a clearer, statutory definition of “red flag” (in order to hold the majors accountable) would force a site like this one to invest in prohibitively expensive technology in order to remain complaint.  If the platform is indeed receiving takedown notices at a rate of less than one valid notice per month, this is most likely evidence that the site hosts little to no infringing material—and that when notices are received, human review is sufficient to the task.  Further, the fact that the site hosts “fandoms” for a long list of works owned by major motion picture studios indicates that infringement must be very low to near zero if it has not invited the attention of an industry with the resources to send notices in volume.  

Link to the rest at The Illusion of More

Then And Now

From Kristine Kathryn Rusch

Recently, Dean told me about a conversation he was having on Facebook with a group of writers who, in the 1990s, shared the table of contents in an anthology featuring stories about the X-Men. Apparently, that anthology has just gotten an audio edition, and one of the authors in the anthology was thrilled about that.

Then Dean threw some cold water on the excitement. Who’s getting the royalties? he asked. No one knew.

Yes, the project was work for hire, but the writers weren’t paid a flat fee. They were paid an advance against royalties, for all forms of the book.

Dean hadn’t heard about the audio edition ahead of time. Nor had the other authors. I’m pretty sure the writer who announced it just stumbled on it. And once Dean asked the question, the others began wondering as well.

This project—twenty years old—has a somewhat tortured history. It was packaged by a packager so notorious that when he died unexpectedly, the people who had worked with him weren’t upset about his death at all. In fact, when a certain sf convention tried to hold a memorial for him, they couldn’t get anyone to speak at it.

This packager had lied and cheated and abused his writers so badly that they had nothing kind to say about him, even if they were the type of people who would have been inclined to make nice after a death. He stole and embezzled and sold his companies—to himself, sometimes—and managed to always come out smelling…okay, I guess.

When he died, his financial affairs were such a tangled mess that I heard about the troubles the estate had untangling them. I’m not sure how that ended up.

But here’s the thing. X-men is part of Marvel which is part of Disney. Someone still believed they had the rights to that anthology, and could license it in audio. That audio money probably went straight into licensor’s pocket, not realizing that the authors had contracts that stipulated royalties and not a flat fee.

With the arrival of the audiobook came the realization that the book is still in print, which meant it’s still earning money. I’ll wager, although I haven’t checked, that it has an ebook edition (which it didn’t originally have). All of this means it’s been earning royalties steadily for twenty years, which, at least in our household, have not been paid in (ahem) twenty years.

Does that mean Dean and the other writers are owed millions? Naw. Probably not even thousands. Maybe a few hundred each maximum. But that’s nothing to sneeze at.

And therein lies a dilemma for writers. Do they pursue those few hundred dollars? Do they hire an attorney to figure out who actually is exercising the rights? Or do they just shrug and say, Them’s the breaks, and move on to other things.

. . . .

A few weeks before this debacle surfaced, I wrote a sticky note for my pile of possible blog topics. It says, succinctly:

Old system = make $$ for others. Pittance for you.

New system = make $$$$$$$ for you, and some for others.

I’ve been thinking about that in the connection with licensing for writers. If we maintain our own intellectual property, and if we publish the work ourselves, we own every part of that copyright. We license it to various companies which then make some money off the derivative product they produce.

Link to the rest at Kristine Kathryn Rusch

Over his long and varied business life, PG has been exposed to a wide variety of industries and companies large, medium and small operating in those industries.

PG has helped clients who had problems because they dealt with shady characters. As a general proposition, even when the client was able to win in court, even with a generous award of damages, the client was never made whole. The whole episode became a dark and disturbing period in the client’s life that was difficult to put behind her/him. In that respect, dealing with a bad business associate had some parallels with marrying the wrong person.

PG will state that, as a whole, traditional publishing is a weird business. There are some nice and sane people in the business, but there are some very strange and maladjusted people as well, not the kind of people one would expect to find in most well-managed business organizations.

As just one example, practically every other business on the planet pays its contractors on a monthly basis if not more often. PG cannot think of any other major business segment that pays its bills to outside materials/service providers every six months. Undoubtedly there are some, but they are the exception rather than the rule. Of course, Amazon manages to pay self-published authors every month. Ditto for paying Random House, etc. However, Random House, etc., is somehow unable to remit royalties to authors more often than every six months, even royalties for sales made on Amazon for which the publisher is paid monthly.

One of the reasons authors sometimes lose track of the non-payment of royalties is that payments appear at such widely-spaced intervals. If an author were paid royalties earned on a monthly basis, he/she would be more likely to note the omission of an expected payment.

PG was about to begin a rant about the problems caused for authors by unskilled and unschooled literary agents who are yet another intermediary between an author and the author’s royalty payments, but he’s running out of time.

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

The Backlash Over My Dark Vanessa

From Plagiarism Today:

Up until last week, My Dark Vanessa was one of the most highly-anticipated books of 2020. A novel by Kate Elizabeth Russell. It tells the story of a teenage girl who enters into a sexual relationship with her adult English teacher and how she is forced to deal with that past when she herself becomes an adult and another former student accuses him of sexual abuse.

Heralded by both the New York Times and The Guardian, the book isn’t even due out until March 10 but has been the subject of a mammoth press push and a reported 7-figure advance.

However, that excitement hit something of a speed bump on January 19 when author Wendy C. Ortiz took to Twitter to criticize the book, saying it was similar to her 2014 memoir entitled Excavation.

. . . .

Though this was the result of a brewing controversy among Ortiz’s fans, this brought the allegations to a new audience and prompted Ortiz not only to explain in greater detail but to follow up with an essay on Medium on January 29th.

In that essay, she said My Dark Vanessa was “eerily similar” to her book. The main difference was that Ortiz’s book was a memoir of her experiences when she was abused by a 28-year-old man when she was just 13 while Russell’s was listed as a work of fiction.

Russell, for her part, reached out to Ortiz after the initial Tweets. There, she admitted to having read Excavations as part of her research. However, this did not smooth things over with Ortiz, who posted on Twitter the next day.

. . . .

Russell has gone on to say that, though her book is a work of fiction, she has been working on it for nearly 20 years. In December 2018 she stated that it was moved from being a memoir to being fiction when she chose to make the teacher in her story a composite of the adult men that abused her.

However, the allegations of plagiarism are really only a small part of the story. Ortiz’s grievances deal less with the possibility that her story was coopted, but with the publishing industry itself.

. . . .

In Ortiz’s essay, she outlines the long path she walked to get her book published.

Despite initial interest from publishers and agents, she received repeated feedback from editors that it would not achieve the kind of “wide audience” success they were hoping for with a debut author. Others simply opined that memoirs were overdone, especially for new authors and writing about sexual abuse topics.

She ended up finding a home on a small press and, though the book did well on its initial run, she found no large publishers willing to take it up after it had proven itself.

This, understandably, made it sting all the more when she learned that Russell was becoming a press and media star with her very similar tale. While her book struggled to find a large audience despite a great deal of acclaim, Russell had praise and a significant advance before her book was even out.

For Ortiz, much of the difference could be attributed to race. Ortiz, a Latinx author, felt that at least some of the success of Russell’s work could be attributed to her being white and, thus, more acceptable to the publishing industry. As she said in her essay while discussing her editors’ notes, “‘Wide’ is likely code for white.”

This accusation is nothing new to the publishing industry, which has long been labeled as being “hideously middle-class and white” or simply not having diversity despite multiple attempts and efforts to become more inclusive.

. . . .

Though it is unlikely My Dark Vanessa was a plagiarism, it still raises difficult questions about the publishing industry. This is likely why Ortiz, when discussing the book, never uses the word “plagiarism” and, instead, focuses on the broader publishing industry issues.

. . . .

The question is: Why was Ortiz’s retelling so heavily rejected while Russell’s so quickly accepted and promoted? Race, ultimately, is just one factor in this story as there are undoubtedly countless other differences including the timing of the books, fiction vs. non-fiction and so forth.

Link to the rest at Plagiarism Today

PG suggests that media storms demonstrating the many shortcomings of traditional publishing pop up on a regular basis and everyone reliably condemns racism, sexism, classism, etc.

But publishing never changes.

PG suspects it doesn’t really want to change, but also accepts that publishing can’t change. It can’t hire the talented visionaries necessary to lead such a major change.

The other factor is that the major US trade publishers are far from independent organizations. HarperCollins, the publisher of My Dark Vanessa, is owned by Rupert Murdoch’s media conglomerate News Corp. If the executives at HC don’t make their numbers, their bosses at News Corp. will find others who will.

Striking a blow for diversity or another non-monetary good won’t save anyone’s job in Big Publishing if they don’t generate what the big boss expects in the way of cash.

EPO publishes grounds for its decision to refuse two patent applications naming a machine as inventor

From The European Patent Office:

The EPO has published its decision setting out the reasons for its recent refusal of two European patent applications in which an AI system was designated as the inventor. 

Filed by an individual in autumn 2018, the applications EP 18 275 163 and EP 18 275 174 were refused by the EPO following oral proceedings with the applicant in November 2019, on the grounds that they do not meet the legal requirement of the European Patent Convention (EPC) that an inventor designated in the application has to be a human being, and not a machine.

In both applications a machine called “DABUS”, which is described as “a type of connectionist artificial intelligence”, is named as the inventor. The applicant stated that he had acquired the right to the European patent from the inventor by being its successor in title, arguing that as the machine’s owner, he was assigned any intellectual property rights created by this machine.

In its decisions, the EPO considered that the interpretation of the legal framework of the European patent system leads to the conclusion that the inventor designated in a European patent must be a natural person. The Office further noted that the understanding of the term inventor as referring to a natural person appears to be an internationally applicable standard, and that various national courts have issued decisions to this effect. 

Moreover, the designation of an inventor is mandatory as it bears a series of legal consequences, notably to ensure that the designated inventor is the legitimate one and that he or she can benefit from rights linked to this status. To exercise these rights, the inventor must have a legal personality that AI systems or machines do not enjoy.

Finally, giving a name to a machine is not sufficient to satisfy the requirements of the EPC mentioned above.

Link to the rest at The European Patent Office

The thought randomly passed through PG’s morning mind while he was reading the OP.

Typically patent applications require some sort of attestation to the effect that the filer is the inventor and the facts in the application are true.

Here is the attestation language from a USPTO form for a Utility or Design application:

The above-identified application was made or authorized to be made by me.

I believe that I am the original inventor or an original joint inventor of a claimed invention in the application.

I hereby acknowledge that any willful false statement made in this declaration is punishable under 18 U.S.C. 1001 by fine or imprisonment of not more than five (5) years, or both.

Since the original applications in the OP named DABUS as the inventor, will a subsequent application signed by humans associated with DABUS be valid if someone has already attested that DABUS is the author and not the conniving humans who are trying to claim credit and rights to something they didn’t create?

Open content: 150,000 works from the museum collections of the city of paris, freely available

Jean Béraud (1849-1936). “Le boulevard des Capucines et le théâtre du Vaudeville”. Huile sur toile, 1889. Paris, musée Carnavalet.
Jean Béraud (1849-1936). “Façade de l’Opéra un soir de gala”. Aquarelle, gouache. Paris, musée Carnavalet.
Victor Dargaud (1850-1921). “Maison de la rue Fortunée”. Huile sur bois, 1899. Paris, maison de Balzac.

From Paris Musées:

From 8 January 2020, Paris Musées is offering as Open Content (i.e. making available without charge and without restrictions) 150,000 digital reproductions in High Definition of works in the City’s museums.

The launch of Open Content will mark a new stage in Paris Musées’ digitisation policy. It will contribute to enhancing and improving the way our collections are made available and will strengthen the measures taken to ensure better public access to art and culture as well as increasing visibility and understanding of the works in our municipal collections.

Making this data available guarantees that our digital files can be freely accessed and reused by anyone or everyone, without any technical, legal or financial restraints, whether for commercial use or not.

Digital files that contain works that belong in the public sphere under a CCØ (Creative Commons Zero) licence will be made available to everyone via the Paris Musées’ Collections portal. At first only reproductions of works in 2D that are not copyright restricted will be available as Open Content, those works that are still in copyright will be in low definition in order to illustrate, on the Internet site, what is available in the collections. Art lovers will now be able to download works by the great names in photography (Atget, Blancard, Marville, Carjat) or in painting (Courbet, Delacroix, Rembrandt, Van Dyck).

. . . .

This policy of free access is part of a programme of development, cultural mediation and opening up of the collections to Internet users. Each user will receive a file that contains an image in HD (300 dpi – 3000 pixels), a document with information about the work and a copy of the Good Practice Charter for images available under CCØ licence which will ask a user to cite the source and offer information about the work.

Although this licence is already used by international museums such as the Rijksmuseum in Amsterdam and the Metropolitan Museum of Art in New York, Paris Musées will be the first French institution to take part and make available a considerable number of reproductions.

Paris Musées, as the producer and distributor, will allow everyone to easily, enduringly, freely and instantly use High Definition images to support their research and improve their physical and digital cultural mediation tools. The reproductions of the works in the scheme will also be part of virtual exhibitions which will include cultural mediation to provide users with as much information as possible.

. . . .

How to access the free of copyright reproductions ?

Via the collections portal :

On parismuseescollections.paris.fr, the images of those works that are under CCØ licence can be downloaded either directly from the file that contains the work in question, or via the home page, from a page dedicated to images free of copyright.

Via the API :

The API (Application Programming Interface) is an interface linked to an app. Access to Paris Musées data via the API has added to our Open Content Policy by making it possible to download High Definition copyright free images and also tie these in to information linked to the works.

. . . .

As the producer and distributor Paris Musées will allow anyone, with just one click, to obtain the reproduction of a work from our collections, to print it, draw inspiration from it or even use it as a screensaver.

In response to strong demand from researchers, students and teachers, we are ensuring they can easily, enduringly, freely and instantly use High Definition images to support their research, their teaching and their publications, thereby improving their physical and digital cultural mediation tools.

To showcase the reproductions of the works concerned, Paris Musées will create targeted virtual exhibitions which will bring users a maximum of information while encouraging them to download and reuse the images.

Link to the rest at Paris Musées

Just so everyone is aware of the license attached to these works and granted to the world in general:

CC0

“No Rights Reserved”

CC0

CC0 enables scientists, educators, artists and other creators and owners of copyright- or database-protected content to waive those interests in their works and thereby place them as completely as possible in the public domain, so that others may freely build upon, enhance and reuse the works for any purposes without restriction under copyright or database law.

In contrast to CC’s licenses that allow copyright holders to choose from a range of permissions while retaining their copyright, CC0 empowers yet another choice altogether – the choice to opt out of copyright and database protection, and the exclusive rights automatically granted to creators – the “no rights reserved” alternative to our licenses.

The Problem

Dedicating works to the public domain is difficult if not impossible for those wanting to contribute their works for public use before applicable copyright or database protection terms expire. Few if any jurisdictions have a process for doing so easily and reliably. Laws vary from jurisdiction to jurisdiction as to what rights are automatically granted and how and when they expire or may be voluntarily relinquished. More challenging yet, many legal systems effectively prohibit any attempt by these owners to surrender rights automatically conferred by law, particularly moral rights, even when the author wishing to do so is well informed and resolute about doing so and contributing their work to the public domain.

A Solution

CC0 helps solve this problem by giving creators a way to waive all their copyright and related rights in their works to the fullest extent allowed by law. CC0 is a universal instrument that is not adapted to the laws of any particular legal jurisdiction, similar to many open source software licenses. And while no tool, not even CC0, can guarantee a complete relinquishment of all copyright and database rights in every jurisdiction, we believe it provides the best and most complete alternative for contributing a work to the public domain given the many complex and diverse copyright and database systems around the world.

Using CC0

Unlike the Public Domain Mark, CC0 should not be used to mark works already free of known copyright and database restrictions and in the public domain throughout the world. However, it can be used to waive copyright and database rights to the extent you may have these rights in your work under the laws of at least one jurisdiction, even if your work is free of restrictions in others. Doing so clarifies the status of your work unambiguously worldwide and facilitates reuse.

You should only apply CC0 to your own work, unless you have the necessary rights to apply CC0 to another person’s work.

Examples

  • Europeana — Europe’s digital library — releases its metadata into the public domain using CC0. This massive dataset consists of descriptive information from a huge trove of digitized cultural and artistic works. By removing all restrictions on the use of the metadata that describes these cultural works, Europeana creates opportunities for developers, designers, and other digital innovators to create applications, games for mobile devices, and websites that visualize and represent the diverse collection of artistic works in Europeana. See Europeana releases 20 million records into the public domain using CC0.
  • figshare allows researchers to publish all of their research outputs in an easily citable, searchable, shareable manner. Figshare has adopted CC0 as the default tool for researchers to share their datasets. In many cases, it can be difficult to ascertain whether a database is subject to copyright law, as many types of data aren’t copyrightable in many jurisdictions. Putting a database or dataset in the public domain under CC0 is a way to remove any legal doubt about whether researchers can use the data in their projects. Hundreds of organizations use CC0 to dedicate their work to the public domain. Although CC0 doesn’t legally require users of the data to cite the source, it does not affect the ethical norms for attribution in scientific and research communities.
  • Open Goldberg Variations: Before the Open Goldberg Variations, public domain recordings of Bach’s Goldberg Variations were hard to find, even though the scores themselves were in the public domain. Open Goldberg Variations wanted to change that, so it teamed up with professional musician Kimiko Ishizaka and started a Kickstarter project to create studio-quality recordings, promising to release them into the public domain using the CC0 public domain dedication tool. According to the project founders, “Musicians are usually not willing to withdraw their copyrights and their control over usage, but we feel that they thus miss opportunities to contribute to the greater good and benefit from wider distribution of their works. If this project succeeds, we hope that the recording will be available to everyone forevermore, and that it will be a truly widely known and enjoyed artistic work.” Sure enough, the project was funded at nearly double its original funding goal, and as a result all 30 variations performed by Kimiko Ishizaka are now available for free download via CC0.
  • Metropolitan Museum of Art: All public domain images in its collection are shared under CC0, which expanded their digital collection by over 375,000 images as well as provided data on over 420,000 museum objects spanning more than 5,000 years. Through the power of the commons, billions of people are now able to enjoy the beauty of the Met’s collections as well as participate in the continued growth of the commons, utilizing the infrastructure that makes greater collaboration possible.

And, because you should eat your vegetables, get at least 8 hours of sleep every night and read as many copyright licenses as possible, here’s the official legal language governing CC0:

CREATIVE COMMONS CORPORATION IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS DOCUMENT DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN “AS-IS” BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE USE OF THIS DOCUMENT OR THE INFORMATION OR WORKS PROVIDED HEREUNDER, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM THE USE OF THIS DOCUMENT OR THE INFORMATION OR WORKS PROVIDED HEREUNDER.

Statement of Purpose

The laws of most jurisdictions throughout the world automatically confer exclusive Copyright and Related Rights (defined below) upon the creator and subsequent owner(s) (each and all, an “owner”) of an original work of authorship and/or a database (each, a “Work”).

Certain owners wish to permanently relinquish those rights to a Work for the purpose of contributing to a commons of creative, cultural and scientific works (“Commons”) that the public can reliably and without fear of later claims of infringement build upon, modify, incorporate in other works, reuse and redistribute as freely as possible in any form whatsoever and for any purposes, including without limitation commercial purposes. These owners may contribute to the Commons to promote the ideal of a free culture and the further production of creative, cultural and scientific works, or to gain reputation or greater distribution for their Work in part through the use and efforts of others.

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Major Labels’ Billion-Dollar Payday Under Fire As Cox Communications Challenges ‘Shockingly Excessive’ Damages Verdict

From Music Business Worldwide:

In December, a jury ruled that US-based internet service provider Cox Communications was liable for the infringement of over 10,000 music copyrights by its users. The company was ordered to pay Universal, Sony and Warner a whopping $1bn in collective damages – equivalent to just over $99,000 for each of the 10,017 works infringed.

. . . .

Cooper noted Warner’s satisfaction with the ruling, which he pointed out was the fifth largest U.S jury award in the whole of 2019, and which, he said, “clearly demonstrates that juries understand piracy is not okay”.

Cooper noted that WMG and/or the record industry had also brought similar cases against four other ISPs: Charter, Grande, RCN and Bright House, “all of which should proceed to trial within the next 12 to 18 months”.

. . . .

Cox Communications just lodged a fierce legal motion challenging the $1bn damages verdict – calling it “unprecedented”, and suggesting that the amount of money it’s being told to pay is “grossly excessive”.

According to a Memorandum filed Friday (January 31) by Cox and obtained by MBW, the company calls for one of two new outcomes – either a remittitur (i.e. a reduction in the amount of damages awarded) or an entirely new trial.

The Memorandum, filed with the Eastern District of Virginia Court, argues: “The $1 billion award is a miscarriage of justice; it is shockingly excessive and unlawfully punitive, and should be remitted or result in a new trial.”

Cox adds: “The award of $1 billion appears to be the largest award of statutory copyright damages in history. This is not by a matter of degree. It is the largest such award by a factor of eight.

. . . .

“It is the largest such award for secondary copyright infringement by a factor of 40. It is the largest jury verdict in the history of this District by a factor of more than 30.

“It is by any measure a shocking verdict, wholly divorced from any possible injury to Plaintiffs, any benefit to Cox, or any conceivable deterrent purpose.”

Cox argues that the $1bn damages verdict “exceeds the aggregate dollar amount of every statutory damages award rendered in the years 2009-2016 by more than four hundred million dollars”.

The firm cites what it calls the three previous biggest copyright statutory damages awards in the States: (i) Atlantic Recording v. Media Group Inc in 2002 ($136m); (ii) Disney Enters., Inc. v. Vidangel, Inc in 2019 ($62.4m); and (iii) UMG Recordings, Inc. v. MP3.Com, Inc in 2000 ($53.4m).

Cox posits that all three of these verdicts “were rendered against direct infringers — people who actually misappropriated the copyrighted material for their own use and profit”. In most cases, it says, these infringers “were conducting businesses based upon copyright infringement” making them “adjudicated pirates”.

. . . .

As an ISP, Cox argues that such an accusation does not apply to its business, suggesting that rather than being a “direct infringer”, it should instead be classified as a “secondary infringer” in the December ruling.

Cox then points out that the largest statutory damages ever awarded against a secondary infringer happens to be against itself – $25m in BMG Rights Mgmt. LLC v. Cox Communications, Inc. (2015).

“The $1 billion award thus appears to be the largest ever against a [secondary] infringer situated like Cox — by a factor of 40,” it says.

Link to the rest at Music Business Worldwide

Liability for trade mark infringement of online marketplaces in Europe

From The Journal of Intellectual Property Law and Practice:

Online marketplaces reach potential customers all over the world, but can also be used for goods infringing intellectual property rights. Even when online marketplace operators do not themselves participate in such transactions, they do draw economic benefit therefrom, e.g. by charging a fee per transaction. So, to what extent can they be held liable for the sale of infringing goods through their platforms? 
Whereas such operators qualify as providers of information society services in the sense of the E-Commerce Directive, they are also intermediaries in the sense of Article 11 of the IP Enforcement Directive. And like any economic operator, they must abide by the trade mark laws and other legislation. 
The interpretation of these distinct sets of rules has given rise to a number of decisions of the Court of Justice of the European Union (CJEU). Certain aspects seem to have been settled by now, but many issues remain open. Absent contributory infringement in EU trade mark law, one of the most pressing questions is if, and to what extent online marketplaces can be held liable for direct trade mark infringement.

. . . .

The Coty/Amazon case (C-567/18), currently pending before the CJEU, might shed some light over the first question, namely the liability for direct trade mark infringement of online marketplace operators, especially when they engage in additional services like they often do nowadays. Such additional services can include supplying the goods to buyers, assisting sellers in promoting the sale of their goods. 
The teaching to be expected from the Coty/Amazon judgment will largely depend on how the CJEU will interpret the preliminary referral. If it sticks to the facts as presented to it by the German Supreme Court, then it will probably not go as far in its analysis as did the Advocate General, who opened the door to direct liability for trade mark infringement of online marketplace operators, and by extension, online intermediaries in general. Hence, further guidance might be on its way … or not just yet. 

. . . .

Liability for direct trademark infringement should not be accepted too soon, at least if online marketplace operators clearly communicate their role to the consumer. After all, establishing a direct trade mark infringement requires an adverse effect on one of the functions of the trade mark. At least as far as the essential origin function is concerned, no impairment thereof can be presumed if the advertising is not misleading as to the nature of the operator. As stated by the Advocate General in L’Oréal/eBay, in 2011, and even more so today, consumers are used to the existence of various intermediary economic activities. 
Of course trade mark owners should not be left without ammunition. An equitable balance between the interests of online marketplace operators and the interests of trade mark owners could be found by imposing higher monitoring duties on online marketplace operators assuming an ‘active’ role. Where such ‘active’ intermediaries cannot benefit from the hosting exemption, they can be liable for tort if they have not been sufficiently diligent and a causal link exists between their lack of diligence and the damage suffered. Requiring them to display a higher degree of diligence could therefore solve a lot. It would make sense to have a proactive monitoring duty the extent this is proportionate to the degree of their involvement. 

. . . .

In this area – the prevention of infringements – an important challenge for online marketplace operators lies in setting up more performant technologies to reveal potential trade mark infringement by their customers/vendors. Automated identification and/or enforcement and voluntary, non-judicial takedown mechanisms established between online intermediaries and IP rights owners are bound to become increasingly important.

Link to the rest at The Journal of Intellectual Property Law and Practice

It’s not easy (at least for PG) to discover how many trademarks there are in the world. According to the latest information (2016) he could find from the World Intellectual Property Organization (WIPO), there were an estimated Seven Million trademark applications worldwide just during that single year.

PG downloaded a spreadsheet from WIPO summarizing trademark filings on a country-by-country basis from 1980 to 2018. The spreadsheet was 42 columns wide and 203 lines long. For those who may be arithmetically-impaired (as PG is) that is more than 8,500 separate data points.

These numbers show a total of more than 22 million trademark applications filed during that time.

Some trademarks disappear and others go on and on and one. In the US, trademark rights can last indefinitely as long as the owner continues to use the mark to identify its goods or services. The term of a federal trademark is 10 years, with 10-year renewal terms.

Per Wikipedia, the oldest U.S. registered trademark still in use is trademark reg. no 11210, . . . a depiction of the Biblical figure Samson wrestling a lion, registered in the United States on May 27, 1884 by the J.P. Tolman Company, now Samson Rope Technologies, Inc., a rope-making company.

Additionally, although trademarks are typically issued on a country-by-country basis but international treaties provide that trademarks registered in one nation will be recognized and enforceable in other treaty nations. Under The Madrid System (named after the city where the two underlying treaties were negotiated) is a system for the international registration of marks. It provides a means to seek protection for a trademark simultaneously in a large number of jurisdictions.

One additional complication – trademarks are issued for a particular class of goods/services so different individuals or companies may own identical trademarks that are enforceable for different categories of goods or services. For example, in the US, Ace is a trademark for hair brushes and Ace is also a trademark for stapling machines and The American Council on Education.

So, how does an online marketplace like Amazon build a system that can allow it to determine whether the name of a product sold on its marketplaces around the world infringes the trademark belonging to another individual or company without hiring the largest collection of trademark attorneys in the world?

Multiple countries, lots and lots of different product categories and a legal regimen for enforcing trademarks that may be applied differently in one nation than it is in another.

Here’s a link to a New York Times story about how a trademark can lose its protection if it becomes generic.

Caught smuggling Picasso on his yacht, Spanish billionaire collector gets €52m fine and 18 months in prison

From The Art Newspaper:

The Spanish billionaire who tried to smuggle a Picasso painting out of Spain has been sentenced to 18 months in prison and fined €52.4m. Jaime Botin, part of the Santander banking dynasty, was convicted by a court in Madrid earlier this week.

The work, Head of a Young Woman (1906), was seized from Botin’s yacht, known as Adix, off the coast of Corsica, France, in 2015. According to Spain’s strict heritage laws, permits are required for exporting items more than 100 years old, which can be classified as “national treasures”.

. . . .

According to Bloomberg, prosecutors argued that Botin, who bought the work in 1977, was smuggling the painting out of Spain and hoped to sell the piece at a London auction house. But Botin said he was taking the painting to Switzerland for safekeeping.

The work was originally due to be sold at Christie’s London in February 2013, but the Spanish culture ministry subsequently barred the work from being taken abroad. Ownership of the work has since been transferred to the Spanish state.

Link to the rest at The Art Newspaper

With Friends Like Wyden

From The Illusion of More:

Anyone who is consistently engaged on copyright issues is used to hearing the rhetoric from the major critics, who say things like We support creators while they advocate policies that will further erode authorial rights.  Whether these parties engage in this kind of chicanery in order to sacrifice artists at the altar of Big Tech, or they do it just because they are petty iconoclasts is subject to a case-by-case consideration.  But if that same I care about you message is delivered by a senator to his constituents, it is acutely disappointing when he returns to the cloister of Washington D.C. and totally screws them over.  

The fact that Senator Ron Wyden was going to do exactly this to Oregon’s creative community is prefaced in at least two town hall meetings captured on videos that I have seen.  In one of these clips (which has not been made public), Portland-based photographer Tim Trautmann asks the senator about releasing his one-man hold on the CASE Act.  After assuring the artists, musicians, photographers et al in attendance that he is “very sympathetic” to the need for a small-claim copyright option, Wyden then patronizes his constituents in a rather cloying display in the political art of hokum.  First, by alluding to a mostly-false narrative in which he negotiated the amendments necessary to pass the Music Modernization Act (2018), Wyden then cites this unearned credential to imply that he will likewise help shepherd the CASE Act to passage with a few minor amendments that he personally believes are necessary.

From there, the senator rather predictably aped the tech-industry talking point that “teenagers and grandmothers posting memes could be harmed” by the small-claim copyright process, lapsing into cringy rhetoric, telling the “good people” in the room that he knows they do not want to hurt teenagers and grandmothers.  In a similar video clip captured at Newberg by Trautmann, Wyden does the “grandmothers and teens” spiel along with other familiar, industry talking points, including the fallacious assertion that the small-claim tribunal would provide fresh opportunity for copyright trolls to ply their dark arts. 

. . . .

Presumably the good people in those rooms know that Senator Wyden can read the bill and at least acknowledge its many safeguards designed to alleviate the very concerns the senator pretends that he alone is now raising.  Not the least of these would be the mandate that the small-claim tribunal is VOLUNTARY.

. . . .

So, after blowing all that smoke around various rooms in the state, Senator Wyden returned to D.C. and asked for changes to the CASE Act that would effectively obliterate its whole purpose for existing—a.k.a. poisoned pills.  For instance, his proposal to reduce the damages caps by 95% of their current level is not only too extreme a revision to call a “compromise,” but it shows the senator’s underlying contempt for the bill, for copyright in general, and, by extension, for those constituents he basically blew off in the town hall meetings.  A damages cap as low as $750 for a single claim (Wyden’s proposal) is so low that it barely covers the cost of filing the complaint and is, consequently, no deterrent to the kind of real-world infringements most rights holders have a problem addressing. 

. . . .

On a phone call with several Oregon creators, another Portland-based commercial photographer, Michael Shay, relayed an anecdote about Trautmann that is exemplary of the conflicts the CASE Act was written to resolve.  After a local restaurant used one of Trautmann’s images without permission on its website for promotional purposes, the photographer requested a very reasonable few hundred dollars for the continued commercial use of the photo.  “When the restaurant did not respond to letters and phone calls from his lawyer,” says Shay, “Trautmann expressed frustration about the situation to friends on social media, and that led to resolving the issue.” 

I know.  We can almost hear the chorus of tech-utopians exalting the use of social media pressure as a form of enlightened, DIY justice.  But as Shay observed, social media “shaming” (i.e. a public fight) is not a very healthy solution for anybody involved—neither the copyright owner nor the infringing user—least of all in a relatively small community like Portland.  On the contrary, civil laws exist in part to keep society from devolving to tribes of bullies; and very few copyright owners want to resort to bullying just so they can be fairly compensated for the use of their works.  “I very reluctantly went to social media to talk about this issue at all,” Trautmann later told me.  “I confided my feelings to one friend on Facebook, who then wrote a scathing review of the restaurant on Yelp!, and that resulted in settlement of the infringement matter.” 

So, as indicated in my last post on this topic, Senator Wyden might want to look beyond his personal biases about copyright and the CASE Act and take a more holistic view of the community he was elected to serve.  A copyright small-claim board is a civilized, voluntary (did I mention voluntary?) solution to a conflict between two members of a community—the copyright owner and the average commercial infringer like that restaurant—not the least consideration being that the restaurant would lose big in a federal case, if Trautmann had to file a lawsuit. 

Link to the rest at The Illusion of More

Maradona successfully sues Dolce&Gabbana over unauthorized use of his name on a jersey

From The IPKat

Readers might remember that, a couple of years ago, this blog reported on a lawsuit filed in Italy by former Argentinean footballer Diego Armando Maradona against Italian fashion house Dolce&Gabbana.

The reason?

The use, by the defendants, of his name on a jersey (below) worn by a model during a fashion show held in Naples in 2009 [Maradona played for Napoli for a few years, and in that city he reached the peak of his career]. The jersey, which was sold neither before nor after the show, carried the number ‘10’, ie the same number used by Maradona while at Napoli, and had the same colour combination as Napoli jerseys. Images of the jersey appeared on general interest media and also on the Dolce&Gabbana website.

. . . .

Maradona sued and claimed damages for EUR 1 million (!) due to the unauthorized commercial exploitation of his name. He submitted that Dolce&Gabbana’s use of his name had allowed them to take an unfair advantage of his repute and also likely misled the public into believing that there would be a commercial partnership between himself and the defendants.
News has reached The IPKat that now the Milan Court of First Instance has issued its decision on the matter, finding in favour of Maradona. The court noted that [the translation from Italian is mine]:

 Without any doubt, the use of a decorative element which reproduces a third-party distinctive sign or name, leads – to say the least – to the establishment of an association with that person. If the sign is well-known, also and above all in a non-commercial sector, and conveys – like the sign at issue – particular impressions of historical allure and football excellence, it cannot be freely used by third-party undertakings without the permission of the rightholder.

Link to the rest at The IPKat

Generally speaking, PG suggests that you’ll have a quieter life as a fiction author if you create fictional characters with fictional names.

Briefly, there are two classes of potential claims if you use the name of a real person.

In the US, these are state laws, so there is no federal law you can rely on across the US. As you can see from the OP, there are also similar laws in some other countries, so if you publish internationally, you, too may be subject to the laws of Italy even if you live in Wichita.

The two types of claims are usually characterized as follows:

1. “The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona, which shall be referred to in this article as the “individual’s identity”. Protecting the individual from the loss of commercial value resulting from the unauthorized appropriation of an individual’s identity for commercial purposes is the principle purpose of this body of law.” See Findlaw for more.

2. “Invasion of Privacy: Appropriation of a Name or Likeness

An individual may have a cause of action for invasion of privacy when their name, likeness, or some other personal attribute of their identity has been used without permission. For example, a business may use an individual’s personal photograph without consent to advertise its product. Alternatively, a person may use the name and personal information of another without consent for professional gain.

To succeed in an appropriation lawsuit, you must prove that:

1. You didn’t grant permission for the use of your identity.

2. The defendant utilized some protected aspect of your identity.

(The law varies state-by-state on what constitutes a protected aspect of identity. For example, California law expressly protects a person’s name, likeness, voice, signature, and photograph, whereas Florida statutory law is more limited, protecting only a person’s name, likeness, portrait, and photograph. State statutory law differences are frequently minimized by case law, but these differences nonetheless can affect the strength and scope of your claim.)

3. The defendant used your identity for their immediate and direct benefit.

(This “benefit” is typically commercial, as in the use of a personal photograph for advertising. Some states, such as Florida, limit liability to situations involving a commercial benefit. In other states, however, liability may attach even if the defendant appropriated the identity for a noncommercial benefit, such as impersonation for professional gain.)” See Findlaw for more.

PG suggests that you don’t really need to use Kim Kardashian’s name in your novel. Search on the term “name generator” and you will find lots of websites that will help you create a fictitious name for your wealthy Beverly Hills heroine.

Reedsy is one such site.

Here, for example, is a suggestion for an Old Celtic female character:

Donnag Ó Mocháini

First name means: “World ruler.”

And a male Hindu god:

Yama

First name means: “Buffalo-headed lord of death.”

And a Dragon:

Draak

Which means: “That nasty lawyer who representeded my husband in our divorce last year.”