Are tattoos protected by copyright?

From Copyright Alliance:

Yes, tattoos can be protected by copyright.

Copyright can protect pictorial and graphic works so long as they are fixed in a physical object and display originality. Since tattoos are, by definition, fixed—Merriam Webster defines a tattoo as “an indelible mark or figure fixed upon the body by insertion of pigment under the skin or by production of scars“—the threshold question in determining if a particular tattoo is protected by copyright is whether the tattoo is sufficiently original. In the context of copyright, originality doesn’t necessarily mean “novel.” Instead, it requires that the expression be original to the author (i.e. it cannot be copied from someone else), and it must possess at least a minimal amount of creativity.

This issue becomes complicated in the context of video game depictions of tattoos. In 2012, Christopher Escobedo, a tattoo artist based in Arizona, sued THQ, Inc., the makers of the video game UFC Undisputed 2010, for its depiction of a tattoo that Escobedo designed and tattooed on the torso of Carlos Condit—who was at the time the “interim Ultimate Fighting Championship (“UFC”) Welterweight Champion.” The case was ultimately settled out of court.

In 2016, tattoo company Solid Oak Sketches sued Take-Two Interactive for copyright infringement based on the company’s depiction of Lebron James’ tattoos in the game and cover art for the game. In March 2020, a federal judge ruled that Take-Two Interactive could not be sued for copyright infringement over the use of Lebron James’ and other players’ tattoos in its NBA 2K video game. The court reasoned that because tattoo artists know that the tattoos of famous athletes are likely to be displayed in public, they necessarily granted the players a non-exclusive license to use the tattoo as part of their likeness. In addition, the court found the use to be de minimis and transformative fair use.

Link to the rest at Copyright Alliance

Why This Poet Declared War on Her Own Book

From The Walrus:

THEY KILL THE WOMEN and the children first. This is the most cost-effective decision. The captain knows by heart the commodity value of a child, knows the women will be worth less than the men at the auction block. So he picks the obvious choices: he orders the crew to push them, the women and the children, through the cabin windows and into the Atlantic.

It’s September 1781, and having departed the Guinea Coast for a sugar port in Jamaica, the Zong is overloaded with enslaved Africans. Because the captain lacks navigational and command experience, the voyage will take eighteen weeks instead of the usual six; the ship will run low on drinking water; slaves and crew members will take ill and die; the captain will become desperate. Soon enough, he will compensate for his mediocrity with quick and murderous calculations. Over the course of ten days, to conserve resources, he and his crew will sacrifice Africans to the sea—according to some sources, it may have been as many as 150. When the ship docks in Jamaica, the captain will file an insurance claim for the loss of his “cargo.”

Here is how a massacre enters history: as a story of property destruction.

In 2008, the Toronto-based writer M. NourbeSe Philip published a dizzying, fragmented book-length poem entitled Zong!: As Told to the Author by Setaey Adamu Boateng, a seven-year archival project that bears witness to those atrocities and attempts, as the author says, to “defend the dead.” She composed and rearranged the text using words sourced exclusively from the two-page legal case report of the insurance claim she tracked down in the University of Toronto’s law library. In time, Zong! became a widely studied work of contemporary literature, performed dozens of times in at least nine countries and excerpted in arts galleries globally. Critics have described it as a masterpiece.

In early 2016, Philip received an enthusiastic email from a woman called Renata Morresi, a translator and poet who teaches American literature at the University of Padua in Italy. Morresi wanted to translate Zong! into Italian. Her academic research focused on, among other subjects, “slavery and its ‘unconventional’ representations,” and she had been recently awarded Italy’s national prize for translation. She thought Zong! could be valuable to Italians who were striving to make sense of their own contemporary crisis. That year alone, CNN reported, an estimated ninety migrants from North Africa and other Arab countries were drowning every week in the Mediterranean in their bid to escape violence, poverty, persecution, and war. Morresi did not, at the time, have a publisher for the translation or a contract or anything in the way of a plan, and Philip felt the emails gave the enterprise the feel of an unserious project. She advised Morresi to contact Wesleyan University Press, the book’s American publisher, which owned rights to Zong!

“I don’t know whether you speak Italian,” Morresi wrote to Philip, “but if you feel like we can discuss the drafts (it would certainly be an invaluable help for me).”

The next time Philip heard from anyone about the Italian translation of Zong! was five years later, when a small Italian publisher called Benway Series emailed the proofs with an invitation to the book’s online launch. It came as a surprise. Neither Morresi nor Wesleyan had informed her that a formal agreement was signed and subsidiary rights to her book transferred. By then, two other translators had joined the project. The translation was supported by the Canada Council for the Arts, a public funder that serves Canadian artists and arts organizations, but the $13,350 it paid Benway Series had likewise changed hands without the artist’s knowledge. (Part of the CCA’s literary translation program serves international publishers.)

The lack of transparency confused her: it’s professional practice to involve the poet in any translation work. She emailed Suzanna Tamminen, the director and editor-in-chief at WUP, to confirm a contract had been signed, before congratulating the translators on their hard work. “I am honoured,” she wrote to Benway. “It is so important that this work reach European countries, many of which are the ground zero of the trauma that is ongoing.”

And then she saw what they had done to her book.

LITERARY TRANSLATION is an unforgiving balancing act. The Italian saying “traduttoretraditore”—or, “translator, traitor”—captures how any translation is destined to obfuscate the true meaning of the original, sealing the fate of what Miguel de Cervantes in the seventeenth century called a work’s “original luster.” The consequence is both reader and author are betrayed. Vladimir Nabokov famously translated his own novels into Russian to avoid seeing them “degraded and botched by vulgar paraphrases.” He was deeply contemptuous of Constance Garnett, a translator who basically brought Russian literature to the English-speaking world, because by favouring readability, she often elided an author’s idiosyncrasies. If translators seem inclined to fatalism, in other words, it’s because they’re tortured by the idea that their aptitude will be measured by how invisible they can make themselves.

The translator’s presence in Zong!, though, was not quite the object of Philip’s distress; Philip is not a Nabokovian purist. Translators have worked on her books before, with her approval. The problem was of another nature. Among the myriad reasons Zong! has become such a widely studied work are its disjunctive, distinctive visual qualities—a kinetic form charged with spiritual intent. The poetry sweeps across 180 pages in the manner of vocal jazz or a disordered musical constellation. As if carried off by waves, words float away from each other, swirl around, casting off letters like articles of clothing; syllables gurgle or stutter, refuse meaning. Isolated phrases, seemingly at random, tilt into cursive or italics. Submerged at the bottom of each page are imagined African names for the drowned, whose deaths were originally recorded as “negroe man” or “negroe woman.”

It had taken Philip years to find this form. It wasn’t until after a 2006 sojourn to Ghana, the departure point of the slave ship, that the book’s organizational principle began to slowly reveal itself. That principle became associated with a figure she called Setaey Adamu Boateng, who represented the ancestral voices she believed were speaking through the pattern she was painstakingly creating on the page. “Every word or word cluster,” she wrote in the book’s closing essay, “is seeking a space directly above within which to fit itself.” Those spaces are critical for Philip, because they are intended to represent the very air the enslaved were denied as they sank. “The text is attempting to revivify and recuperate what was lost in those last breaths,” Philip told me. “That, for me, is nonnegotiable.”

When Benway Series sent her the proofs in June 2021, the first thing Philip noticed was that this nonnegotiable rule had been broken. The PDF on her computer screen felt cluttered and claustrophobic. The Italian phrases often nearly grazed the lines beneath them. The formal protocols she had painstakingly established to turn Zong! into what she called a “mourning song” had not been respected. Morresi had attempted to capture the poetry’s pictorial shape, but the translator not only missed the logic behind why the text had been arranged that way, she also failed to consider how that arrangement might need to change when adapted into a foreign language. “What I am committed to is that it’s a dynamic action,” said Philip, referring to Zong! ’s form. “The words have to be positioned in such a way that they breathe.”

When Philip raised these concerns in an email to Benway Series, she was rebuffed. Morresi, wrote the book’s editors, was “extremely skilled and multi-award-winning,” and a first draft of the translation had been anonymously peer reviewed “in very positive terms.” WUP’s head emailed to say it wasn’t part of the normal process to send authors permission updates about their books, and that, anyway, “expanding the critical discourse on the book in this way helps to ensure [it] remains on reading lists for years to come.” Morresi emailed to note that any differences between the source text and its translation were attributable to Italian’s cumbersome morphology: the words inevitably run longer, which made it difficult to adhere to Philip’s unique spacing rules. She would have reached out directly to ask questions, Morresi said, but she assumed Philip wasn’t interested, and she didn’t want to disturb her.

. . . .

After weeks of fruitless discussions, as it became obvious Philip would not consent to the translation, Benway Series went ahead with publication. In late August 2021, when Philip received word that the press was preparing to distribute the book, she demanded the publisher destroy it and scrub all mention of the title from their website. WUP’s Tamminen, now swayed by Philip’s concerns, supported the request. Benway Series refused. In an email signed by two editors, the press argued they had done everything according to the letter of the law. Philip went public on social media and drew the support of more than 1,200 people—among them, poets, editors, scholars, publishers, translators, and readers—who petitioned to have the “flawed” translation recalled and destroyed.

Benway posted a rebuttal on its website, in Italian, that described Philip’s demands as reminiscent “of authoritarian and fundamentalist regimes around the world” and said her accusations of racism were “offensive, not so much to us . . . as much as for all the victims of that gruesome violence.”

It seemed to Philip that Benway Series expected her to be grateful for their attention, that the virtuousness of a small Italian press ought to be celebrated rather than contested. But she couldn’t understand why nobody there thought to contact her about the translation. “Even if there weren’t those underpinning spiritual, historical reasons why the structure of Zong! is important,” she said, “as an artist and as a poet, surely my work must be respected.”

. . . .

Moral rights stem from the Berne Convention, the leading international copyright treaty which states that even if an artist cedes economic rights to their work, they retain the legal grounds to “object to any distortion, mutilation or other modification” done to that work. One option, therefore, might have seen Philip file a lawsuit against Benway Series in Canada and, if she won, go to an Italian court to help enforce it. Neither of these actions would have been easy to pull off.

While Italy appears to provide substantial legal protections to writers and artists, there’s very little Canadian case law on the subject, even though the Snow ruling raised the bar for moral rights infringement. “What it did was set a precedent that in order to win in a case of moral rights, you had to prove that it damaged the honour and reputation of the artist,” said Martha Rans, a Vancouver-based lawyer who specializes in copyright law. But there’s a caveat: you need a reputation big enough that any damage to it can be quantified. “It becomes very difficult to mount a case,” said Rans, “because Canada doesn’t have a lot of what might be considered high-profile artists.”

Link to the rest at The Walrus

PG notes that he was unable to find anything in the OP which indicated that Ms. Philip registered her book in any nation’s copyright office.

The publisher of the original book, Wesleyan University Press, is mentioned only in passing in the OP.

For those not familiar with the institution, Wesleyan University is a very expensive private institution located in Middletown, Connecticut. Wesleyan is one of a small group of similar institutions that are sometimes called the “Little Ivies.”

PG wonders if Wesleyan Press actually granted translation rights to the Italian press or not. Small university presses don’t usually have piles of money sitting around, but, if it did not grant a license for an Italian translation of the book in question, one might think that it might think about raising a fuss about the Italian translation.

Here’s a fuzzy copy of the copyright page for the book.

Observant readers will note that Ms. Philip is listed as the owner of the copyright.

Here’s a list of various organizations that helped fund the creation of Zong.

There are a lot of wealthy organizations mentioned in these acknowledgements. The OP didn’t mention whether Ms. Philip sought the help of Wesleyan University or any of her funding organizations for help in this copyright dispute.

Perhaps he missed the copyright registration sentence in the OP, but, suffice to say, as a general proposition, registering a copyright with any western nation’s copyright office increases the options for enforcing the copyright in many other western nations, most certainly including Italy.

See here for a layperson’s explanation of the benefits of registering a copyright in the United States.

UPDATE

This whole situation seemed weird, so PG dug deeper and searched the United States Copyright Office for Zong.

Here’s what he found:

Registration Number / Date:
TX0007043340 / 2008-10-09

Copyright Claimant: Wesleyan University Press, Transfer: Written Contract.

What is a “Copyright Claimant”?

The US Copyright Office helpfully provides a definition:

Please identify all known copyright claimant(s) in this work. The author may always be named as a claimant, even if the author has transferred rights in the work to another person or entity.

The claimant may also be a person or entity that has obtained ownership of the copyright in the work. But to be named as a claimant, a person or organization must own all rights in the work; ownership of only some of the rights is not sufficient. In addition, a claimant must own the copyright in all of the authorship covered by this registration.

PG then searched Canada’s online copyright records (which are, on the whole, easier to access and understand than those in the US copyright office). PG was not able to find any copyright application for Ms. Philips or her book.

Under various copyright conventions and treaties, a registration of a copyright in one signatory nation is automatically recognized on the registration date in all the other signatories to the convention and/or treaty.

Thus, a registration in the US in 2008 would effectively offer backdated protection in all the other countries bound by the convention/treaty. PG is happy to be proven wrong, but he would think that a registration for Zong by Ms. Philips in Italy would be deemed to have been filed in 2008, the date of registration in the US should she wish to push for a shutdown of the illegal translation of her book.

Circling back around to Wesleyan University Press, it appears in that organization’s copyright registration for Zong that Ms. Philips may have signed over her rights under her copyright to the book to Wesleyan University Press.

However, the copyright page of the book shows Ms. Philips as the copyright owner.

PG isn’t certain if the book’s copyright attribution of the copyright to Ms. Philips was simply recognizing her as the author, but that’s not what the copyright page says.

Wesleyan Press, on the other hand, may have screwed up the copyright filing. Small university presses are not generally known as centers of copyright knowledge.

In PG’s mind, it’s possible that somebody at Wesleyan Press who registers a copyright once every 2-3 months max, may have registered the copyright for Zong “the way we’ve always done it,” and failed to change the Presses boilerplate to register the copyright in Ms. Phillips name as is implied by the book’s copyright page.

If any visitor to TPV has actually read down to the end of this quite lengthy post and has any knowledge concerning what actually happened with Ms. Philips and Wesleyan University Press, PG would appreciate any comments to clarify this apparent mess.

Maria Pallante, Copyright Crusader

From Publishers Weekly:

Maria Pallante took over as president and CEO of the Association of American Publishers in January 2017. In selecting Pallante, a former U.S. Register of Copyrights, the AAP pointed to her strong background in IP law and policy. Copyright protection has long been one of the main priorities of the AAP, and in a time when copyright issues have become more contentious, copyright protection is job one for the organization. Thus, in June 2020, the AAP coordinated a copyright infringement lawsuit by four publishers against the Internet Archive.

. . . .

For some time now, the AAP has made protection of copyright its top priority. Can you tell me how that decision was reached?

Copyright has been our top priority for more than five decades because it is the legal foundation of the publishing industry, but you are right that we’ve been unusually busy of late. That’s because the Internet Archive and its affiliate Library Futures have aimed a series of torpedoes at the Copyright Act, efforts that would irrevocably weaken the ability of authors to license their works, if not create them in the first place. Our board has prioritized these threats and takes them seriously, as should anyone who cares about the future of books.

When e-books first emerged, many publishers were concerned that their “frictionless” ease of use through libraries would lead to a decline in the sales of both print and e-books. That talk faded, but it seems to be a concern once again, with publishers seeing it as a reason e-book sales have not grown. Is that something that’s being talked about?

This is a fair observation, because e-book sales are definitely declining and e-borrowing is definitely exploding. Logically, the more seamless it becomes to download a digital copy for free without waiting, the more publishers will worry about the balance between their respective markets. They have a responsibility to their authors and their own sustainability to do so.

In a recent e-book study, the Federation of European Publishers proved the correlation between frictionless borrowing and consumer decline, and I don’t think anyone was surprised by that conclusion. But for copyright businesses, friction is an established calculation that goes far beyond libraries. It’s the reason we experience a constantly changing menu of streaming, subscription, and download services for music, movies, and video games, with continual adjustments to pricing, release dates, and wait times. These terms can be mystifying, indeed frustrating, from the outside, but they are designed to promote creative works within fiercely competitive environments.

I do think publishers have worked hard to provide e-books to libraries at the same time as consumer releases, because librarians are respected partners in a book’s success. As OverDrive reports, libraries achieved all-time records for digital loans in 2021 while lowering the average cost per title borrowed. Indeed, most licenses permit libraries to transmit e-books to patrons dozens of times under terms that are, all told, a fraction per-use of what consumers pay for restricted access, meaning no redistribution.

One thing I can say with confidence is that technology is constantly evolving, and therefore authors, publishers, and libraries, as well as booksellers, will continue to negotiate their respective agreements and budgets. Copyright markets don’t work very well if they’re stuck in time, which is why we no longer have eight-track cartridges in our cars.

What is your view of controlled digital lending, or CDL?

CDL is a baseless justification for infringement and antithetical to both copyright law and common sense. It was hobbled together by a small group of individuals with close ties to the Internet Archive, and for that reason it will always be associated with that defendant’s conduct. The law is clear that formats are distinguishable, meaning that no one—not a private person, public library, or pirate—may distribute digital bootlegs of tangible copies, whether they are ripping hardcover books, vinyl albums, or compact discs. It doesn’t matter if the defendant claims to manage a virtual bookshelf or maintains the physical copies, as made clear by cases in the music and movie space. Courts have decried such format shifting because it exceeds the first-sale doctrine and forces authors to subsidize activity that they did not license and cannot contain.

What I will say as a former policymaker is that there are important instances in which libraries and museums should be able to make copies of works in or for their collections—for example, to capture, preserve, or loan at-risk material. But activity like this does not require a new theory and moniker: it will already be governed by fair use and/or the detailed library exceptions in the Copyright Act. Neither Congress nor the courts has ever sanctioned a practice like CDL, because it strips authors of the benefit of their intellectual property, while permitting aggressors to prosper in their stead.

Link to the rest at Publishers Weekly

The court of art criticism is in session

From SCOTUSblog:

Today, the court’s attention will be on the often glamorous worlds of Pop Art, rock photography, and glossy magazines. It will veer into “Lord of the Rings,” “Jaws,” “Mork and Mindy,” and “The Jeffersons.” And one of the lawyers participating today will try to bury a beloved television producer and social activist. But I’m getting a little ahead of myself.

. . . .

And then it is on to the argument in Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, a copyright dispute over a photograph of the musician Prince. Rock photographer Lynn Goldsmith, who took the photo of a vulnerable and sensitive-looking Prince in 1981, when he was still an up-and-coming musical artist, is in the second row of the public gallery today.

When Prince shot to stardom by 1984 with his “Purple Rain” album, Vanity Fair licensed Goldsmith’s photo for use as an artist’s reference for an illustration to accompany a profile of Prince. The artist they engaged was Andy Warhol, famous for his paintings of Campbell’s Soup cans and celebrities such as Marilyn Monroe.

Warhol cropped and silkscreened Goldsmith’s photo into a series of 16 images of Prince, now known as the Prince series. One of those — “Purple Prince” — ran with the Vanity Fair article. Another, “Orange Prince,” ran on the cover of a commemorative magazine that publisher Condé Nast issued after Prince’s death in 2016.

Left: A 2016 Vanity Fair cover featuring Andy Warhol’s image of Prince. Right: Lynn Goldsmith’s 1981 photograph of Prince, which was a basis for Warhol’s image. (Source: court documents)

Goldsmith objected to the 2016 use as a violation of her copyright, though the New York City-based Andy Warhol Foundation filed suit pre-emptively to seek a declaration that the entire Prince series was a fair use under copyright law because, according to the foundation, Warhol’s images transformed Goldsmith’s photo into a new work with a different meaning or message.

Roman Martinez, representing the foundation, tells the court that “the stakes for artistic expression in this case are high. A ruling for Goldsmith would strip protection not just from the Prince series but from countless works of modern and contemporary art. It would make it illegal for artists, museums, galleries, and collectors to display, sell, profit from, maybe even possess a significant quantity of works. It would also chill the creation of new art by established and up-and-coming artists alike.”

Goldsmith is shaking her head as Martinez speaks. Throughout the argument, she will visibly show her disagreement or nod in agreement with various points made by the lawyers and justices. Elsewhere in the courtroom are several representatives of the foundation—President Joel Wachs, Chair Paul Wa, and Chief Financial Officer and Treasurer KC Maurer. I can’t see whether they are shaking their heads or not.

Link to the rest at SCOTUSblog

Why ideas are worthless in copyright terms

From Arts Hub:

Consider this scenario… let’s call it Situation A. An artist applies for a large commission with a high profile arts institution. Their application includes detailed plans of their proposed project. Yet after receiving news their application was unsuccessful, they realise another applicant has been engaged by the same institution to deliver a project with similarities to their proposal.

Then there’s this circumstance – let’s call it Situation B. An emerging artist opens a dialogue with an esteemed curator about their work. Their discussions, which take place over a number of months, include the artist divulging plans for future artistic projects. After conducting these seemingly trustworthy talks over time, the artist sees that one of the curator’s forthcoming exhibitions has used the artist’s independently conceived ideas as the basis for that show.

What kind of action can these artists take to highlight these injustices and secure compensation for their losses?

The unfortunate news is that in legal terms, neither artist in those situations is likely to be compensated for these breaches of trust, nor would they gain rights to be acknowledged as the original creators of the works.

Basic rules of thumb in IP for artists

The IP outcomes in these scenarios come down to the fact that the laws in this area only cover the creator’s work – they do not cover their ideas.

Aditya Vasudevan is a solicitor with Arts Law, and during his time advising artists in areas of IP law, he has seen a host of different cases where the lines between ideas and artworks have been difficult to discern.

However, when it comes to protecting yourself against any kind of IP infringement there are some basic precautions creatives can take to help lessen their risks.

Number 1: Realise that ideas are worthless

Vasudevan says that fundamentally, artists must realise that in copyright terms, their creative ideas are worthless until those ideas form part of a tangible piece of work – whether that be as a drawing, a painting, a script, a musical score or a work of literature (for example).

‘Copyright law doesn’t protect ideas, concepts or facts. It only protects your specific creative expression of those things in a material form,’ he explained.

‘For example, copyright wouldn’t protect the idea of painting a particular beach at sunset, but it would protect your specific painting of that beach.’

Number 2. Documentation can help you  

The Arts Law solicitor also said that if and when artists decide to take legal action related to breaches of IP in their work, showing documentary evidence of its creation and distribution may help your case.

‘When you create an original work like a painting or sculpture, copyright protects that work automatically. You do not need to register it, but proof is important when it comes to legal processes,’ he explained.

Vasudevan suggested that in a legal case, the judge may look at evidence to show that you created the work, when you created it, how far you got in the process, and who it was shared with.

‘So, a detailed draft sketch for a painting you have named and dated could be enough to protect your idea, because you have fixed that idea in a material form,’ he advised.

Vasudevan also explained that if artists can show evidence of who their work had been shared with prior to the IP infringement, this could help strengthen their case.

Especially in the early stages, keeping records of who you have shared your work with is a good idea.

Aditya Vasudevan, Arts Law solicitor.

‘If someone copies a substantial part of your draft sketch in their painting, evidence that you have shared your sketch with them may help you make a copyright infringement claim.’

Link to the rest at Arts Hub, and thanks to C. for the tip.

PG says that although there are some differences in the copyright laws in the UK and the US, the US laws have definitely influenced by Britain’s laws together with various international copyright conventions and treaties to which both the UK and the US are parties.

The United States Constitution provides the basis for the copyright laws that would later be enacted.

The Constitutional Convention convened in May of 1787. The final document was ratified in September 1787 and the delegates left for home. However, the Constitution required ratification by at least nine of the thirteen states before it became binding on all. Ratification took some time.

Delaware was the first state to ratify the Constitution in December, 1787. In June of 1788, New Hampshire was the 9th state to ratify the Constitution, which made it binding on all thirteen states by the terms of the document. In July, New York became the 11th state to ratify.

Beginning in December of 1988 and ending on January 10, 1789, the first Presidential Election was held. In February, 1789, the electors selected George Washington to be the first President of the United States.

In April, 1790, the Senate and House of Representatives convened for the first time.

Rhode Island was the 13th and final state to ratify the Constitution in May, 1790.

Article I of the Constitution establishes the Legislative Branch of the US government.
Section 8 of Article I (Enumerated Powers), Clause 8 (Intellectual Property) states:

Congress shall have the 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;

On May 31, 1790, the first copyright law was enacted by Congress under the Constitution. The new law was relatively limited in scope, protecting books, maps, and charts for only 14 years. These works were registered in the United States District Courts.

Suffice to say, the copyright law has been amended a number of times since it was first enacted. For example, generally, copyright protects a creative work for the life of the creator/author plus 70 years.

This lengthy period of protection is regarded by a sizeable group of copyright aficionados, including PG, as too long a period of time. Yes, it is a “limited time,” but so is one million years.

Shopify settles textbook publishers’ lawsuit over alleged piracy

From Reuters:

Shopify Inc has settled allegations by a group of major educational publishers that the Canadian e-commerce company enables piracy on its platform, according to a Tuesday filing in Virginia federal court.

The joint filing said Shopify had resolved the dispute with Macmillan Learning, Cengage Learning, Elsevier, McGraw Hill, and Pearson Education and asked the court to dismiss the case with prejudice, which means it cannot be refiled.

. . . .

The publishers sued Shopify last year, accusing it of ignoring repeat notices that its users sell pirated digital versions of their textbooks and other materials. The lawsuit said Shopify’s “blind eye” to piracy allows for copyright and trademark infringement on a “massive scale.”

The publishers asked the court for statutory damages of up to $150,000 per infringed copyright and $2 million for each counterfeited trademark, and listed more than 3,400 copyrights that were allegedly violated.

. . . .

Shopify responded in January that it addresses infringement notices “promptly and appropriately” and accused the publishers of trying to expand the “universe of actors subject to copyright damages.”

The company said the publishers sued because they failed to convince Congress to change the Digital Millennium Copyright Act, which protects internet hosts like Shopify from court claims if they take reasonable measures to address user infringement.

Link to the rest at Reuters

Why Getty Banned AI Images (For Now)

From Plagiarism Today:

Yesterday, Getty Images and iStock have announced that they are following in the footsteps of other art sites, including NewGrounds and Inkblot, in banning artwork generated by artificial intelligence (AI) from their service.

According to Getty’s announcement, “There are open questions with respect to the copyright of outputs from these models….” They further add that the move is to protect their customers from potential legal issues down the road.

Getty noted that this ban does not prevent the submission of 3D renders nor does it prevent the use of any digital editing tool, such as Photoshop or Illustrator.

It’s easy to look at this as another example of a battle line being draw with regards to AI-generated art. However, it’s a bit more complicated than that.

As divisive as AI-generated art is, the Getty ban is very different from the ones we discussed earlier this month. The reason is that Getty works different from sites like NewGrounds and their lack of comfort with AI stems almost entirely from legal concerns, not quantity or quality concerns.

To that end, it’s worth looking at why Getty, most likely, chose to ban AI images and how that could impact AI art moving forward.

Why Getty is Different

Sites like Newgrounds and Inkblot accept user-submitted content and host it on their servers. Because of this, they enjoy a great deal of protection under the Digital Millennium Copyright act (DMCA) should some of that content turn out to be infringing.

In short, under the DMCA, as long as they retain a DMCA agent and remove allegedly infringing content when properly notified, they will be protected under the law. 

However, Getty is in a different position. First off, they have editorial control over the images and then license those images to customers. This greatly increases their legal exposure as they could face repercussions both from directly from artists and their customers.

After all, part of Getty’s service they provide is that they promise customers that they hold the rights to the images they are licensing and, because of that, customers won’t face legal consequences for using Getty-licensed works.

But, with AI, that becomes a problem. All AI systems are trained on earlier works, and how much of those earlier works make into the images that it outputs depends entirely on the AI and the prompt it was given.

The fear is that the AI could “generate” art that is so similar to some of the work it was trained on that it could represent a copyright infringement. However, there’s simply no way for the human creator of the AI work, let alone Getty, to know if that’s a possibility with a given image.

As such, Getty has decided to avoid the issue altogether for now, banning AI art from its service.

Not Just Copyright

Though copyright gets the lion’s share of attention when it comes to legal issues AI art faces, there are other potential problems too.

For example, AI can be used to create images of real people in very unreal situations. We saw this recently with an AI app that swapped the face of actors in porn films with other people, creating the illusion that a different person was in the footage.

Though the AI that performed that was shuttered, there’s no reason other tools couldn’t do the exact same thing.

However, it isn’t just pornography. AI can generate images of individuals in a variety of compromising situations that never happened such as getting arrested, supporting/speaking hate speech and so forth.

All this raises issues of defamation. This is especially difficult for Getty, as many of their customers are news agencies, seeking photographs to accompany their reporting.

Getty is in the business of licensing images that are free of legal issues. In short, they’re selling legal certainty. AI images are the antithesis of that, generating not just countless images, but an equal number of legal unknowns that Getty is not prepared to take a chance on at this time.

Link to the rest at Plagiarism Today

The OP continues, noting that at least one other image-posting/licensing site has prohibited AI generated images.

PG suggests that litigation concerning copyright and ai images is almost certain to happen at some point in the not-too-distant future. If he had to guess about an early plaintiff, he would name Walt Disney, which has made and continues to make a huge amount of money from its cartoon characters.

If anyone sees/hears about an ai copyright case, PG would appreciate an alert through the Contact PG link at the top of the blog.

Tedious Anti-Copyright Stance of EFF is Not About Protecting Anyone

From The Illusion of More:

Welp (as the kids say), it looks like Katherine Trendacosta of the Electronic Frontier Foundation (EFF) found an old PowerPoint deck from 2012 and used it to write a new post ominously titled Hollywood’s Insistence on New Draconian Copyright Rules Is Not About Protecting Artists.

Typical of the EFF playbook, Trendacosta devotes an entire post maligning the motion picture industry rather than address the “rule” (the SMART Act), which she does not even mention until the final paragraph. At that point, the reader is meant to take her word for it that the proposed legislation is bad because—believe it or not—there is too much diversity and choice in the streaming market, and because film producers want to make money.

Ms. Trendacosta calls streaming a “hellscape” where consumers cannot find what they want and/or where shows and films are canceled or moved to different platforms. She writes, “It’s disingenuous for Hollywood’s lobbyists to claim that they need harsher copyright laws to protect artists when it’s the studios that are busy disappearing the creations of these artists.”

“Hellscape” is a bit dramatic as critiques go, given that market research indicates that 74% of consumers report being satisfied with streaming and that those numbers are currently trending upward. Of course, the anti-copyright playbook Trendacosta is using tells her to imply that when producers make market decisions to stop producing a given work, or to move a work from one channel to another, this is “disappearing” material that should be available in perpetuity. In fact, she inscrutably cites the “disappearance” of a film which is temporarily being made available in a new 4K cinema format and will return to streaming in a matter of months. Hellish, no?

Perhaps Trendacosta is unaware that we are enjoying a new golden age of filmed entertainment available on—or produced especially for—the private screen market. Streaming models have fostered a diverse range of projects that would never have been made, let alone been sustainable, in the narrower distribution paradigms pre-Netflix. But a reality of all this bounty is that more experimentation and risk-taking means that a higher volume of material will be canceled or redistributed more frequently as audiences respond to what gets made. That’s just the business of making entertainment media, and the EFF always acts as if the business is what makes efforts to mitigate piracy somehow dishonest or sinister.

Here, Trendacosta digs a little deeper into the big box of EFF’s toys and argues that ordinary tensions that arise among studios and talent—including strikes and financial disagreements—are evidence that the parties seeking remedies to piracy “don’t care about artists.” True to form, the folks at EFF pretend to care about artists by erecting a false dichotomy between the creators who work on projects and Hollywood, where “Hollywood” is a generic term to describe a monolith that does not exist.

. . . .

So, what is the supposedly “harsh” new piracy remedy that EFF is opposing this time?
The Strengthening Measures to Advance Rights Technologies (SMART) Act is a legislative response to the fact that for more than 25 years, Big Tech has refused to fulfil its side of the bargain struck with the adoption of Section 512 of the DMCA. Simply put, Section 512(i) requires online service providers to collaborate with copyright owners to develop standard technical measures (STM) to identify and expeditiously remove infringing content from internet platforms.

But not only did the development of STM never quite happen, the Googles and Facebooks of the world, who came after the OSPs that negotiated the DMCA, benefitted from mass infringement on their platforms because the DMCA shielded them from liability.

SMART seeks to address more than two decades of stonewalling by adding a new Section 514 to the DMCA that would create new remedies to confront Big Tech’s refusal to adopt appropriate and affordable technical measures to reduce online piracy. At the same time, its proposals would protect smaller and less well-resourced service providers by calling for a variety of tailored and practical technical measures to be developed under a multi-stakeholder process overseen by the Librarian of Congress.

This is what the EFF is calling “draconian”—a proposal to restore the intent of the DMCA as it was enacted in 1998. SMART is the first substantive response to Big Tech’s two big lies: 1) We can’t do it; and 2) We shouldn’t do it because it will chill speech. Those arguments have worn paper thin in recent years given the role these same companies have played in fostering the most toxic, Republic-shaking nonsense ever to be “freely spoken.” But credit where it’s due. At least Ms. Trendacosta didn’t say SOPA.

Link to the rest at The Illusion of More and thanks to C. for the tip.

The Technology And Legal Issues Behind Metaverse

From Above the Law:

When most people hear the phrase “virtual reality,“ they probably think of the clunky and uncomfortable headsets popular in the 1990s. However, recent advancements in VR technology have made it possible to create much more immersive experiences, in turn leading to a resurgence in interest in VR, and businesses are starting to take notice.

“Metaverse” is a term used to describe a virtual world created by combining elements of the real world with elements of the virtual one. It describes a type of augmented reality with the potential to change the way we interact with the world around us.

The technology behind the metaverse is still in its early stages, but it holds a lot of promise. One of the most promising aspects of the metaverse is its ability to create a more realistic and immersive experience for users.

Avatars

Avatars are one way that the metaverse fosters such immersion. Avatars are digital representations of people that can be used to interact with the virtual world. They can be customized to look like their users and can be equipped with a variety of different features.

Some avatars can even track users’ movements and replicate them in the virtual world, creating a more realistic experience; features like that make it possible for users to interact with each other more naturally.

Virtual Reality

The metaverse also makes use of virtual reality (VR) technology, simulating a computer-generated environment that can mimic real-world conditions. This allows for a more immersive experience, making users feel more like they are actually in a virtual world.

This technology is still in its early stages, but it has the potential to revolutionize how we navigate the world.

Augmented Reality

Augmented reality describes an enhanced version of the real world created by combining elements of both the virtual world and the real world. This level of immersion makes the VR experience feel more natural while taking advantage of the unique strengths of inhabiting a virtual world.

. . . .

Legal Issues

As the metaverse is still in its early stages, there are several legal issues that still need to be addressed. Below, you’ll find descriptions of some of the most important issues.

Gambling And Lottery Laws

The metaverse is often used for gambling and lottery games. A number of countries have laws prohibiting gambling, and these laws may apply to metaverse games. It is important to check the laws in your jurisdiction and consult a lawyer before participating in any metaverse gambling.

Privacy And Cybersecurity Laws

Since the metaverse is a decentralized platform, it is not subject to the same privacy and cybersecurity laws as traditional centralized platforms. This means metaverse users may have less protection against cyber-attacks and data breaches.

Some of the key questions to consider when it comes to privacy and cybersecurity include:

  • What personal information are you sharing on the metaverse?
  • Who has access to your personal information?
  • How is your personal information being used?
  • Is your personal information being shared with third parties?
  • What security measures are in place to protect your personal information?

A POTENTIALLY LARGE Marketplace

The metaverse’s decentralized nature means that there are no boundaries when it comes to buying and selling goods and services. This can be a great opportunity for businesses to reach new markets, but it also entails some risks, largely in the form of fraud and scams.

User Interactions

The way users interact with each other on the metaverse can have a significant impact on their experience. It is important to be aware of the risks associated with interacting with others on the metaverse.

Link to the rest at Above the Law

Absurd Automated Notices Illustrate Abuse of DMCA Takedown Process

From the Electronic Frontier Foundation:

Every month, TorrentFreak reports on absolutely ridiculous takedown notices issued by copyright holders to Internet service providers related to allegedly infringing content, using the process created by the Digital Millennium Copyright Act (DMCA). This month, TorrentFreak tore apart a series of takedown notices sent to Google by the German-based Total Wipes Music Group targeting, among other things, an EFF webpage describing how to use PGP for Mac OS X—a webpage within our Surveillance Self-Defense guide.

TorrentFreak aptly dubbed Total Wipes’ latest streak of takedown requests as “the world’s most idiotic copyright complaint.”

Indeed, the notice that cites the EFF webpage as an “allegedly infringing URL” purports to protect an album called “Cigarettes” on Spanish music label Mona Records. But not one of the seven allegedly infringing URLs listed in the notice even refers to the album, let alone in an infringing way. Another notice issued by Total Wipes to Google two days earlier purports to target pirates of the album “In To The Wild – Vol.7″ on music label Aborigeno Music. Again, not one of the 95 allegedly infringing URLs had anything to do with music, as TorrentFreak reported. The notice instead listed generic download pages for some of the world’s most popular online services, including Skype, Tor, Dropbox, LibreOffice, Python, and WhatsApp.

Total Wipes, which represents 800 international labels, stated in an email to Ars Technica that the recent notices were the result of a bug in their automated anti-piracy script. According to the email, “several technical servers [sic] problems” during the first week of February caused their automated system to send “hundreds” of DMCA notices “not related at all” to any of their copyrighted content.

But the bug is only part of the problem. Sending automated notices, without human review, is itself an abuse of the DMCA takedown process.

The Problem With Robots

According to the DMCA, a takedown notice must be based on a “good faith belief” that the targeted content’s use of copyrighted material is not authorized by law. The use of robots, without any human review, simply cannot satisfy this standard. Indeed, whether a use of copyrighted material constitutes a fair use protected by federal copyright law is often a question only a human can answer, after taking into account the context and purpose of the speech in question.

Total Wipes’ utterly laughable takedown notices illustrate the serious flaws in using robots to try to detect copyright violations. But even without bugs, robots cannot be relied upon to determine whether any given use of copyrighted material is lawful.

We have in the past criticized Warner Brothers Entertainment for using robots to issues thousands of infringement accusations, without any human review, based primarily on filenames and metadata rather than inspection of the files’ contents.  Like Warner Brothers, Total Wipes is similarly using robots to abuse the DMCA takedown process.

According to Google’s Transparency Report, between May 28, 2014 and February 22, 2015, Total Wipes sent Google 41,321 requests to remove webpages from Google’s search results, with a median of 1,214 requests per week. Across those requests, the music group requested that Google remove a total of 196,963 URLs. And according to the Chilling Effects database—which collects and analyzes legal complaints and requests for removal of online materials in an effort to help Internet users know their rights and understand the law—Total Wipes sent Google over 12,000 takedown requests in the last month alone.

Seeing ridiculous takedown requests from Total Wipes is nothing new. Back in August, TorrentFreak reported on a month-long DMCA notice-sending spree in which the music company targeted, among other things, sites that utilized the word “coffee.”

Due to the lack of human review, automated takedown notices often result in censorship of perfectly legal content. Although Google has the wherewithal to analyze takedown notices and reject those that are unwarranted, it doesn’t always do that. And many other sites automatically take down allegedly infringing content upon receipt of a notice, even when the notice is clearly bogus. This is because so long as a service provider complies with the DMCA’s notice and takedown procedure, it is protected from monetary liability based on the infringing activities of third parties. Of course, unwarranted takedown requests would not subject a service provider to monetary liability, but not all service providers undertake even the moderate level of effort that Google does to assess whether content complained of should actually be taken down.

The Need for Transparency

TorrentFreak was only able to discover Total Wipes’ ridiculous DMCA takedown notices thanks to Google’s Transparency Reportwhich publishes takedown requests—and data regarding takedown requests—made by copyright owners or their representatives to remove web pages from Google’s search results.

Link to the rest at the Electronic Frontier Foundation

Here’s a link to the Google Transparency Report. You’ll see a Content Removal section on the home page and links to several reports. At the Copyright and Google Search section, PG was interested to learn that Google has received take-down notices for 5,955,310,383 URLs.

Per Siteefy, there are a total of more than 1,139,467,659 websites in the world. Of that number, 17% (197,046,670 websites) are active. The 83% which are inactive, Siteefy says most “are parked domains or have a similar function.”

So, in round numbers, with about two hundred million active sites, Google has received take-down notices for about Six Trillion URLs.

Sounds like the take-down-notice industry is overkilling the internet.

With a bit of searching, PG found information about penalties for false copyright infringement claims here and, in the US, 17 U.S. Code § 512, sub-section (f) relating to limitations on liability relating to material online. Someone who is the subject of an improper take-down notice can receive damages plus attorneys fees incurred in defending the claim of copyright infringement.

Last month, the Ninth Circuit Court of Appeals (which has jurisdiction over California and its very large number of creative businesses with very valuable copyrights) held that copyright owners must determine whether the alleged violation of their copyrights is “fair use” under US Copyright law.

A California IP Law Firm wrote the following on its web site:

In an important decision affecting copyright owners, online hosts, and creators of user-generated content, the Ninth Circuit, on Monday, issued a bright line rule that copyright holders must consider the fair use doctrine before issuing takedown notices to remove otherwise infringing content in order to comply with the Digital Millennium Copyright Act (DMCA). The Court’s decision makes clear that a failure to do so can open the door to nominal monetary damages and attorneys’ fees under Section 512(f) of the DMCA for any material misrepresentations made (or improper procedures used) in the course of pulling content from service providers like YouTube.

See here for the rest of the commentary from Cowan, DeBaets, Abrahams & Sheppard LLP

Copyright As Censorship: Abuse Of The DMCA To Try To Delete Online News Is Rampant

From TechDirt:

Online platforms often give access to digital material that is under copyright. If any of that content is infringing, then potentially the platform would be liable as well as the person who uploaded it. Online companies naturally want to be immune to the consequences of any copyright infringement committed by their users. However, companies in the copyright industry also demand the ability to protect their copyright material.

To address this tension, the 1998 Digital Millennium Copyright Act (DMCA) provides online companies with a “safe harbor” in the US, provided they fulfil certain conditions, which includes taking down infringing material when they are made aware of its presence on their servers. This “notice and takedown” system allows the copyright industry to seek out material on sites, and send notices to the relevant Internet companies claiming that there is an infringement, and demanding that it should be taken down. The person who uploaded the material can make a counterclaim under the DMCA. This may trigger a lawsuit from the company claiming copyright. If it doesn’t, the material will be put back up.

Although the safe harbor approach is designed to provide a balanced solution to the requirements of both the copyright industry and the online service providers, it masks a deeper inequality that is typical of the copyright world. Takedown notices are generally sent by lawyers or specialists who carry out this operation all the time, often thousands of times a day, using automated systems. They know the details of the law. Under the DMCA they are only required to provide a statement that they have a “good faith belief” that the use of the copyright material is unauthorized.

The recipients of takedown notices are usually ordinary members of the public. They are unlikely to have any legal training, and yet must respond to a formal legal notification if they wish to make a counterclaim. In addition, their counterclaim must include contact information – probably the last thing that an individual wishes to hand over to a company threatening them. Finally, and most problematically, the counterclaim must include a statement “under penalty of perjury” that the material was taken down by mistake. This is in contrast to the much weaker “good faith belief” that the original takedown notice requires from the notifier. Many will quail at the thought that they risk being convicted of perjury. The end result is that most people will simply accept that their material is removed, even if it was legal, for example under fair use.

This unbalanced nature of the system makes it ripe for fraud, whereby people falsely claim to be the owner of copyright material in order to get it removed from a Web site. Among the millions of removal requests stored on the Lumen database, Shreya Tewari – a Berkman Klein Center Research Fellow on the Lumen project – found nearly 34,000 takedown notices that “appear to be attempts to misuse the DMCA notice-and-takedown process”:

The notices I found use the “back-dated article” technique. With this technique, the wrongful notice sender (or copier) creates a copy of a ‘true original’ article and back-dates it, creating a ‘fake original’ article (an article that is a copy of the true original) that at first glance appears to have been published prior to the true original. Then, based on the claim that this back-dated article is the ‘original’, the copiers send a DMCA to the relevant Online Service Providers, alleging that the true original is the copied or ‘infringing’ article and that that the copied article is the original article — requesting the takedown of the true original article. The wrongful notice sender then removes the fake original url after sending the DMCA request, likely in order to ensure that the article does not stay online in any form. If the takedown notice is successful, this means the disappearance from the internet of information that is most likely to be legitimate speech.

The post on the Lumen database blog has some interesting statistics about such takedown notices: 34,000 removal requests were sent by just 30 different notice senders, targeting 550 domain names, mostly online news sites. The material targeted generally concerned allegations of “misconduct, corruption, sexual harassment and other allegations against the same set of individuals”. It looks like the DMCA’s powerful takedown provision was being used to wipe embarrassing news articles from sites around the world.

An entire business sector, called “reputation management”, has sprung up to offer this kind of service. Specialists use DMCA takedown notices as a way of intimidating sites, and persuading them to remove material that is inconvenient for the reputation management company’s client in some way.

Link to the rest at TechDirt

How to Use Images of Real People Without Violating Privacy and Publicity Rights

From Helen Sedwick:

Suppose you find the perfect image for your book cover on the internet—a plucky redhead with a perfect pout. Even better, the photo is available under a Creative Commons attribution-only license that permits commercial use. What a money saver!

But wait. Do you have a release from the plucky redhead? Do you need one?

Or you attend a writers’ conference and take photos of a famous author speaking at the podium. Later, you capture that same author when he is sloppy-faced and drunk at a large reception. Later still, you snap a photo of him punching a writing rival in the restroom. Can you post those images on Pinterest and Facebook without risking a lawsuit?

Writers should be nervous when incorporating images showing identifiable people in their blogs, books, or social media postings. Violating privacy and publicity rights is a potentially costly mistake.

But you don’t want to walk around with blank releases in your pocket. And what if the photos show hundreds of faces? Do you need releases from every recognizable person? Without releases, are you limited to posting photos of cute puppies and selfies?

Using Images with Identifiable People

The rules about using images with recognizable people come down to two considerations:

  • Did the person in the photo have a reasonable expectation of privacy?
  • How is the image being used?

You need to consider both. Passing one test is not enough.

Did the person has a reasonable expectation of privacy?

Generally, people do not have a reasonable expectation of privacy for anything they do in public. The exception is a performance or meeting where you are informed that taking photographs is prohibited. In those situations, you make an implied promise to honor the no-photo request as a condition to attending the performance or meeting.

If a photo was taken in a private setting, such as a home or office, you should assume you need permission before you post or publish any image showing identifiable people. Contact everyone recognizable in the photo and ask for a release. I provide a sample below.

So for the image of the redhead, look closely to see if the photo was taken in a public place? Since it is often impossible to know, I recommend against using any Creative Commons image showing recognizable faces unless it was obviously taken in a public place.

Regarding the famous author, you may assume the author had no expectation of privacy when speaking at the podium and getting drunk at the reception, since both were in public.

. . . .

Is your use commercial?

Do not use an image of a recognizable person for advertising or promotional purposes ever, even if it was taken in a public setting, is available under a Creative Commons license, or is in the public domain, unless you have written permission. Using anyone’s image for commercial purposes violates that person’s right to publicity. You could be liable for damages, including punitive damages. In some states, these rights survive for up to 75 years after a person’s death.

The line between commercial and non-commercial is fuzzy. Using an image on a book cover, t-shirts or other merchandise is commercial, but posting it on a blog or social media site that is informative and editorial is probably not. Use common sense. How would you feel if you were in the photo?

To return to our hypothetical famous author, you may post an image of the two of you shaking hands or sharing a beer, but don’t say or imply that the author gave your book glowing reviews without written consent. I would not put those images on the back of your book without consent; that’s too closely related to selling a product.

As for the plucky redhead, contact the original photographer and ask whether a release was obtained or is possible. If you use the image on your book cover without a release, it could cost you plenty.

Will your use imply any advocacy or endorsement?

Even if the use is not commercial, do not use a person’s likeness to imply that the person advocates or supports a certain political, religious, charitable or other position without a clear, written release. Again, this violates privacy and publicity rights.

. . . .

How high is the M.E. factor?

As an attorney, I am often asked, “Can someone sue me?” Unfortunately, just about anyone may sue you, even if the suit is frivolous. My rule of thumb about litigation risk is the M.E. Factor: money multiplied by emotion. If a lot of money is involved, then a lawsuit is likely even if there is little emotion involved. On the other hand, if someone is angry, offended, or threatened, then they are likely to sue regardless of a small financial stake. If you get someone peeved enough, you may awake one morning to a process server banging on your door.

Link to the rest at Helen Sedwick

PG says it’s always best to obtain the person’s permission. In writing and signed by the person.

If you’re obtaining an image from an established stock photo seller, you should be safer, but make certain that you’re obtaining the right to use the image for commercial purposes.

If you’re picking up an image online, even if the website says the image is offered under a Creative Commons License that permits commercial use (some Creative Commons licenses do not include permission for commercial use), you’re still not necessarily in the clear.

Anyone can post an image they find online and say the image is offered under a Creative Commons license. However, if the creator of the original image did not grant a Creative Commons license to the image to whomever posted it online, you’re still looking at a potential copyright violation.

The safest place to obtain stock photos for commercial use is a well-established and large stock photo vendor. Adobe is one prominent example.

Trade bodies warn new data mining copyright exception will have ‘severe negative impact’

From The Bookseller:

Trade bodies including the Publishers Association have warned the government that its decision to introduce a new copyright exception will “seriously undermine the UK’s intellectual property framework”. 

Text and data mining encompasses techniques used for computer-based analysis of large amounts of data, and is often used in AI. The exception, announced in June following a consultation, would allow any entity, based anywhere in the world, to mine copyrighted text and data for free, for commercial use. 

In a letter addressed to secretary of state Kwasi Kwarteng, signatories including Publishers’ Licensing Services, the Association of Learned and Professional Society Publishers and the Independent Publishers Guild warn “the government’s decision to create a broad copyright exception will seriously undermine the UK’s intellectual property framework, conflict with international law, and… unintentionally provide international rightsholders and non-UK based research organisations with a competitive advantage.”

It continues that the proposed exception would “have a severe negative impact on UK rightsholders” and create an unfairness that benefits those using content for text and data mining.

“The immediate consequences of the exception will be that, without the ability to licence and receive payment for the use of their data and content, certain businesses will have no choice but to exit the UK market or apply paywalls where access to content is currently free,” it says. 

“The UK’s world-leading copyright framework is fundamental to the success of the UK publishing industry, as well as the wider creative economy. It empowers people and businesses from across the country to invest in and create a wealth of different products, from novels to academic journals, from databases to newspapers.”

Link to the rest at The Bookseller

That Was My Idea! How Hollywood Is Avoiding Story Theft Claims

From The Hollywood Reporter:

A ragtag group of misfits, each with their own unique skill, bands together to pull off a high-stakes con. Depending on your preferences and streaming subscriptions, the film that comes to mind could be the 1955 classic Rififi, this year’s DreamWorks animated comedy The Bad Guys or any of the dozens of other heist movies like The StingReservoir DogsOcean’s ElevenNow You See Me and Baby Driver that were released in between.

Tropes aren’t specific to the heist genre, and by definition they’re not uncommon. Yet, that kind of similarity is often enough to spark an idea theft claim — and in the peak content era, there’s more opportunity than ever to file such suits. Ideas are generally not protectable absent an agreement, so the cases usually manifest as claims for copyright infringement (“I sent an agent my script and another writer copied my particular expression of the idea”) or breach of contract (“I had a pitch meeting and a producer used my idea but didn’t pay me”).

“From a contract perspective, the question is whether or not an agreement is reached,” says Stephen Doniger of Doniger Burroughs, a litigator who often represents plaintiffs in intellectual property cases. “People pitch things all the time in hopes someone thinks they’re brilliant and wants to work with them. That doesn’t create an automatic agreement for payment if they use that idea.”

Entertainment litigator Bryan Sullivan of Early Sullivan reiterates that the idea has to be pitched to someone with the intention of them buying it. “I think that’s the number one misunderstood aspect of this claim,” he says. “If you pitched it to them looking for feedback, like ‘Hey, what do you think of this idea,’ you don’t have any right to sue them if they go off and are hugely successful with the expression of the idea.”

Copyright claims aren’t any easier, as plaintiffs must prove the projects are substantially similar and that the defendant had access to their work. With the ubiquity of social media, access looks different than it did a decade ago. Instead of mailing a treatment to an agency or production company, an aspiring writer can send an idea through a direct message or via email.

TV writer-producer (and former THR editor) Marc Bernardin (Star Trek: PicardCastle Rock) says he politely shuts down any followers who ask him to hear a pitch. “Nobody is trying to be a dick,” he says. “Everybody is trying to protect themselves from litigation and protect aspirants from disappointment. Blowing up somebody’s DMs with PDFs of scripts is not going to do anybody any favors.”

Doing people favors is actually what sparks many idea theft disputes, according to litigator Greg Korn of Kinsella Weitzman, who regularly represents clients defending against these claims. “Someone knows an agent and asks, ‘Can you look at this screenplay by a friend of mine?’ Then later that person sees something that has come out with vague similarities and they fantasize that there must have been some Machiavellian scheme to exploit their idea without them,” says Korn. “It feels like the ultimate injustice. It becomes a matter of principle and pride even when it looks like [a lawsuit] will go badly, and frequently it does.”

Talent lawyer Matt Johnson of JSSK, who works with some of the industry’s most prolific creators, is dealing with two active claims. “One was a blind submission to the friend of my client, and the other sent it to the agency that the person is represented by,” he says. “A good half the time these claims come from someone who’s not connected who’s trying to create a nexus. If it’s not from a trusted source, the number one piece of advice is not to open it. You can prove something wasn’t opened digitally. If something is received in the mail, the same philosophy applies. Return it, unopened, and document it.”

The attorneys consulted by THR suggest that industry reps should follow similar protocol. “I get five to ten submissions a day,” notes talent lawyer Linda Lichter of Lichter Grossman. “They don’t send me the script. They say, ‘I have a great story for client so-and-so,’ and they describe it and ask me to pass it along. I used to reply to every one and say, ‘We don’t accept submissions,’ but now they get sent to spam. It’s too much. Of course, I worry that if they’ve sent it to me and my client happens to do something similar, they’ll say, ‘I gave it to the lawyer, so the client had access.’”

The most recent idea theft case to make headlines came from a self-described aspiring writer and performer who claims ABC’s Emmy-nominated Abbott Elementary is a rip-off of This School Year, her mockumentary-style comedy set in an inner-city school. In a July 12 lawsuit, Christine Davis says she pitched the show to two execs at Blue Park Productions, an incubator for Black female creators, who she believes then took her idea to Hulu. There’s no further detail in the complaint, other than an allusion to connections at the streamer, but Blue Park has no ties to Abbott Elementary.

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

Before he was a lawyer and when he started working for a large advertising agency, PG recalls being briefed by an agency lawyer with a couple of other new hires about how to handle unsolicited ideas.

As PG remembers it, the drill if an employee of the agency received an unsolicited idea for a commercial or advertisement, she/he was instructed to stop reading it as soon as they discovered what it was, draw a line where they stopped reading, labeling the line with something like, “I stopped reading here,” put it into an envelope and send it to the agency’s attorney.

For the record, PG has never received such a letter, email, etc., and doubts he qualifies as a juicy target for anyone to sue these days.

If Mrs. PG or a friend of PG’s received such a letter, PG would be inclined to follow the general pattern described in the OP, send it back with a letter or email saying you don’t accept ideas from anyone, send the original back and keep a copy of your letter or email somewhere (but this is not legal advice).

AI-Assisted Inventions Could Spur New Patent Litigation Wave

From Bloomberg Law:

The amount of human involvement needed to secure a patent when artificial intelligence is used to create an invention remains up in the air after a Federal Circuit decision shutting down the possibility of solo AI inventorship.

Patent attorneys expect more litigation on the use of AI in inventions to follow the US Court of Appeals for the Federal Circuit’s ruling last week that artificial intelligence systems can’t be the sole inventors on patents. The three-judge panel noted that the decision was confined to the question of whether computer scientist Stephen Thaler’s creativity machine could be the only inventor listed on a patent application, not whether inventions “made with the assistance of AI” are eligible for patent protection, according to the precedential opinion.

The opinion left unresolved how some provisions of the Patent Act should be interpreted when AI is involved and what constitutes sufficient human contribution for the person to qualify as an inventor, attorneys said. As the US Patent and Trademark Office grants such patents, courts will start having to grapple with new legal challenges surrounding AI inventions across industries.

. . . .

Thaler’s loss last week marked his latest setback in his quest to convince jurisdictions around the world that his creativity machine called DABUS is the rightful inventor on two patent applications. The Federal Circuit sided with courts in Australia and Europe that found only humans can be inventors under existing statutes. Thaler said he plans to appeal the Federal Circuit’s decision to the US Supreme Court.

It would be up to Congress to change the Patent Act to allow for non-human inventors, but until then, there’s “no ambiguity,” Judge Leonard P. Stark wrote in the opinion.

More challenges to patents created with the help of AI will follow, said Susan Krumplitsch, a partner at DLA Piper, though they likely won’t center on whether the AI should be allowed to be the inventor, as Thaler argued. When inventions rely on machine learning and neural networks, it’s not clear how important the person was in the creation of the invention, she said.

“These issues haven’t been explored,” Krumplitsch said. “I would expect in the coming years, as these patents come up, and we see them in court, and they’re pulled apart, we’ll see more of a focus on who was doing what, and was the human contribution enough to be an inventor contribution.”

If the artificial intelligence system did all or most of the work, the humans involved in the inventions may not be able to take the oath required by the patent office that they are the rightful inventors, said Christopher S. Schultz, a partner at Burns & Levinson LLP in Boston.

Link to the rest at Bloomberg Law

As PG mentioned in earlier posts, it’s only a matter of time until the AI/author copyright question arises as well.

Prolific romantic fiction writer exposed as a plagiarist

From The Guardian:

A prolific, self-published romantic fiction novelist has been exposed as a plagiarist after a reader spotted that she had switched the gender in a tale of romantic suspense to turn it into a gay love story.

Becky McGraw, a New York Times bestselling writer, was alerted by one of her readers about the similarities between her own novel My Kind of Trouble, in which Cassie Bellamy falls for bad boy Luke Matthews when she returns to her hometown of Bowie, Texas, and Laura Harner’s Coming Home Texas, in which Brandon Masters falls for bad boy Joe Martinez when he returns to his hometown of Goldview, Texas.

“She emailed to ask if I’d started writing gay romance under a pen name,” said McGraw, whose editor subsequently reviewed both books, and highlighted the similarities. These have also been extensively detailed online by novelist Jenny Trout; Trout has provided screenshots and extracts from both books, and writes that “Harner’s clever trick here was to pick a book that was not M/M [male/male], but M/F contemporary romance. As far as readers go, there isn’t a lot of overlap between the two genres.”

McGraw writes: “Since she’d gotten the call from Imelda, the closest thing to a mother that Cassie had known since her own mother died when she was ten, Cassie had been in that mode. Once she decided she needed to come back, the memories she thought she buried ten years ago would not leave her alone. Thoughts of Luke Matthews would not leave her alone.”

Harner, whose Amazon profile says she has written more than 50 novels and sold almost half a million books, writes: “Since he’d gotten the call from Isabella – the closest thing to a mother that he’d known since his own mom died when he was nine – Brandon seemed to be stuck on a never ending sentimental highway. Once he decided he needed to come back, the memories he thought he buried long ago wouldn’t leave him alone. Thoughts of Joe Martinez won’t leave me alone.”

“Her book was almost a word-for-word, scene-for-scene duplication of my book, except the characters’ names had been changed, and short M/M love scenes had been inserted,” said McGraw. “The only scene she didn’t include was the epilogue, which couldn’t be altered to an M/M scene. It involved the heroine in labour and the hero having sympathetic labour pains.”

McGraw is intending to take legal action against Harner, who has pulled the book from retailers since McGraw first posted about the situation on Facebook, along with her Deuce Coop series, which was revealed to be similar to Opal Carew’s Riding Steele novel, again a straight romance turned into a gay one. The similarities were laid out in a second blog post by Trout, who wrote that “it’s almost impressive how much Harner was still able to plagiarise from Carew here, given the fact that the characters are of mostly different physical and clothing descriptions”.

Responding to the Guardian in a statement, Harner said she realised she had “made mistakes”. “I own them, and I will deal with the consequences. In transforming two M/F romance stories into an M/M genre, it appears that I may have crossed the line and violated my own code of ethics,” she wrote.

“For those who know me best, you know that responsibility for my actions begins and ends with me. I will also add there are some personal and professional issues I’ve had to deal with in the last year that have stretched me in ways that haven’t always been good for me. I write about certain concerns related to military service for a reason; however, I am not offering that as an excuse. I just think whenever someone acts so out of character, it’s helpful to ask why.”

Harner added that she was “working to address concerns raised by two authors who have accused me of plagiarism”, saying that she would provide a more complete statement later this week. “Until then, please do not judge me too harshly.”

McGraw, however, urged other romantic fiction novelists to check Harner’s backlist to see if they recognise their work. “Considering that Laura Harner, AKA LE Harner, has ‘written’ in seven or eight genres in five years, started series in those genres, and published 75 books so far in that span of time, I’d say everyone in every genre needs to be concerned, both indie and traditionally published authors,” she said.

Link to the rest at The Guardian

The Female Quixote and Me

From Publishers Weekly:

Two days before the publication of my comic novel, The Seductive Lady Vanessa of Manhattanshire, I learned the setup driving the entire book had already been used by another writer—270 years ago. That meant my book, which recasts Don Quixote as a hoop-skirted, romance-novel-besotted woman questing for love in contemporary New York, was not quite as original an act of plagiarism as I had thought.

My delusion of literary innovation was shattered by Stefan Kutzenberger, an Austrian novelist and fellow Cervantes enthusiast visiting New York on a government-backed book tour. We were having a drink with a mutual friend when Stefan asked, “Did you ever read Charlotte Lennox?”

“No. Who is she?”

“She wrote a book called The Female Quixote.”

“Seriously?” I asked, breaking out my cellphone.

“Yes. Henry Fielding was a big fan.”

“1752!” I said, reading the pub date. “That’s amazing.”

I tried to remain calm. But the idea that Lennox had already deployed a similar Quixote clone left me rattled. Nobody wants to spend years on a book only to find out it has an ancient twin.

“Damn!” I said, laughing and complaining. “I can’t believe it.”

But really, it was easy to believe. Days earlier, when a friend asked how I’d hit on the idea for Lady Vanessa, I said, “I’m a big Don Quixote fan. Given romance fiction’s popularity, it just seemed like an obvious and interesting idea to explore. I’m surprised no one ever thought of it before.”

Famous last words.

I went home feeling curious and competitive. I read about my new but long-dead rival. Samuel Johnson was a friend and fan of Lennox. An essay on the web confirmed Henry Fielding “printed a very favourable review in the Covent Garden Journal, saying it was better than Don Quixote.”

Whoa. Quite a throw-down. I stopped reading about Lennox and downloaded The Female Quixote, or, The Adventures of Arabella.

After a cursory inspection of the novel, I can report it is funny but, unfortunately, very wordy. It is not “better” than the original. Most important to me, Arabella is very different from my Lady Vee. She is much younger: 17, not 48. She lives in a castle, not an Upper West Side co-op. She is paranoid about men ravishing her, whereas Lady Vanessa would like to be ravished. Arabella’s madness, at first blush, also lacks the over-the-top buffoonery of Don Quixote, which I hoped to emulate with Lady Vee.

Despite the differences, it was clear we were inspired by the same source material, 270 years apart. My mind raced. How had I missed The Female Quixote’s existence? Should I be more bruised or amused by my innocent ignorance, or by the fact that it took an Austrian novelist to enlighten me? And how had all the agents, editors, and blurbers who read Lady Vanessa failed to name-check The Female Quixote? The Cervantes scholar who’d raved about my book didn’t even mention it.

In the clear light of the next day, I realized I had it all wrong. It didn’t matter that I’d never heard of The Female Quixote. Charlotte Lennox wasn’t a rival; she was an ally! We loved the same book. Don Quixote inspired us to do the same thing in radically different time periods: recontextualize, reimagine, and reinvent.

I wrote Lady Vanessa because I love Don Quixote. I hoped to revisit the ideas Cervantes toyed with four centuries ago: censorship, the lines between fantasy and reality, literary clichés, and the power of books. I also hoped it would be entertaining.

I can’t speak for whatever drove Lennox, but we aren’t alone. The saints at Wikipedia have a list of Quixote-influenced books, amassing 27 entries. Some of literature’s greatest talents have spilled ink in tribute to the La Mancha madman: Flaubert, Dostoyevsky, Borges, and Rushdie. Lennox is the second entry.

Link to the rest at Publishers Weekly

PG notes that ideas (like a female Don Quixote) are not protected by copyright law. Only the expression of ideas is protected.

Plagiarism may or may not be a violation of copyright law, depending on the extent and manner in which another’s work is used by a subsequent author.

From The Copyright Alliance:

There are many differences between plagiarism and copyright infringement, yet it can be easy to confuse these concepts. While both plagiarism and copyright infringement can be characterized as the improper use of someone else’s work, they are distinctly different improper uses of someone else’s work. The biggest difference is that copyright infringement is illegal, while plagiarism is not. This blog post discusses additional differences between the two and provides examples of each type of improper use.

What is Plagiarism?

Plagiarism occurs when a party attempts to pass someone else’s work or ideas off as their own, without properly giving credit to the original source. Plagiarism, while not against the law, is an ethical construct most commonly enforced by academic intuitions. Consequences of academic plagiarism may range from receiving a failing grade all the way to the revocation of a degree.

Plagiarism is not just limited to the academic setting. In the professional world, plagiarism has its own set of consequences, which may include sullying the plagiarizer’s reputation and in some instances termination and difficulty finding new employment. For example, in 2014 CNN fired a London-based news editor for repeated plagiarism offenses over a six month period, involving a total of 128 separate instances of plagiarism, mostly taken from Reuters.

Copyright, at its core, is the set of rights belonging to the creator or owner of a work of authorship that is original and fixed in a tangible medium of expression. This set of rights automatically vests to someone who creates an original work of authorship like a song, literary work, movie, or photograph. These rights allow a copyright owner to control who, when, where, and how their work is used, such as through the right to reproduce the work, to prepare derivative works, to distribute copies, and to perform and display the work publicly.

Copyright infringement occurs when a party takes an action that implicates one or more of the rights listed above without authorization from the copyright owner or an applicable exception or limitation in the copyright law, such as fair use. There can be significant legal consequences for copyright infringement, including injunctions, monetary damages, and in extreme instances criminal penalties.

. . . .

Plagiarism But Not Copyright Infringement: A student copies a few sentences of a 20-page book illustrating and describing species of birds to use in article on evolution submitted for her high school newspaper but fails to provide a citation or footnote explaining that the information came from the book. This student may have committed plagiarism by not properly attributing the information and making it seem like the information originated from the student. However, the student will most likely not be found to have committed copyright infringement because such an inconsequential amount was used in an educational setting in a manner that is unlikely to harm the authors market for the work that the use is likely a fair use.

Link to the rest at The Copyright Alliance

Don’t count on agents and publishers to polish your diamond in the rough

From Nathan Bransford:

Some authors have heard that agents engage in pre-submission editing prior to submitting to publishers. Failing that, they know that editing is literally in an editor’s job title.

So if you just have a great idea for a book, an agent and editor will help you polish it up into something publishable, right?

Don’t count on it.

Yes, sure. Some agents really do offer pre-submission editing. But typically these are situations where agents are taking a book project that’s nearly there and helping it that last extra mile across the finish line. They’re taking books that are already in the 99.5th percentile and getting them to the 99.9th. They’re not taking a hot mess and turning it into gold.

Ideas are highly, highly overrated. Execution is what matters. Your writing needs to be competent at worst, ideally much more than that. However you feel about [insert traditionally published bestseller with a reputation for being poorly written], it is way better than the vast majority of what goes unpublished.

. . . .

Unless you are writing on a highly topical nonfiction project with a very specific bombshell, current events don’t tend to matter much in the book world, particularly for fiction. It doesn’t pay to rush.

Link to the rest at Nathan Bransford

PG worked for a large advertising agency a long time ago. Shortly after he started work, he had a visit from one of the agency’s attorneys to discuss what to do if he received a letter with an idea for a commercial or other advertisement.

Basically, when PG realized that he was receiving an unsolicited idea from outside the agency, he was to immediately stop reading the letter and mark the place where he stopped reading. He was then to walk the letter over to the legal department and hand it to someone who would draft and appropriate response to accompany the returned idea letter back to the sender.

U.S. appeals court okays Starz copyright claims against Amazon’s MGM

From Reuters:

MGM Studios’ television division on Thursday lost a bid at the 9th U.S. Circuit Court of Appeals to escape hundreds of copyright claims by Starz Entertainment LLC over a licensing agreement gone sour.

The appeals court said that TV network Starz could pursue damages for several instances of alleged infringement that occurred years before the case began.

MGM said in a statement that it was disappointed in the decision, which it said conflicts with rulings by the U.S. Supreme Court and the 2nd U.S. Circuit Court of Appeals. The company said it is considering “further appellate options” and looks forward to defending against the claims on their merits.

. . . .

Starz signed agreements with MGM in 2013 and 2015 to pay nearly $70 million for the exclusive right to show hundreds of MGM TV shows and movies, including the James Bond film series, “Mad Max” and “The Terminator.”

A Starz employee learned in 2019 that MGM’s film “Bill & Ted’s Excellent Adventure” was available to stream on Amazon’s platform during the exclusivity period. MGM later told Starz that it had also licensed many other shows and movies to other services.

Amazon bought MGM for $8.5 billion earlier this year.

Starz sued MGM in Los Angeles federal court in 2020 for violating their contracts and its copyright interests in the licensed works.

MGM asked the court to dismiss 381 of Starz’s 1,020 copyright claims, arguing they involved licenses that expired more than three years before Starz sued. According to MGM, the Supreme Court in a 2014 case imposed a “strict bar” to infringement damages from more than three years before a lawsuit is filed.

The 9th Circuit on Thursday agreed with the district court that the bar does not apply when a plaintiff like Starz could not have reasonably been aware of the infringement when it happened.

“Adopting a damages bar would mean that a copyright plaintiff who, through no fault of its own, discovers an act of infringement more than three years after the infringement occurred would be out of luck,” U.S. Circuit Judge Kim Wardlaw wrote for a three-judge panel. “Such a harsh rule would distort the tenor of the statute.”

Wardlaw also said the rule would “incentivize” infringement, noting that modern technology has made it “easier to commit, harder to detect, and tougher to litigate.”

Link to the rest at Reuters

PG included this as a second story about this litigation because The Authors Guild story was primarily focused on patting itself on the back because the 9th Circuit quoted parts of the Guild’s brief. Evidently the person who wrote the AG article didn’t understand that appellate courts quote from briefs filed with the court on a regular basis.

PG hasn’t dug into the trial material in the 9th Circuit case, but in prior cases, the Supremes have declined to follow the 9th Circuit’s reasoning. The 9th Circuit has been known as the most-frequently-reversed of the Circuits, but its judges continue to go off on legal frolics hither and yon on a regular basis and seems to be immune to embarrassment for its behavior.

Ninth Circuit Affirms in Favor of Creators in Starz v. MGM Copyright Infringement Suit

From The Authors Guild:

The Ninth Circuit Court of Appeals today ruled in Starz v. MGM that the plaintiff, Starz, retained the right to sue violators of their copyrights even if more than three years had passed since the infringements occurred.

Starz filed a suit against MGM when the latter licensed rights to certain films and television shows in its library to third parties even though Starz still held those rights based on an earlier licensing agreement with MGM. MGM claimed that, for some of those infringements, more than three years had elapsed between when the infringements occurred and when Starz discovered them, and, therefore, Starz was barred from collecting damages. A federal district court in California disagreed and denied MGM’s motion to dismiss, drawing on the “discovery rule,” which “operates as an exception to the general principle that damages are only recoverable for infringing acts within three years prior to filing suit.”  

The Ninth Circuit concurred. In her decision, Judge Kim McLane Wardlow cited directly from an amicus brief filed by the Authors Guild that highlighted why creators may not always know right away that copyright infringement occurred.

This ruling impacts not only large entertainment companies but also book authors, filmmakers, screenwriters and other individual artists. These individuals rarely have the training or resources to quickly identify when someone may have infringed on their copyright and may only become aware of it when someone points it out to them or after the situation has already gotten out of hand, such as in the case of e-book piracy rings that sell illegal copies of books to legitimate book buyers, depriving the copyright holder of income.

“We’re pleased that the court recognized that creators often don’t have the time or the ability to monitor the marketplace in order to locate copyright infringements in a speedy manner, especially where, as the decision states, ‘the infringer knows of and controls the infringing acts and the copyright holder has little means of discovering those acts,’” said Cheryl L. Davis, General Counsel for the Authors Guild, 

Link to the rest at The Authors Guild

Copyright: American Publishers File for Summary Judgment Against the Internet Archive

From Publishing Perspectives:

[F]our primary member-publishers of the Association of American Publishers have filed a motion for judgment against the Internet Archive in this case that has international implications because of the reach of Internet connectivity. A “summary judgment” is a way for one party to win a case without a trial.

As Publishing Perspectives readers will recognize, this is a stage in two years of litigation that began in early June 2020, when the publishers, three of them among the Big Five, filed a copyright infringement lawsuit against the Internet Archive, in the US District Court for the Southern District of New York.

Those plaintiff-publishers:

  • Hachette Book Group
  • HarperCollins Publishers
  • John Wiley & Sons
  • Penguin Random House

The 2020 lawsuit asked the court to enjoin the San Francisco-based Internet Archive’s “scanning, public display, and distribution of entire literary works”—which it has offered to the international public through what the association terms “global-facing businesses” branded the “Open Library” and “National Emergency Library.”

….

As you’ll remember, the Internet Archive responded by claiming that its operations in the Open Library and shorter-lived National Emergency Library were couched in a concept called Controlled Digital Lending that it asserted would protect its use of copyrighted content without payment or permission as a form of “fair use,” in some cultures called “fair dealing.”

A concise explication of the publishers’ complaint is found in the court filing’s preliminary statement, which says, in part:

“Masquerading as a not-for-profit library, Internet Archive digitizes in-copyright print books on an industrial scale and distributes full-text digital bootlegs for free. Internet Archive has amassed a collection of more than 3 million unauthorized in-copyright ebooks—including more than 33,000 of the publishers’ [and their authors’] commercially available titles—without obtaining licenses to do so or paying the rights holders a cent for exploiting their works.

“Anybody in the world with an Internet connection can instantaneously access these stolen works via the Internet Archive’s interrelated archive.org and openlibrary.org Web sites …

“Having scaled up its operations since the complaint was filed, Internet Archive now ‘lends’ bootleg ebooks to users approximately 25 million times a year.”

In her comment on the day’s request for summary judgment, Maria A. Pallante, the association’s president and CEO, says, “Outrageously, the Internet Archive has wrapped its large-scale infringement enterprise in a cloak of public service, but that posture is an affront to the most basic principles of copyright law.

“We hope and expect that the court will uphold established legal precedent, including by recognizing that formats are neither fungible nor free for the taking, but rather a key means by which authors and publishers exercise their copyright interests, develop new markets, and contribute to public progress.”

. . . .

What’s more, the publishers assert, “The defendant’s activities are part of a larger commercial enterprise that not only provides access to books but also adds to its bottom line. Between 2011 and 2020, the Internet Archive made approximately US$30 million from libraries for scanning books in their

collections.”

Indeed, the filing goes a long way to take apart various elements of the Internet Archive’s arguments.

  • For example, it points out that the Archive, under the direction of Brewster Kahle, has said that its site helps rural populations, but “Internet Archive does not even track rural readers and ignores the considerable geographic reach of authorized library ebooks.”
  • The filing also produces some interesting observations, reporting that “three of the [plaintiff-] publishers estimate that between 35 percent [and] 50 percent of Americans who read an ebook use free library copies, rather than purchasing a commercial ebook. Internet Archive’s ebooks are no more ‘efficient’ than the authorized ebooks that libraries license—except the authorized ebooks generate revenue for authors and publishers.”

. . . .

There are caveats, as well. Here’s one: “To be clear, this lawsuit does not intend to foreclose the possibility that the unlicensed use of a particular work may be fair use in extenuating circumstances, such as the digital preservation or occasional e-loan of a clearly orphaned work.

“Further, the Association of American Publishers has long supported legislative modernization of Section 108 of the Copyright Act regarding library digitization to address preservation needs. But Internet Archive has gone far beyond what any calibrated exception might allow by appropriating every in-copyright work it can find without license or payment.”

Link to the rest at Publishing Perspectives

A Photographer Is Suing Tattoo Artist Kat Von D After She Inked His Portrait of Miles Davis on a Friend’s Body

From ArtNet:

If you copyright a work of art, does that prevent other people from turning that image into a tattoo? That’s the question set to be decided by a jury in California federal court, where the case of photographer Jeffrey B. Sedlik versus celebrity tattoo artist Kat Von D is due to go to trial.

“It is, as far as I know, the first case in which a tattoo artist has been sued for an allegedly copyrighted image on a tattoo on a client’s body,” Aaron Moss, an attorney at Greenberg Glusker Fields Claman & Machtinger LLP, who is not involved in the case, told Bloomberg.

. . . .

In March 2017, Von D, whose legal name is Katherine Von Drachenberg, published the first of two Instagram posts of a tattoo based on a Sedlik’s 1989 photograph of jazz legend Miles Davis, holding a finger to his lips.

. . . .

In 2021, Sedlik responded by suing Von D, claiming that the tattoo was an unauthorized derivative work, and that creating it and posting it on social media was an infringement of his copyright.

After reviewing legal filings from both sides, U.S. District Judge Dale S. Fischer has decided to bring the case to trial. A jury will be asked to decide whether or not the tattoo falls under the doctrine of fair use, as well as if Von D’s use of Sedlik’s image denied the photographer a licensing opportunity.

. . . .

“A finding of infringement would effectively make public display of the tattooed person’s arm an act of infringement,” Amelia Brankov, a copyright lawyer not involved in the case, told Artnet News. “This could give pause to tattoo artists who are asked to ink third-party imagery on their clients.”

“Holding tattoo artists civilly liable for copyright infringement will necessarily expose the clients of these artists to the same civil liability anytime they choose to get tattoos based on copyrighted source material, display their tattooed bodies in public, or share social media posts of their tattoos,” Von D’s lawyers wrote in a legal filing. “That is not the law and cannot be the law.”

Link to the rest at ArtNet

There are images of the original photo and the tattoo at the OP

 Long-term IP Management

From Kristine Kathryn Rusch:

[W]riters should consider their IP a living breathing entity that has a lifespan all its own; IP is not something to be easily discarded or sold for a quick buck.

Writers who do that will live to regret it.

In the previous post, I discussed how the most valuable intellectual properties are the ones with longevity, even if they’re not the most famous properties. A property with a long history also has a long relationship with its fan base, something that businesses which license intellectual property for things like games and toys truly value.

. . . .

In May, Authentic Brands Group issued threatening cease-and-desist letters to wedding chapels around Las Vegas. The reason? ABG told the chapels that they were using Elvis Presley’s image, music, and iconography without permission.

I’d often wondered about some of these places. I live in wedding chapel central, not far from several chapels that have a silhouette of Elvis as part of their logo. Not a week goes by in my neighborhood without an Elvis getting into a Cadillac or a group of Elvises (Elvi?) standing around a fake grass lawn or Elvis hits wafting from the cupola of a nearby wedding chapel.

If I’d given this anything—and I really hadn’t—I’d assumed that these Elvis appearances were licensed. I do recall discussing Elvis impersonators in my recent Entertainment Law class in regards to some music copyrights: the Elvis estate routinely denies Elvis impersonators synch licenses, licenses that allow the impersonator to marry their video to Elvis’s music. I get that; the estate wants videos of Elvis singing to be Elvis, not someone else.

. . . .

When Elvis died, in 1977, there were no impersonators, no Vegas Elvis weddings, nothing like that. There were no laws on the rights of celebrities to control their own images. All of that—what little there is—was developed long after Elvis died, and is still changing and growing.

The Elvis impersonator industry, including the wedding chapels, evolved over decades, and the Elvis estate did not actively pursue imitators. So the industry flourished.

The Elvis estate fascinates me, because of its management history. Elvis essentially died broke, and when his ex-wife Priscilla took over, the estate had little ability to generate revenue. Priscilla, with the help of advisors, created Elvis Presley Enterprises “to manage all Elvis image rights and remaining royalties, which primarily included turning Graceland into a tourist attraction. Between Graceland profits, merchandising, image deals, and royalties from songs recorded after the RCA deal, Priscilla and her co-executors of the Elvis Estate helped grow its value to a reported $100 million by 1993” according to Forbes.

That year, Lisa Marie Presley turned 25, and was able to claim her part of the estate. Then things got messy.

I’m not going to go into the mess here, but suffice to say that Lisa Marie got her father’s business acumen, not her mother’s. She appointed a business guy, one Barry Siegel, to handle the financial affairs. He sold 85% of Presley’s interest in EPE and invested some part (this is murky to me) in a holding company that included American Idol and eventually went bankrupt.

. . . .

During this great financial upheaval, Authentic Brands Group acquired the rights to license and merchandise all things Elvis. ABG calls itself “an intellectual property corporation,” and it handles the images of Marilyn Monroe and Muhammad Ali, among others. The details of the deal aren’t easy to find, but suffice to say that this deal was made for money, not because EPE wanted to lose control of its cash cow.

. . . .

Bullying often works in IP cases because the costs of going to court are so very high. If a company like ABG comes after a small business like a wedding chapel, then the small business usually has no recourse but to cave. A long-term lawsuit on these issues can cost upwards of $100,000 or more. Very few small businesses can absorb that.

But ABG made a biiiiiiig mistake going after wedding chapels in Las Vegas. The wedding industry in this city is a two billion dollar industry, and Elvis-themed weddings are a big part of it.

So, when ABG went after the chapels (and not all of them, either), it screwed up. Within days, the chapels had banded together to fight this overreach, and had the entire city behind them. Eighteen-thousand jobs were suddenly at risk, not to mention all the other Elvis themed products.

ABG didn’t randomly pick this spring to go after the chapels. There’s a big Elvis movie coming out on June 24, and some person at ABG figured that would increase interest in Elvis. They sent these letters so that no one would profit off the Elvis revival but them.

Big problem, though. People have been profiting off Elvis for decades. Yes, EPE and the estate have occasionally gone after trademark infringers, but not in any organized way. Neither has ABG.

. . . .

This has serious implications for potential lawsuits. ABG expected the wedding chapels to roll over and either give up their work or pay hundreds of thousands without a fight. ABG did not want a legal fight, because they have not correctly defended the Elvis brand.

No one has. It would take years, but there’s a strong possibility that lawsuits over the IP could result in ABG and EPE losing their trademarks over Elvis. To maintain a trademark, you need to vigilantly defend it. EPE and ABG did not defend much at all. In fact, for years, EPE and ABG allowed this to go on, and so to try to shut it all down now might be impossible.  (Lawyers, feel free to correct if I’m wrong.)

Given the fact that ABG reversed course the moment the wedding chapels and the city got involved tells me that some higher up in the company blinked. I’m sure some junior lawyer has been fired and now ABG is trying to clean up its mess.

The clean-up is ugly as well. ABG is now trying to charge for a license, which they should have done in the first place. The charge went (in less than a week) from tens of thousands to $500 per year. No one has signed anything or agreed to anything, and if the chapels are getting advice from some of the good IP attorneys in this city, I doubt anyone will pay for a license.

. . . .

Why am I telling you this? Because Elvis Presley is the 7th highest earning dead celebrity, according to Forbes. The estate earned $30 million last year. Yes, some of that was Graceland, but it also included licensing a TV channel and a Netflix animated alternate history series in which (I’m not kidding) “Elvis will explore an alternate history where he faked his own death to fight crime with a secret government spy program.”

As I mentioned before, long-term IP is worth a lot of money. Even when it’s badly mismanaged, as the Elvis estate has been since Priscilla stepped away from it all. The dang thing keeps earning money. Clearly a lot of that money is going into the pockets of people who have no connection to the long-dead King, but that’s because of the mismanagement.

Had Lisa Marie handled everything—or let her mom remain in charge—that $30 million would go directly to the estate instead of others. And clearly, someone would have known better than to mess with the wedding chapels and Vegas, which have done more to keep Elvis’s legacy alive than almost any other group.

. . . .

Story number two is one many of you sent to me. Each one of you sent a different article, and all of those articles were different from the one I initially saw.

Yep, there’s a copyright lawsuit over the new Top Gun: Maverick movie. A lawsuit so serious that should some judge really want to, the judge could pull the movie from the theaters.

The lawsuit was filed in early June, and so far, the movie is still playing well, so I doubt that any injunction will happen. But what’s going on here is almost the exact opposite of what happened with Elvis.

In 1983, Ehud Yonay published an article in California Magazine called “Top Guns.” The original movie, Top Gun, was based on this article. In fact, Ehud Yonay received a single card credit in the movie, which I noticed when I rewatched the movie in late May.

Yonay’s involvement wasn’t hidden, like the involvement of so many writers. It was there for everyone to see.

Yonay died in 2012. In 2018, Yonay’s widow and son filed a notice to reclaim the full copyright…and notified Paramount Pictures that it was doing so. The rights reverted to the Yonays in 2020, and in January of 2020, they filed a notice of termination of the copyright with Paramount Pictures, knowing full well that the Maverick movie was in development.

The Yonays claim that Paramount needed to reacquire the film and ancillary rights to the article. In other words, they needed a new agreement.

Paramount claims they do not need to do that, since the movie was more or less complete before the notice of termination hit. The pandemic messed everything up, including timing here. The Yonays claim that the movie wasn’t completed until May of 2021, long after Paramount received notice.

This will be up to a court to decide. What’s happened in most of these 35-year reclamation cases is that ultimately the licensing agreements are renewed, with a boatload of money going to the copyright holder. Most of these cases are settled and the terms are not disclosed.

Link to the rest at Kristine Kathryn Rusch

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.

Copyright and Coronavirus

From Publishing Perspectives:

One of the most interesting results of this year’s sessions of the Standing Committee on Copyright and Related Rights last month at the World Intellectual Property Organization in Geneva (WIPO) is a new report, The Impact of the COVID-19 Pandemic on Creative Industries, Cultural Institutions, Education, and Research.

The world of international policy organizations is intensely fond of its acronyms, and the Standing Committee on Copyright and Related Rights is referred to simply as “SCCR.” The International Publishers Association (IPA), also based in Geneva, is the book-publishing body that represents the world industry at this sequence of discussions. So, in non-governmental organization (NGO) parlance, the IPA goes to WIPO’s SCCR as the NGO for publishing.

As you may recall, the SCCR meetings bring together the views and perceived pressure points of international delegates on copyright, not only as it pertains to books and publishing but also to broadcast, archives, libraries, theatrical production, and more. It’s a kind of summit of international stakeholders in industries in which copyright is important.

. . . .

Several points made in the contextual analysis on Pages 5 and 6 of the SCCR report are especially useful.

One of them–as unhappy as it makes us to read it–has to do with the potential for unfinished business relative to the current pandemic: “Far from being an imminent or emerging crisis, it is a sustained crisis: it can last for months or years, over a very long crisis existence phase, and also [be a] cyclical crisis as well because of the different contagious waves.”

The element that publishers are most familiar with, in SCCR terms, is this: “If on one hand, COVID-19 disrupted the market and business ecosystems we traditionally know, on the other hand it has accelerated innovation, introducing the so-called ‘imposed service innovation.’” In publishing, of course, we’ve used the common term “digital acceleration” for this–an “imposed” (indeed) need to muster digital alternatives most particularly in book retail in all formats, but also, for many, in distribution where ebook and audiobook formats were less well established.

And there’s the upbeat part of that digital acceleration: “This specific crisis created a change of mindset and stimulated business opportunities that would never have been considered under normal circumstances.”

. . . .

What Publishing Perspectives readers may find interesting in the report is the look at effects on the audiovisual sector, the music sector, visual arts, museums, and libraries–”nearby” creative industries, each of which has had its own path, to first understanding and then trying to respond to the impact of this protracted emergency. In so many ways, those sister industries’ struggles ran parallel to those of the book business. As bookstores closed, so did art galleries, museums, and auction houses. This, as the roughly half of the music industry’s business was shuttered, as concerts, festivals, tours, and solo performances were cancelled.

Copyright issues in audiovisual abruptly intensified surfaced as the drive toward digitally distributed entertainment in Africa suffered what’s estimated to have been at least a 50-percent loss in potential revenue, the report says, because of “illegal exploitation of creative audiovisual content”–piracy.

Not surprisingly, a line in the report’s conclusion reads, “More attention should be paid to developing e-resources that should respect copyright as a whole, including facilitating uses through licensing, of material in educational and research settings. This could limit piracy damages in crisis times and support the development of local industries while paying attention to creators.”

. . . .

In terms of the piracy issues that plague many of the world’s publishing markets–often with limited and lackluster efforts from law enforcement to help–Al Qasimi called for effective enforcement of copyright protections to shield publishers from “physical and online piracy and to boost the publication of indigenous educational resources and ‘homegrown’ authors.”

Link to the rest at Publishing Perspectives

PG would love to know how many authors from various nations were included among the NGO’s, foundations, large corporations and government agencies attending and, more importantly, speaking at this conference.

17 U.S. Code § 107 – Limitations on exclusive rights: Fair use

From the Legal Information Institute:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

Notes

house report no. 94–1476

General Background of the Problem. The judicial doctrine of fair use, one of the most important and well-established limitations on the exclusive right of copyright owners, would be given express statutory recognition for the first time in section 107. The claim that a defendant’s acts constituted a fair use rather than an infringement has been raised as a defense in innumerable copyright actions over the years, and there is ample case law recognizing the existence of the doctrine and applying it. The examples enumerated at page 24 of the Register’s 1961 Report, while by no means exhaustive, give some idea of the sort of activities the courts might regard as fair use under the circumstances: 

“quotation of excerpts in a review or criticism for purposes of illustration or comment; quotation of short passages in a scholarly or technical work, for illustration or clarification of the author’s observations; use in a parody of some of the content of the work parodied; summary of an address or article, with brief quotations, in a news report; reproduction by a library of a portion of a work to replace part of a damaged copy; reproduction by a teacher or student of a small part of a work to illustrate a lesson; reproduction of a work in legislative or judicial proceedings or reports; incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located in the scene of an event being reported.”

Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts. On the other hand, the courts have evolved a set of criteria which, though in no case definitive or determinative, provide some gauge for balancing the equities. These criteria have been stated in various ways, but essentially they can all be reduced to the four standards which have been adopted in section 107: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.”

These criteria are relevant in determining whether the basic doctrine of fair use, as stated in the first sentence of section 107, applies in a particular case: “Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

The specific wording of section 107 as it now stands is the result of a process of accretion, resulting from the long controversy over the related problems of fair use and the reproduction (mostly by photocopying) of copyrighted material for educational and scholarly purposes. For example, the reference to fair use “by reproduction in copies or phonorecords or by any other means” is mainly intended to make clear that the doctrine has as much application to photocopying and taping as to older forms of use; it is not intended to give these kinds of reproduction any special status under the fair use provision or to sanction any reproduction beyond the normal and reasonable limits of fair use. Similarly, the newly-added reference to “multiple copies for classroom use” is a recognition that, under the proper circumstances of fairness, the doctrine can be applied to reproductions of multiple copies for the members of a class.

The Committee has amended the first of the criteria to be considered—“the purpose and character of the use”—to state explicitly that this factor includes a consideration of “whether such use is of a commercial nature or is for non-profit educational purposes.” This amendment is not intended to be interpreted as any sort of not-for-profit limitation on educational uses of copyrighted works. It is an express recognition that, as under the present law, the commercial or non-profit character of an activity, while not conclusive with respect to fair use, can and should be weighed along with other factors in fair use decisions.

General Intention Behind the Provision. The statement of the fair use doctrine in section 107 offers some guidance to users in determining when the principles of the doctrine apply. However, the endless variety of situations and combinations of circumstances that can rise in particular cases precludes the formulation of exact rules in the statute. The bill endorses the purpose and general scope of the judicial doctrine of fair use, but there is no disposition to freeze the doctrine in the statute, especially during a period of rapid technological change. Beyond a very broad statutory explanation of what fair use is and some of the criteria applicable to it, the courts must be free to adapt the doctrine to particular situations on a case-by-case basis. Section 107 is intended to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way.

Intention as to Classroom Reproduction. Although the works and uses to which the doctrine of fair use is applicable are as broad as the copyright law itself, most of the discussion of section 107 has centered around questions of classroom reproduction, particularly photocopying. The arguments on the question are summarized at pp. 30–31 of this Committee’s 1967 report (H.R. Rep. No. 83, 90th Cong., 1st Sess.), and have not changed materially in the intervening years.

The Committee also adheres to its earlier conclusion, that “a specific exemption freeing certain reproductions of copyrighted works for educational and scholarly purposes from copyright control is not justified.” At the same time the Committee recognizes, as it did in 1967, that there is a “need for greater certainty and protection for teachers.” In an effort to meet this need the Committee has not only adopted further amendments to section 107, but has also amended section 504(c) to provide innocent teachers and other non-profit users of copyrighted material with broad insulation against unwarranted liability for infringement. The latter amendments are discussed below in connection with Chapter 5 of the bill [§ 501 et seq. of this title].

In 1967 the Committee also sought to approach this problem by including, in its report, a very thorough discussion of “the considerations lying behind the four criteria listed in the amended section 107, in the context of typical classroom situations arising today.” This discussion appeared on pp. 32–35 of the 1967 report, and with some changes has been retained in the Senate report on S. 22 (S. Rep. No. 94–473, pp. 63–65). The Committee has reviewed this discussion, and considers that it still has value as an analysis of various aspects of the problem.

At the Judiciary Subcommittee hearings in June 1975, Chairman Kastenmeier and other members urged the parties to meet together independently in an effort to achieve a meeting of the minds as to permissible educational uses of copyrighted material. The response to these suggestions was positive, and a number of meetings of three groups, dealing respectively with classroom reproduction of printed material, music, and audio-visual material, were held beginning in September 1975.

In a joint letter to Chairman Kastenmeier, dated March 19, 1976, the representatives of the Ad Hoc Committee of Educational Institutions and Organizations on Copyright Law Revision, and of the Authors League of America, Inc., and the Association of American Publishers, Inc., stated:

You may remember that in our letter of March 8, 1976 we told you that the negotiating teams representing authors and publishers and the Ad Hoc Group had reached tentative agreement on guidelines to insert in the Committee Report covering educational copying from books and periodicals under Section 107 of H.R. 2223 and S. 22 [this section], and that as part of that tentative agreement each side would accept the amendments to Sections 107 and 504 [this section and section 504 of this title] which were adopted by your Subcommittee on March 3, 1976.

Link to the rest at Legal Information Institute

Home Copyright Protection Company Enters Legal Tech Market with Launch of ‘ImageRights for Law Firms’

From LawSites:

ImageRights International, a company whose technology has helped visual artists protect their copyrights since 2009, is now entering the legal tech market with its launch today of ImageRights for Law Firms, a platform designed to help law firms and corporate legal departments directly protect their clients’ copyrighted photographs, illustrations, digital art and other visual works.

ImageRights for Law Firms uses proprietary, cloud-based technology to constantly search the internet for uses of clients’ images and to automatically acquire evidence for firms to use in pursuing legal remedies.

The powerful technology will find images matching the clients’ even if they have been radically cropped, had colors changed or removed, been altered with text or image overlays, or have been flipped or added to a collage, the company says.

. . . .

While the platform cannot distinguish between authorized and unauthorized uses of an image, it constantly monitors the internet and then collects any copies it finds in a review platform, where the company’s AI sorts, filters and ranks the images so that the the client or attorney can review them and identify any that are not authorized.

The attorney can then request a time- and date-stamped screenshot, which the product collects and saves, along with server IP information.

From there, the attorney can download the images with the click of a button, to be used directly or imported into a case management system.

The new law firm platform uses the same AI search technology that has been the core of ImageRights’ product for visual artists since 2009. As part of its service for artists, the company maintains an international network of attorneys that artists can connect with to protect their copyrights.

Link to the rest at LawSites

Music Streaming and The EU Digital Single Market Copyright Directive

From The IPKat:

Readers may have followed the IPKat reports on the UK Music Streaming Inquiry, which focused on musicians and performers’ remuneration from streaming, or lack thereof, amongst other things. However, this conversation is not solely a national matter. It is clear that these issues are global and that there is a need for change at an international level in the music industry.

In May 2021, the French government gave organisations representing performers and phonographic producers 12 months to negotiate an agreement guaranteeing “an appropriate and proportional minimum remuneration for artists” whose works are broadcast by streaming services. The deadline came after a 2015 initiative that sought an industry-led solution for a fair online music industry. The negotiations were mediated and no doubt the EU Digital Single Market Copyright Directive – which requires “appropriate and proportionate” remuneration for performers – also impacted on those ongoing talks.

Now, in May 2022, – much like most of us these days who only meet our deadlines in the eleventh hour– a historic agreement was reached between France’s main organisations representing record labels and performers/musicians. The agreement ensures that all performers will receive a minimum remuneration for the exploitation of their recordings by streaming services and provide a minimum royalty rate. It also embraces the principle of a minimum advance for featured artists, as well as, for non-featured musicians, a specific package for streaming with automatic additional remuneration when listening thresholds are reached.

In particular, the agreement includes the following,: 

• A minimum rate of royalties due to featured performers for the broadcast of their work via streaming; 

• A guaranteed minimum advance of €1,000; 

• A profit-sharing mechanism for the benefit of musicians when musical works reach a certain level of success; 

• A fixed remuneration for the benefit of all musicians; 

• A strengthening of FONPEPS – a private/public fund supporting employment 

• Increasing minimum fees for session musicians 

• Additional remuneration for artists, paid for by their record label, for every 7.5 million plays their song receives

Currently, revenue from streaming for featured artists depends on their recording or distribution contract. Non-featured performers – i.e., session musicians – are usually paid a one-off fee for their time and so do not usually receive anything more when the song is streamed. Therefore, these agreed changes will change the remuneration framework for both featured and non-featured artists from streaming.

Link to the rest at The IPKat and thanks to C. for the tip.

PG notes that both authors and musicians have a long history of being badly treated
by the entities that have traditionally published their work. Despite the
differences between US and French intellectual property laws, unsurprisingly,
the same historic pattern appears to have been established in France.

While PG instinctively comes down on the side of the
author/performer/artist/musician, etc., in matters such as are discussed in the
OP, he wonders whether music producers might dodge this agreement by putting
all the performers onto an airplane and flying them to a destination outside of
France for recording sessions paid for by a non-French (or even non-EU)
corporate entity.

In PG’s hazy memory, he thinks this may have happened with California-based
production companies flying everyone to Mexico for performance and recording
purposes. But, as always, PG could be wrong about that.

One of the fundamental problems in these sorts of situations is that there
are always far more starving artists/authors/musicians, etc., than there are
publishers/producers, etc.

The established stars of any field of creative endeavor have the clout to
negotiate favorable agreements and payments – think author James Patterson in
the US – but those creators farther down the food and power chain are often
faced with take-it-or-leave-it choices due to the substantial power differences
that limit negotiation opportunities.

PG has no idea of how many negotiations he has been involved in for clients,
and although power differences between the negotiating parties are always in
play, competent negotiators can almost always improve the contract provisions
in favor of the parties they represent.

A long time ago, PG was appointed to represent various indigent defendants
who had been charged with a comprehensive and colorful variety of crimes. Here,
the power differences were substantial – the state with a group of salaried law
enforcement officers with access to many other resources the state and federal
governments could provide on one side and PG with a semi-literate impoverished
client on the other. (With a small handful of exceptions, crime does not pay
very well in the real world.)

The only alternative to a negotiated settlement – a plea bargain – was a
criminal trial either in front of a judge (whose predilections were either
known to PG or could be ascertained by a few calls to attorney friends) or a
jury trial in front of twelve randomly-selected adults who happened to live in
the county where the crime had been committed and the criminal charges were
filed. (PG will skip change of venue possibilities in this discussion because,
in 99% of the cases, jurors from one county were, for practical purposes,
indistinguishable from jurors from any nearby county.)

After a jury verdict, PG attempted to chat with as many jurors as possible
to determine what elements had influenced their decision. It was a very
interesting experience because the jurors had sometimes intuited some
additional elements to the case that could not be included in the evidence they
had received for one reason or another. They were also quite good at
identifying a witness who was lying, even if that witness was a law enforcement
officer (a rare occurrence in PG’s experience, but not out of the question).

Juries are relevant to copyright issues because, although almost all
copyright cases are tried without a jury, the Supreme Court has held that the
parties have a right to a jury trial if a defendant in a copyright lawsuit for
statutory damages demands a jury trial. See Feltner v. Columbia
Pictures
, 523 US 340 (1998). Click
here for a summary of that opinion
.

 

Graphic Tools for Indie Authors – Part 1

From Forseng Fiction:

This post is the first of a multi-part series on graphic tools for Indie Author activities — blogging, newsletters, marketing, book trailers and the like. The series will cover some applications I have blogged about before, such as PowerPoint and Lumen5, but will also address others such as PhotoFunia, and Adobe Spark.

The purpose of the series is give Indie Authors of the tools available, some idea of the purposes to which they can be put, and an indication the required skill, time, and cost to be invested in the use tools.

This post begins a definition of “general assets” and “novel-specific” assets used as the “aw materials for creating visual content.

After the definitions I review and issue that plagues a lot of Indie Authors — they are not artists, so where can they obtain the necessary graphic “raw materials” — usually images — which they can then use for their own purposes?

Finally, the post covers PowerPoint — the “poor man’s” graphic editor.

Resources

A significant stumbling block for any indie author who wants to make use of visuals — stills, videos, GIFs, etc — is the lack of images with which to work. The days of pulling photos off the web are long gone, and I’ve read online that authors lament that while they want to make use of various visual tools, they have little “raw” material with which to work.

Fortunately, visual resources have become available over the last several years. I tend to class visuals into two categories: general assets (think stock photos) that can be used in visual content, and novel specific — those assets tied directly to an author’s book.

General Assets

General assets can be had from a wide variety of websites — both pay and free. Rather than trying to provide a comprehensive list, I’ve merely provided links to a few resource compilations:

23 Tools and Resources to Create Images for Social Media — despite the title, almost everything in this article can be applied to Indie Authors

The Best Royalty-Free Stock Image Sites for Your Book Cover — although focused on book covers, there are links to different image resources

27 Superb Sites with Royalty Free Stock Images for Commercial Use — the name says it all

There other possibilities as well. Indie authors who post their own images to Instagram may be able to “re-purpose” some them for other uses, for example. As always, when sourcing images, it pays to read the licensing terms to avoid copyright trouble.

Novel Specific Assets

These types of visual assets are directly tied to an Indie Author’s novel or series. Book covers represent the bulk of the assets which fall into this category, but it also includes images, illustrations, drawings, maps, and diagrams used in book trailers, blog posts, and promotional efforts.

To some extent, novel specific assets may be available from general asset sources. This is likely most true for genres such as romance, crime, and adventure and the like. For authors who write fantasy or science fiction, general sources may not offer much help.

In those situations, it may be necessary to spend some money have have something custom developed for the book or series. Typically these are done by commissioning amateur or professional artists. How much this will cost depends upon several things:

  • What is to be depicted (one character or multiple characters, full figure or partial, abstract or realistic background, etc)
  • The use to which the image will be put (book cover, blog post, book trailer, etc)
  • Whether the image is to be painted, drawn, modeled, sketched, coloured or black and white, etc
  • How quickly the image is required

Artists which may be commissioned can be found on Craigslist, DeviantArt, Fiverr, and other sites. Careful research is key, and the temptation to rush into a commission should be avoided. More information on working with commission-able artists can be found [elsewhere, see links on OP]

PowerPoint

PowerPoint is the poor man’s graphics tool and with a little imagination can be used to produce some graphic assets which can be used in blog posts, animations, and book trailers.

Most people who use Microsoft products are familiar to some degree with PowerPoint, so the learning curve is not steep.

Primary Uses

Primary graphics uses for PowerPoint include:

  • Simple graphics, primarily text-based
  • Limited animated sequences exported to MP4 format

Advantages

There are three main advantages to using PowerPoint:

  • Low cost — if Microsoft Office is installed, PowerPoint is immediately available for not additional cost. Moreover, everything an Indie Author creates with PowerPoint belongs to them (provided they do not use any 3rd party photo, graphic, or video assets).
  • Ease of use — the toolbars, functions, and capabilities are fairly easy to grasp, especially if the Indie Author has used PowerPoint for other purposes (e.g. in a job) in the past.
  • Export to movie option — export consecutive slides (a slideshow) as a movie using PowerPoint’s native capabilities.

Disadvantages

PowerPoint disadvantages are tied to its feature limitations.

  • Limited graphic capabilities — PowerPoint is not designed to be graphics creation tool, though many people use it that way. To achieve the desired effect with limited graphics features will take some experimentation and time
  • Limited animation control — PowerPoint lacks the fine timing controls and other video editing features available in even the simplest dedicated video editor

This is not to say that some incredible images and animations cannot be made with only PowerPoint. To do so, however, would require a significant investment in time. Most Indie Authors would like prefer to put such time to writing.

Link to the rest at Forseng Fiction

Although PG has created and presented with about ten billion PowerPoint talks/exhortations/shows, he has never thought of PowerPoint as a graphics tool.

You can find a gazillion PowerPoint presentation templates online, but the program would be pretty clumsy to use for a cover design.

With respect to picking up a template online or reusing a PowerPoint presentation you find online, it is theoretically possible to copyright a PowerPoint template and/or presentation, but, unless someone uses all or close to all of your template/presentation without a lot of changes, you may be looking at a difficult case to prove.

Note the distinction between claiming a copyright on a PowerPoint presentation and claiming a copyright to a photo or piece of art that is included in a relatively intact form in a PowerPoint presentation.

Theoretically, a variation on a copyright-protected presentation could be termed a derivative work which could give rise to a copyright claim, but the distinction between a new work and a derivative work could be difficult to perceive for a judge. PG thinks he could locate a zillion PowerPoints online that had a highly similar look as any original he’s seen.

The most common uses of other people’s PowerPoint presentation is for the general design and not the words and images included in the original.

If you started out with someone else’s template in the public domain or otherwise, but modified the look, colors, etc., again there is a problem of proof for the person trying to enforce a copyright if he/she was not the sole creator of the work.

Additionally, regarding damages, if the original presentation was not registered with the Copyright Office and/or didn’t include some notice that the creator intended to assert a copyright interest, that could also cause problems.

PG thinks that there are potentially a lot of fair use defenses for a claim based on an infringing presentation that used only bits and pieces of the original.

PG did some quick and dirty online research to see if he could find any information regarding someone filing suit for copyright infringement of a PowerPoint slide deck and couldn’t locate anything. If any visitors to TPV know of such a case, feel free to include it into a comment to this post or forward it to PG by using the Contact PG link at the top of the blog.

5 Expensive Problems with Using Creative Commons for Small Business

From Small Business Trends:

Using a Work with a Creative Commons License Published by Someone Else

Now, let’s imagine that you maintain a blog for your small business. You need to include images with your blog posts because all of the blogging experts and research studies show that blog posts with images perform better than blog posts without images.

You don’t have a budget for images, so you search on Flickr and choose images that have Creative Commons Attribution licenses applied to them that allow commercial use (because your small business blog is a commercial property). You follow the instructions on the Creative Commons website to appropriately attribute the image to its owner and identify the Creative Commons license. You assume you’ve done everything right and that you’ve followed all of the necessary rules so you won’t be accused of copyright infringement in the future.

Sounds good right? Not always.

What happens when you receive the Getty Images Demand Letter like so many other bloggers and small businesses have in the past several years? What happens when the real owner of the work (who is not the person who uploaded it to Flickr and applied a Creative Commons license to it) contacts you and demands compensation?

Again, there are problems that are very likely to arise in the future.

. . . .

Creative Commons Won’t Help You if You Have Problems

The Creative Commons organization absolves itself of any problems you might encounter with one of its licenses in the future within its terms saying, “Creative Commons gives no warranties regarding its licenses … disclaims all liability for damages resulting from their use to the fullest extent possible … is not a party to its public licenses.” If something goes wrong, you’re on your own.

The Creative Commons License on Someone Else’s Work Might Not Be Valid

A big problem with Creative Commons licenses is the fact that anyone can apply them to any work. For example, many of the Creative Commons licensed images on Flickr, Google, and sites that aggregate images weren’t uploaded by the owners of the images. The Creative Commons licenses applied by the people who uploaded the images (but don’t own them) are completely invalid! If you use one of these improperly licensed images, you very well might get caught and find yourself on the losing end of an expensive copyright infringement lawsuit.

Link to the rest at Small Business Trends

PG will add that organizations that own and licenses large numbers of copyrights on images of all sorts can use the same image search techniques you use with Google Images, likely on an automated basis, to sort through the zillions of web sites online, including your author’s website and the product listings of online bookstores to find images that have some degree of similarity to an image for which the organization owns the license (usually assigned by the creator or the owner if the image is a work made for hire).

Images that are no longer protected by copyright are safe to use, but you’ll want to make certain that the image of Big Ben you choose from the many, many other photos is, in fact, the one shot by the photographer whose copyright is expired or the painter of similar vintage.

Songwriter’s heirs can’t reclaim rights to Elvis hit, judge rules

From Reuters:

The daughter and grandson of Hugo Peretti, who co-wrote Elvis Presley’s hit song “Can’t Help Falling in Love,” cannot recover rights to the song from Authentic Brands Group LLC under copyright law, a U.S. appeals court said Wednesday.

The rights that Valentina Peretti Acuti and Paul Reitnauer argued they were entitled to did not exist when Peretti and his family sold them, the 2nd U.S. Circuit Court of Appeals said.

. . . .

It was 1961 when Peretti and two other songwriters wrote the ballad “Can’t Help Falling In Love,” which became a hit for Presley and has since been recorded by hundreds of other musicians.

Peretti, his wife and his daughters agreed in 1983 to transfer their right to renew Peretti’s copyright interest in the song to Julian and Joachim Aberbach, who later transferred it to Authentic Brands. The company manages dozens of brands, including Presley’s.

Acuti and Reitnauer gave Authentic Brands notice that they were terminating the contract in 2014, under a provision of federal copyright law that allows creators to terminate transfers of their copyrights and reclaim them after decades.

The heirs sued in Manhattan federal court in 2020 after Authentic Brands disputed the termination, seeking a ruling that it was effective. The 2nd Circuit agreed Wednesday with the district court’s decision to dismiss the case last year.

The termination right only applies to agreements executed by the author themselves, and the only concrete right Peretti owned at the time of the contract was his “interest in the composition during its original term,” U.S. Circuit Judge Gerard Lynch said.

The rights at issue in the case were not concrete as of 1983 and depended on several hypothetical factors before becoming concrete, like Peretti being alive when the copyright was up for renewal and his wife staying married to him, Lynch said.

Peretti died in 1986, and his widow, daughters, and surviving co-writers renewed the copyright in 1989. The rights at issue came into existence at that time and transferred to the Aberbachs, Lynch said.

Link to the rest at Reuters and thanks to C. for the tip.

PG thinks this isn’t the clearest summary of the case, but hasn’t had the time to read the entire opinion yet. It does appear to raise substantial concerns about heirs of the original creator of a creative work (book, music, painting, photo, etc.) not being able to terminate a license for the work in the same manner as the creator could under §203 of the Copyright Act of 1976.

The Reuters account is a bit jumbled, but PG is going to read the opinion and keep his eyes open for the variety of legal analyses that will be forthcoming in the next several days.

Suffice to say, intellectual property attorneys and their staffs will be burning the midnight oil while reading a lot of contracts their clients have signed that may be impacted by today’s decision. PG also predicts this isn’t the last lawsuit dealing with the issue.

7 Common Types of Plagiarism

From The Grammarly Blog:

Plagiarism is the act of passing off someone else’s work as your own. That’s the most basic definition—there’s actually a lot more nuance to it, and you might be surprised to learn just how many different kinds of plagiarism exist.

. . . .

What is plagiarism, and why should it be avoided?

As we said above, plagiarism occurs when one writer attempts to pass off another writer’s work as their own. But that’s not all plagiarism is. Plagiarism also occurs when a writer references another’s work in their own writing and doesn’t properly credit the author whose work they referenced. It’s even possible for a writer to plagiarize their own work.

Plagiarism should be avoided for a variety of reasons. For one, it’s dishonest. Put simply, presenting another writer’s work as your own is lying.

Another reason to avoid plagiarism is that you don’t learn anything by plagiarizing another’s work. When your professor assigns an essay, they expect an honest effort from you to engage with the topic you’re covering, apply critical thinking skills, and demonstrate your ability to effectively develop, present, and defend your position. An original essay, flaws and all, shows your professor how you’re progressing in their class and any areas where you might need some extra support.

It’s also disrespectful to the original author. Writing is work, and it can be very challenging work at times. Claiming somebody else’s work as your own strips them of the recognition they deserve for the effort they put into creating it and gives yourself undue credit.

Keep in mind that although this blog post focuses on plagiarism in writing, it’s possible to plagiarize any kind of creative or academic work. Copying another artist’s work is a form of plagiarism, taking credit for another scientist’s research is plagiarism, and copying another app’s code and building your own with it without recognizing the original programmer is plagiarism. Basically, any act of presenting another person’s work as your own is an act of plagiarism. When you profit from an act of plagiarism, it’s known as intellectual property theft. Intellectual property theft is a criminal offense.

7 common types of plagiarism

Plagiarism comes in many forms. These seven types of plagiarism are the most common:

1. Complete plagiarism

This overt type of plagiarism occurs when a writer submits someone else’s work in their own name. Paying somebody to write a paper for you, then handing that paper in with your name on it, is an act of complete plagiarism—as is stealing or “borrowing” someone’s work and submitting it as your own.

An example of complete plagiarism is submitting a research paper for English class that your older sister wrote and submitted when she took the class five years ago.

2. Direct plagiarism

Direct plagiarism is similar to complete plagiarism in that it, too, is the overt passing-off of another writer’s words as your own. The difference between the two is how much of the paper is plagiarized. With complete plagiarism, it’s the entire paper. With direct plagiarism, specific sections or paragraphs are included without crediting (or even acknowledging) the author.

An example of direct plagiarism is dropping a line or two from your source directly into your work without quoting or citing the source.

3. Paraphrasing plagiarism

Paraphrasing plagiarism is what happens when a writer reuses another’s work and changes a few words or phrases. It’s a common type of plagiarism, and many students don’t even realize it’s a form of plagiarism. But if you’re presenting someone else’s original idea in your writing without crediting them, even if you’re presenting it in your own words, it’s plagiarism.

Link to the rest at The Grammarly Blog

While PG thinks plagiarism is a bad thing and no one should engage in the practice, he will disagree with some of the points in the OP.

In the United States, there is a vanishingly small possibility of being criminally prosecuted for plagiarism.

Generally speaking (no legal advice), to prove criminal copyright infringement charges (not exactly the same as plagiarism) in the US, the prosecutor/district attorney must produce evidence of three things the government can prove beyond a reasonable doubt (and, since a criminal case can only be prosecuted by the government, you must persuade an overworked district attorney that your case is more important than the three murders, seven armed robberies and 18 burglary cases sitting on her/his desk when that individual has never heard of criminal copyright infringement before, let alone prosecuted anyone for it):

  1. the author had a valid copyright;
  2. the defendant used, copied, or distributed the material without the author’s permission;
  3. it was done on purpose; and (4) it was done for personal financial gain or business advantage.
  • Felony charges can be filed when 10 copies of a copyrighted work are reproduced or distributed with a retail value of more than $2,500.
  • Misdemeanor charges can be filed with just 1 copy and retail value of $1,000.

(Source of lists – Pate, Johnson & Church)

Plus some types of plagiarism described in the OP likely don’t rise to the level of copyright infringement.

That said, being publicly accused of plagiarism certainly has the potential to ruin an author’s reputation and, if credible, may attract attention online and in traditional media.

As the OP teaches, plagiarism is easily remedied by crediting the original source of whatever you’re writing.

Yes, if someone claims you’ve plagiarized their work and they’re wrong, you can probably sue them back as well.

With respect to using someone else’s idea without using their expression of that idea is not copyright infringement. Copyright protects the expression of ideas, not ideas themselves.

As PG has mentioned before, Boy meets girl, boy loses girl, boy gets girl (or many-gendered variations thereof) is not protected by copyright and he doesn’t think you can plagiarise a plot structure as simple as that or the wide variety of plots typically found in any sort of genre works.

Supreme Court Takes up Andy Warhol’s “Prince Series” Fair Use Circuit Split

From The National Law Review:

The U.S. Supreme Court agreed last week to review the Second Circuit’s decision that Andy Warhol’s well-known “Prince Series” was not a “transformative” fair use of the copyrighted Lynn Goldsmith photograph that Warhol used as source material (see Bracewell’s earlier reporting here).

The Second Circuit’s decision conflicts with the Ninth Circuit, and is potentially at odds with the Supreme Court’s recent ruling in Google v. Oracle, which held that Google made “transformative” fair use of Oracle’s Java software language to build the Android smartphone platform. The Supreme Court upheld the Ninth Circuit’s ruling that the exact copying of computer code could be transformative if it “alter[ed] the copyrighted work ‘with new expression, meaning or message.’” Following Google, the Second Circuit issued a revised opinion in the Prince case that kept its original ruling and distinguished the Google decision as applicable to the “unusual context” of computer code. The high court is expected to settle the circuit split and provide much needed guidance on whether the Google ruling applies outside of the computer programming context.

The controversy arose when the Andy Warhol Foundation sued to fight allegations of copyright infringement from Goldsmith, a photographer who contended that she was not aware that Warhol had used her 1981 photograph of Prince until the music icon’s passing in 2016. A New York district judge ruled that Warhol’s series had transformed Goldsmith’s image from “a vulnerable human being” into an “iconic, larger-than-life figure.” Therefore, Warhol’s use of Goldsmith’s photo did not constitute copyright infringement.

The Second Circuit rejected the district judge’s consideration of the intent and meaning behind the work, and found that the Prince Series was not a “transformative” fair use of the copyrighted photograph because it retained the “essential elements” of the Goldsmith photograph without “significantly adding to or altering” those elements.

Link to the rest at The National Law Review

In the United States, there are both federal courts and state courts. Generally speaking state courts in a given state focus on resolving disputes arising under the statutes of a given state, although some federal questions are occasionally mixed-in with state legal issues.

Federal courts typically deal with matters arising under federal law, although disputes between residents of different states can, under some circumstances, be filed or removed to federal courts, (“diversity jurisdiction”).

The large majority of all legal disputes in the US are resolved in state courts and there are many more judges in state courts than there are in federal courts. Dissolutions of marriage, for example, are virtually all resolved in state courts.

There are a handful of states which have their own limited copyright laws, but the serious copyright action arises under federal copyright law and is those fights happen in federal courts.

United States federal courts are in three tiers

  1. Federal District Courts are found in every state and that’s where disputes governed by federal law originate.
  2. Federal Courts of Appeal fall into 13 circuits populated by about 180 appellate judges. These circuits were established long ago and range from geographically small – the Second Circuit covers the district courts located in Connecticut, New York and Vermont. To the geographically enormous like the Ninth Circuit, which includes Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon and Washington plus the District Court of the Northern Mariana Islands, a US commonwealth, governed by the US since the end of World War II.
  3. At the top of the Appellate Court hierarchy is the US Supreme Court, consisting of nine justices. As with all other federal judges, the Supreme Court justices are appointed for life.

The Supreme Court is required to hear appeals from a decision of one of the courts of appeal on some types of cases. With respect to other types of cases, the Supreme Court chooses which of the many appeals filed with them that the Court will accept.

The large majority of copyright cases end their lives in the Courts of Appeal. One of the more frequent types of cases the Supreme Court may accept is one where one or more of the 13 Circuit Courts of Appeal has/have issued decisions that conflict with decisions made by one or more of the other Circuit Courts of Appeal.

Conflicting appellate court decisions regarding the Warhol copyright case is likely the principal reason why the Supreme Court accepted it. The Supreme Court doesn’t specify why it accepts an optional appeal, but conflicts between the circuits with respect to something that is a major financial player in the US economy such as copyright protection likely impacted the Court’s decision. Computer code, movies, television and books are only a few of the many major US industries that rely upon copyright issues. Of the top ten largest US companies per Fortune magazine, three – Amazon (2), Apple (3) and Alphabet (AKA Google) (9) generate an enormous portion of their revenues via copyright-protected products and services.

Here are small-form examples of some of the Warhol creations at issue in the above-described request for the Supreme Court to take the case.

Image Credit: The National Law Review

When a vampire not called Dracula bested the copyright system, and what it tells us about derivative works

From IPKat:

Last month marked one hundred years since the first screening in Berlin of the iconic vampire movie—Nosferatu: A Symphony of Horror. And, while the copyright laws were used to try to keep the film from public view, ultimately it failed, to the continuing benefit of cinematic creation. The tale of Nosferatu shows the sometimes-uneasy relationship between copyright protection and the making of derivative works.

Nosferatu was a 1922 adaption (just how much was the subject of the copyright challenge to the movie) of the wildly popular 1897 book by Bram Stoker—Dracula. But the Stoker book did not emerge from a creative tabula rasa. Vampire folklore had been passed down for centuries. Their common denominator was the presence of a creature that feeds on the vital essence (e.g., blood) of the living. The vampire was an “undead” creature which, although deceased, acts as if it is still alive.

The first modern vampire book—The Vampyre, was written by John Polidori in 1819. Its genesis was the same story-telling gathering in the summer 1816 along Lake Geneva that produced “Frankenstein”. This was followed inter alia in 1845-1847 (as a series of pamphlets) by Varney the Vampire written by James Malcolm Rymer and Thomas Peckett Prest, and in 1871 by the book Carmilla written by Sheridan Le Fanu. Thus, when Stoker produced Dracula in 1897, there was an established literary tradition alongside ongoing oral folklore.

The specific sources for Stoker’s book are still much discussed, and they include Transylvanian folklore and history (Vlad the Impaler, a 15th century figure, is often mentioned). Some also refer to claimed structural similarities with the novel by Wilkie Collins, The Woman in White. It is claimed that “[m]any of the book’s characters have entered popular culture as archetypal versions of their characters.” The upshot was that Stoker had plugged into extensive and multiple sources on vampire folklore as well as contributing to on-going archetypes of the genre.

Still, Stoker’s enormous success with the book took the vampire genre to a new level. It is not surprising that creative activity involving vampires, and particularly Dracula-like characters and story line, would be picked up by the nascent silent film industry.

And so it was that Nosferatu, directed by F.W. Murnau and produced by Albin Grau, both German filmmakers, came into being. The report goes that Grau’s inspiration for the movie came from hearing stories about vampires from local farmers in Serbia, this while he was serving in the German army in 1916. It followed with the establishment of a film company and with the hiring of Murnau (as producer) and Henrik Galeen (as screen writer).

It is here that the story, as a copyright matter, become murky. It was one thing to get excited about the possibility of making a vampire movie; it was another when the focus was taking the best of the German expressionistic cinema tradition, then in vogue, to do a movie version of Dracula. Assuming that even if Grau was not familiar with Stoker’s book when he heard the stories from the farmers in Serbia, still his decision to focus on Dracula brought him directly into contact with the copyright universe.

A movie version of a published literary work might require permission from the author, depending on how close the move came to the book. Stoker’s estate (he had died in 1912) gave no such authorization. Undaunted, Grau pressed on, and the movie was produced.

With an eye towards copyright, changes were made, beginning with the name of the movie and the main characters. Also, the plot witnessed various modifications (in the words of one commentator, “Murnau really only borrowed the skeleton of Stoker’s plot.”). For example, the most effective weapon used against the vampire is not a stake, but sunlight; the movie replaces a male band of vampire slayers with the resolute Ellen, who by virtue of self-sacrifice, saves the day; and a swarm of rats accompany the main character on his travels.

That said, arguably the most notable aspect of the movie were its novel cinematic contributions. As described in the February 26th issue of The Economist, —

A century on, “Nosferatu” is still revered for its experimental techniques—shooting on rugged locations as well as in a studio; using stop-motion animation and fast-motion footage—and for the glut of horror-movie conventions it established. The film includes villagers in a tavern who warn the hero not to proceed, and the conceit that vampires are burnt to ash by sunlight. It is the archetypal Dracula film. And yet, its most strikingly modern aspects are those that leave Stoker’s novel behind.

Enter the copyright laws. Florence Stoker, in the name of Stoker’s estate, vigorously pursued Grau and his production company in German court. She prevailed (unwisely for Grau, it seems that the early releases of film still used the name “Dracula”), the court awarded damages (Grau’s company declared bankruptcy), and the court issued a destruction order for all copies of the movie (ripping the movies from their canisters to do so, and having court-mandated agents to track down and destroy copies or negatives). The movie had entered cinema oblivion.

However, there was no longer copyright protection of the book in the U.S. due to a defect in the copyright notice (this was a material issue under the 1909 copyright law then in effect in the US). So, if a copy of the movie could be found, the movie could be safely screened there.

That is what happened, with one copy discovered in the 1940’s and another in the 1950’s. With the book in the public domain, these discoveries enabled circulation of the movie, leading to a spate of other Dracula-based productions, taking their lead from Nosferatu.

To this Kat, the real horror story here is how the copyright system and, in particular, protection regarding the unauthorized production of a derivative work, nearly put a stake in the heart of an exceptional artistic creation.

Link to the rest at IPKat and thanks to C. for the tip.

Business Musings: Copyright Fun Part 3

From Kristine Kathryn Rusch:

Let’s talk money for a minute, because really, copyright and copyright licensing translates into money, if you do it correctly. Copyright is one of those lovely assets that will continue earning for writers if the writers manage the copyright correctly.

A short story can become a novel (more money, different licenses), sell in foreign editions (more money, different licenses), become an audio book (more money, different licenses), be reprinted in anthologies (more money, different licenses), become an hour-long TV special (more money, different licenses), become a TV series (more money, different licenses), become a movie (more money, different licenses), become a video game (more money, different licenses), become a board game…

Well, you get the idea. And the writer really doesn’t have to do any more writing after finishing that short story. Everything I mentioned above is licensing little snippets of copyright. Once writers start understanding that, then they can manage their assets for the rest of their life…and beyond.

. . . .

One thing we all know, because we read books and watch TV, is that lots of money makes people crazy—both in fiction and in real life. Financial expectations, even in the smallest instances, can cause some people to become homicidal when those expectations go awry. That’s the basis for entire subgenres of mystery fiction.

In real life, few people kill over financial matters. Most people go to court, and those court cases drag on for years.

As an example that hits the publishing industry, let’s take a look at the big shocker that happened to the supposed heirs of Scholastic Corporation in June of 2021.

For context, Scholastic Corporation grew from a magazine published in the 1920s to a $1.2 billion dollar corporation with most of its revenue still in publishing. Scholastic has had amazing success over the years. They publish Clifford: The Big Red Dog, Captain Underpants, The Hunger Games, and…oh…some little series called Harry Potter. Their contracts, while not draconian, aren’t really writer-friendly either, so all of that merchandising you see for most of the big series that Scholastic publishes? Yeah, that money mostly goes to Scholastic, not to the writers.

Scholastic has done some great things for literacy and for children’s literacy in particular. It also has worked with schools for more than fifty years to make sure that kids get books to read. I still remember Scholastic Day at my school, and I looked forward to it.

Corporations aren’t really soulless things. People exist behind the corporation. And in this case, Scholastic was a family business. That little magazine was started by Maurice R. Robinson. His son, M. Richard Robinson Junior took over the company as CEO in 1975, and ran it until 2021…when he died suddenly while on a walk with one of his sons.

Richard Robinson was 84 years old, so there’s sudden and then there’s well…not as sudden so much as unexpected right now. He did have a will, however, and rather than leaving his estate and his interest in Scholastic Corporation to his sons, he left everything to his girlfriend.

The will wasn’t new though; it was executed in 2018.

Let’s ignore the family drama part of this—that all of his belongings and such and his personal $100 million fortune went to his girlfriend. The real interest are the Class A voting stocks in Scholastic Corporation. Robinson owned 53% of those stocks, which meant that he had a majority on the board of directors. He could outvote all of them, and now his girlfriend can.

This isn’t as random as it sounds. She is Iole Lucchese, the chair of Scholastic’s board,  as well as executive vice president and president of Scholastic Entertainment. In other words, she knows business and she knows the company very, very, very well.

The adult sons are contesting the will. Neither of them works in the family business. At a quick glance, it doesn’t seem like either of them ever did.

As a number of experts have said in the various articles about this battle, companies are difficult to run when the ownership of the company is under dispute. And these cases can drag on for years.

. . . .

Music copyrights are extremely complicated. Some portions of them are regulated by U.S. law, including royalties and percentages that must be paid to the songwriters by cover artists. Music copyrights fall into several categories, which make my head hurt when I think about managing them, even as a low-level musical artist. I’m not going to try to explain them here.

Just put a pin in complicated.

I’ve done a lot of work with the heirs to writers’ estates. When the superagent Ralph Vicinanza died suddenly and his sister initially handled the estate, a bunch of writer heirs—who had been relying on Ralph to handle all things writing and publishing related—contacted me. I couldn’t say anything bad about Ralph at the time (except to hang up or walk away from my email cursing the contracts he had gotten them all into, contracts that benefited him more than the writers), so I listened.

And realized that these people, who were farmers and professors and stay-at-home parents, had no idea how the publishing industry worked and worse, had no real interest in learning it.

They just wanted Mommy or Daddy’s royalties, which to them were like a stock annuity, an income they could rely on so they could continue living their lives.

Publishing contracts and licensing agreements for novels and short stories are so easy compared to music industry contracts, copyrights, and licensing agreements, the differences are like this: Publishing is arithmetic; music is calculus.

. . . .

Cashing in is a really good idea for older musicians (and even some younger ones: John Legend has sold his copyrights for music he composed between 2004 and 2021.   Legend is 43 years old, and presumably has decades of composing and recording ahead of him. None of those rights in future compositions were sold.

John Legend makes money on more than his music. As Bloomberg helpfully explained,

Dubbed “Music Mogul of the Year” by Variety in 2020, Legend … has gone on to expand into other areas of the entertainment field, in part through the founding of a production studio that’s created shows for Netflix Inc. and ABC. Variety estimates that Legend, born John Roger Stephens before adopting his stage name, takes in between $50 million and $100 million annually from his various enterprises, including LVE, his Napa Valley wine brand. 

Legend made a business transaction. I’ll wager he and his advisors are thinking that the payments for music catalogs will go down by the time he’s Paul Simon’s age. Better to cash in now.

This is how you leverage copyright. What these musicians—these business people—are doing. They’re looking at the value of their complicated music catalogs to them over the next ten to twenty years or the value to others. Given the estate benefits as well, these deals will (with luck) protect their legacy in this way:

Link to the rest at Kristine Kathryn Rusch

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.

Ed Sheeran Gets It: As He Wins His Copyright Lawsuit, He Decries ‘Culture’ Of Bogus Copyright Suits

From Above the Law:

We’ve covered a variety of recent copyright lawsuits against songs that sound vaguely similar, noting this ridiculous war on genres, and basically outlawing the idea of an homage. Even in cases where the lawsuits fail (which is frequently, though not always), it’s still an extremely costly waste of time that can still have massive chilling effects on creative people. Ed Sheeran has been sued a few times with these kinds of claims, and thankfully, just won a case in the UK.

. . . .

In case that video disappears (or you’re not able to watch it), here’s a transcript:

Hey guys. Me, Johnny, and Steve have made a joint statement that will be a press release on the outcome of this case. But I wanted to make a small video to talk about it a bit, because I’ve not really been able to talk about it whilst it’s been going on. Whilst we’re obviously happy with the result, I feel like claims like this are way too common now, and have become a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there is no basis for the claimIt’s really damaging to the songwriting industry.

There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify—that’s 22 million songs a year—and there’s only 12 notes that are available.

I don’t want to take anything away from the pain and hurt suffered from both sides of this case, but I just want to say, I’m not an entity. I’m not a corporation. I’m a human being. I’m a father, I’m a husband, I’m a son. Lawsuits are not a pleasant experience. And I hope that with this ruling, in the future baseless claims like this can be avoided. This really does have to end.

Me, Johnny, and Steve, are very grateful for all the support sent to us by fellow songwriters over the last few weeks. Hopefully, we can all get back to writing songs, rather than having to prove that we can write them. Thank you.

That’s a really fantastic statement. Copyright has long been a complete mess, and one that, in its current form, has done way more damage to creativity than helped it. And Sheeran is no stranger to recognizing this as it’s not the first time we’ve talked up his views on these things. Five years ago, we wrote about how he explained that piracy is what made his career possible. And not in the sense of this lawsuit, which falsely accused him of “pirating” someone else’s work, but he recognized that fans sharing his songs is what made it possible for him to build a devoted fan base.

Furthermore, when his big record label pulled a video down of someone singing a Sheeran cover on Facebook, causing her to lose her account for infringement, Sheeran stepped in to say he supported people singing his songs and got his label (Atlantic/Warner) to remove the copyright claim.

But this is not just about Sheeran. In the video above, he correctly notes that he’s a human being, not an entity or a corporation. But he’s also an enormously successful and wealthy human being who is able to weather these attacks more easily than nearly everyone else impacted by a copyright system run amok. For most people today’s modern copyright system is not doing anything to incentivize new creations or to “protect” artists. It’s doing the opposite. It’s great that Sheeran seems to understand all this, but it’s not enough for a few musicians (and the wider public) to recognize it.

Link to the rest at Above the Law

Copyright Fun Part 2

From Kristine Kathryn Rus ch:

What I want all of you blog readers to do is to think about possibilities. The possibilities exist on two fronts:

  1. What can you do before signing a contract to protect yourself and your copyright?

And

  1. What can you do after you signed a (bad) contract to protect yourself and your copyright?

Copyright law is a constantly changing beast, particularly here in the U.S. How we make money, as artists, is through the licensing of our copyright, not by “selling” our books. If you don’t understand copyright, guaranteed you will get screwed, maybe many times, throughout your writing career. This is why I recommend that writers buy The Copyright Handbook and read it.

I would also suggest that you learn to become a copyright geek, like Dean and I are, excited about the things you learn about copyright each and every year. Take a look at Part One of this series to see some ways to make your copyrights work for you.

This post, and the other two in this limited series, come from the copyright coolness that occurred in 2021. I was going to put this information in my year in review, but there’s simply too much of it. (If you want to read the year in review, start here.)

Copyright law in the United States comes from our founding document, the Constitution of the United States. Lawmakers have made significant changes to that original law throughout our history. Some of the changes are major. Others are minor until they’re used properly (or improperly) by someone.

We’re going to step outside of the book writing sphere to examine a few cases that have sent shivers through the spines of major corporations in 2021.

First, let’s talk about current law. The Copyright Act of 1976 gave creators the ability to reclaim their copyright, lost to a contract or some kind of agreement, 35 years after the agreement was signed.

This 35-year rule, as some call it, nearly upended the music industry as creator after creator tried to reclaim their copyrights from the music industry’s egregious contracts. Some major players in the industry stood to lose entire catalogs of works from artists like Billy Joel.

There were a lot of speculative articles written about 10 years ago, talking about the death of the larger music industry because of this. That was before the industry fought back, with all kinds of expensive lawsuits. The fight ended up being major, especially for artists who did not have the financial (or emotional) wherewithal to handle protracted litigation.

Billy Joel lost his case. Duran Duran lost theirs in 2016 and it made major international news, because the courts held that the British contract governed their copyrights, not the U.S. contracts.

After a bunch of high profile cases, the lawsuits went underground. No company wanted to be known as a company that would allow artists to reclaim their rights. So there are non-disclosures involved with artists who have sued and won, and no major press releases for artists who sued and lost.

(I went deep down a copyright rabbit hole as I was looking at these, and found a bunch of fascinating cases, including one between Cher and Mary Bono, Sonny Bono’s widow. Mary Bono is trying to use the copyright termination to stop paying Cher 50% of the Sonny and Cher royalties. It’s a complicated and probably bitter mess, and one worth keeping an eye on.)

Other industries have either fearfully watched the music industry grapple with this or chuckled behind their hands as they saw the lawsuits going by. But, they shouldn’t have chuckled, because they’re facing some serious issues on their own.

Under U.S. law, there’s a difference between works made for hire, and works that are independently created. Both can become, say, the basis of a movie or a comic book, but the question becomes who owns the copyright to the work.

A work made for hire is owned by the person who employed a writer to create the work. The word “employed” is essential here, and has specific definitions under copyright law.

Quite frankly, some of the book work that Dean and I did in the 1990s does not meet the standard for work-made-for-hire, even though the contract said the books we created were work for hire. That would take a lawsuit to settle, and there’s not enough money in that.

Some of the other books we did as work for hire (which we’ll now discuss as wfh) did fall under that definition.

Works made for hire do not (generally) fall under the 35-year rule, because the writer never owned the copyright in the first place. The writer was playing in someone else’s universe, under the guidance of the universe’s owner (or one of their employees).

But, wfh is not always easy to determine. And sometimes, big corporations just claimed product was wfh when it was not.

With that in mind…

In September of 2021, the 2nd Circuit Court of Appeals decided a case concerning the Friday The 13th franchise based on both the termination clause and California labor law. The 2nd Circuit upheld a lower court’s decision that the screenplay that Victor Miller wrote was not work for hire.

The decision had to delve into the various ways that employment was defined in California, not just the way it was defined under copyright law. In other words, the court had to determine whether or not Miller was an independent contractor when he wrote the screenplay.

If he was, then he could reclaim his rights to that screenplay.

The 2nd Circuit determined that Miller was an independent contractor. He could reclaim the rights to the Friday the 13th screenplay and the way that screenplay was used under U.S. law.

What does this mean? Well, for the franchise, it’s a scary moment (pun intended). Because he could pull their right to use that screenplay, which means they might not be able to distribute the movie any longer.

It’s doubtful that will happen, for a variety of reasons, most of them financial. As The Hollywood Reporter wrote in its coverage of the case:

And there’s still reason for settlement given that the producer retains (nonexclusive) foreign rights as well as intellectual property derived from Friday the 13th sequels, including maybe the monstrous “Jason” character that showed up later in the franchise

In other words, if there is no settlement, then someone would have to figure out how to keep the movies out there, how to handle the foreign rights that probably do not belong to Miller (or maybe that’s a separate lawsuit) and how to handle all the derivative rights to characters, merchandise, sequels and more.

I couldn’t find much on the state of the case at the moment I write this. I’d be surprised if the Friday the 13th franchise lawyers fail to settle this.

I actually hope they do settle, because that’s the best way to handle something this complicated. But the settlement will benefit Miller, because he’ll be asking for a new (and probably much bigger) payday for his 40-year-old work on the franchise.

Link to the rest at Kristine Kathryn Rusch

As regular visitors to TPV know, PG usually doesn’t include the links in the OP from which he excerpts his posts here. PG has followed this practice for many years for a couple of reasons:

  1. He would like it if his excerpts sent visitors to the location of the original post if the excerpts tweak their curiosity. PG has received more than a few emails over the life of TPV that say something like, “I couldn’t figure out why my blog traffic went crazy until I learned that you linked to a post I made there. Thanks!”
  2. He works to to be confident that his excerpts will fall under the Fair Use provisions of the United States copyright laws and similar laws in other nations.

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.

1202.09(a) Names and Pseudonyms of Authors and Performing Artists

From Trademark of Examining Procedure, July 2021:

Any mark consisting of the name of an author used on a written work, or the name of a performing artist on a sound recording, must be refused registration under §§1, 2, and 45 of the Trademark Act, 15 U.S.C. §§1051,  1052, and 1127, if the mark is used solely to identify the writer or the artist. See In re Polar Music Int’l AB, 714 F.2d 1567, 1572, 221 USPQ 315, 318 (Fed. Cir. 1983); In re Arnold, 105 USPQ2d 1953, 1957-60 (TTAB 2013) ; In re First Draft, Inc. 76 USPQ2d 1183, 1190 (TTAB 2005) ; In re Peter Spirer, 225 USPQ 693, 695 (TTAB 1985) . Written works include books or columns, and may be presented in print, recorded, or electronic form. Likewise, sound recordings may be presented in recorded or electronic form.

However, the name of the author or performer may be registered if:

  • (1) It is used on a series of written or recorded works; and
  • (2) The application contains sufficient evidence that the name identifies the source of the series and not merely the writer of the written work or the name of the performing artist.

In re Arnold, 105 USPQ2d at 1958.

If the applicant cannot show a series, or can show that there is a series but cannot show that the name identifies the source of the series, the mark may be registered on the Supplemental Register in an application under §1 or §44 of the Trademark Act. These types of marks may not be registered on the Principal Register under §2(f).

1202.09(a)(i)    Author or Performer’s Name – Evidence of a Series

In an application seeking registration of an author’s or performer’s name, the applicant must provide evidence that the mark appears on at least two different works. Such evidence could include copies of multiple book covers or multiple CD covers that show the name sought to be registered. See In re Polar Music Int’l AB, 714 F.2d 1567, 1572, 221 USPQ 315, 318 (Fed. Cir. 1983). A showing of the same work available in different media, i.e., the same work in both printed and/or recorded or downloadable format, does not establish a series.

The identification of goods need not reflect that the applicant is using the name on a series of works (either written or recorded). It is sufficient that the record contains the evidence of a series.

1202.09(a)(ii)    Evidence that the Name is a Source Identifier

The use of the author’s or performer’s name on a series of works does not, in itself, establish that the name functions as a mark. The record must also show that the name serves as more than a designation of the writer or performer, i.e. , that it also serves to identify the source of the series. See In re Arnold, 105 USPQ2d 1953, 1959-60 (TTAB 2013) (holding BLATANCY fails to function as a mark because it merely identifies the name of a performer featured on applicant’s musical recordings, and finding the evidence relating to control over the mark and the nature and quality of the goods conflicting and of uncertain meaning); In re First Draft, 76 USPQ2d 1183, 1191 (TTAB 2005) (holding pseudonym FERN MICHAELS identifies only the author and does not function as a mark to identify and distinguish a series of fictional books because the “evidence of promotion” was “indirect and rather scant,” despite applicant’s showing that the name had been used as an author’s name for 30 years; that 67 separate books had been published under the name, and approximately 6 million copies had been sold; that the book jackets listed the titles of other works by Fern Michaels and promoted her as a bestselling author; that the author had been inducted into the New Jersey Literary Hall of Fame; and that there was a www.fernmichaels.com website); In re Chicago Reader Inc., 12 USPQ2d 1079, 1080 (TTAB 1989) (holding CECIL ADAMS, used on the specimen as a byline and as part of the author’s address appearing at the end of a column, merely identifies the author and does not function as a trademark for a newspaper column).

A showing that the name functions as a source identifier may be made by submitting evidence of either: (1) promotion and recognition of the name as a source indicator for the series (see TMEP §1202.09(a)(ii)(A)); or (2) the author’s or performer’s control over the name and quality of his or her works in the series (see TMEP §1202.09(a)(ii)(B)). In re Arnold, 105 USPQ2d at 1958.

1202.09(a)(ii)(A)    Promotion and Recognition of the Name

To show that the name of an author or performing artist has been promoted and is recognized as indicating the source of a series of written works, the applicant could submit copies of advertising that promotes the name as the source of a series, copies of third-party reviews showing others’ use of the name to refer to a series of works, or evidence showing the name used on a website associated with the series of works. See In re First Draft, 76 USPQ2d 1183, 1191 (TTAB 2005) , citing In re Scholastic Inc., 23 USPQ2d 1774, 1777 (TTAB 1992) (holding THE MAGIC SCHOOL BUS functions as a mark for a series of books, where the record contained evidence of use of the designation displayed prominently on many different book covers, as well as evidence that applicant promoted the term as a series title, that others used the designation in book reviews to refer to a series of books, and that purchasers recognized the designation as indicating the source of a series of books).

1202.09(a)(ii)(B)    Control over the Nature and Quality of the Goods

Alternatively, an applicant may show that the name of an author or performing artist functions as a source indicator by submitting documentary evidence that the author/performer controls the quality of his or her distributed works and controls the use of his or her name. Such evidence would include license agreements and other documentary or contractual evidence. See In re Polar Music Int’l AB, 714 F.2d 1567, 1572, 221 USPQ 315, 318 (Fed. Cir. 1983) (holding the name of the musical group ABBA functions as a mark for sound recordings where a license agreement showed that the owner of the mark, ABBA, controlled the quality of the goods, and other contractual evidence showed that the owner also controlled the use of the name of the group).

In In re First Draft, 76 USPQ2d 1183, 1191 (TTAB 2005), the Board found that the applicant failed to meet the Polar Music test, noting that:

[W]e have neither any evidence bearing on [the question of applicant’s control over the quality of the goods] nor even any representations by counsel regarding such matters. This is in stark contrast to Polar Music, wherein there was detailed information and documentary (i.e., contractual) evidence regarding the relationship between the performing group ABBA and its “corporate entity,” as well as evidence of the control such corporation maintained in dealings with a manufacturer and seller of its recordings in the United States.

If the applicant maintains control over the quality of the goods because the goods are published or recorded directly under the applicant’s control, the applicant may submit a verified statement that “the applicant publishes or produces the goods and controls their quality.” In re Arnold, 105 USPQ2d 1953, 1958 (TTAB 2013) .

Link to the rest at Trademark of Examining Procedure, July 2021

From reading this, one might presume that the services of a trademark attorney might be useful. PG has done some trademark work in the distant past, but is not interested in doing any in the future. You’re looking for an intellectual property attorney who has registered trademarks before.

PG would be interested in the experiences of any authors who have gone through the process of trademarking their name.

What You Need to Trademark Your Personal Name

From The Balance – Small Business:

Want to trademark your name? It can be done, but first, ask yourself why you want to spend the money – and time – to trademark your name. You must also meet specific requirements to trademark your name with the U.S. Patent and Trademark Office (USPTO).

A trademark is a piece of intellectual property that allows you to “brand” something so that no one else can copy or use it. It distinguishes your company and its products from everyone else. Don’t confuse a trademark with a copyright; copyrights are for works like books, movies, and videos.

Trademarking your name gives you an additional brand and keeps others from using your name.

. . . .

People trademark their names all the time. Actors, authors, sports figures, and other celebrities often trademark their names.

For example, IPWatchdog used the example of Sarah Palin, who has trademarked her name (actually it’s a service mark, not a trademark), The category is “Educational and entertainment services, namely, providing motivational speaking services in the field of politics, culture, business, and values.”

Small Business at Chron.com says, “A person’s name can only be registered as a trademark if it is widely recognized in commerce.”

. . . .

Registering your name can provide you with added protection against cybersquatters (people who pick up domain names to confuse people and get money).

Of course, the best reason to trademark your name is to prevent others from using it. For example, Morgan Freeman trademarked his name to prevent it from being used by a company to market its products. Freeman’s trademark is listed in the category “Entertainment services, namely, live, televised, and movie appearances by a professional entertainer.”

Link to the rest at The Balance – Small Business

Before you get all excited, check out the post which follows this one chronologically.

Public Domain Day 2022

From The Duke University School of Law:

In 2022, the public domain will welcome a lot of “firsts”: the first Winnie-the-Pooh book from A. A. Milne, the first published novels from Ernest Hemingway and William Faulkner, the first books of poems from Langston Hughes and Dorothy Parker. What’s more, for the first time ever, thanks to a 2018 law called the Music Modernization Act, a special category of works—sound recordings—will finally begin to join other works in the public domain. On January 1 2022, the gates will open for all of the recordings that have been waiting in the wings. Decades of recordings made from the advent of sound recording technology through the end of 1922—estimated at some 400,000 works—will be open for legal reuse.

. . . .

Why celebrate the public domain? When works go into the public domain, they can legally be shared, without permission or fee. That is something Winnie-the-Pooh would appreciate. Community theaters can screen the films. Youth orchestras can perform the music publicly, without paying licensing fees. Online repositories such as the Internet Archive, HathiTrust, and Google Books can make works fully available online. This helps enable access to cultural materials that might otherwise be lost to history. 1926 was a long time ago. The vast majority of works from 1926 are out of circulation. When they enter the public domain in 2022, anyone can rescue them from obscurity and make them available, where we can all discover, enjoy, and breathe new life into them.

The public domain is also a wellspring for creativity. The whole point of copyright is to promote creativity, and the public domain plays a central role in doing so. Copyright law gives authors important rights that encourage creativity and distribution—this is a very good thing. But it also ensures that those rights last for a “limited time,” so that when they expire, works go into the public domain, where future authors can legally build on the past—reimagining the books, making them into films, adapting the songs and movies. That’s a good thing too! As explained in a New York Times editorial:

When a work enters the public domain it means the public can afford to use it freely, to give it new currency . . . [public domain works] are an essential part of every artist’s sustenance, of every person’s sustenance.

Just as Shakespeare’s works have given us everything from 10 Things I Hate About You and Kiss Me Kate (from The Taming of the Shrew) to West Side Story (from Romeo and Juliet), who knows what the works entering the public domain in 2022 might inspire? As with Shakespeare, the ability to freely reimagine these works may spur a range of creativity, from the serious to the whimsical, and in doing so allow the original artists’ legacies to endure.

. . . .

Books

  • A. A. Milne, Winnie-the-Pooh, decorations by E. H. Shepard
  • Ernest Hemingway, The Sun Also Rises
  • Dorothy Parker, Enough Rope (her first collection of poems)
  • Langston Hughes, The Weary Blues
  • T. E. Lawrence, The Seven Pillars of Wisdom (later adapted into the film Lawrence of Arabia)
  • Felix Salten, Bambi, A Life in the Woods
  • Kahlil Gibran, Sand and Foam
  • Agatha Christie, The Murder of Roger Ackroyd
  • Edna Ferber, Show Boat
  • William Faulkner, Soldiers’ Pay (his first novel)
  • Willa Cather, My Mortal Enemy
  • D. H. Lawrence, The Plumed Serpent
  • H. L. Mencken, Notes on Democracy

. . . .

Movies Entering the Public Domain

  • For Heaven’s Sake (starring Harold Lloyd)
  • Battling Butler (starring Buster Keaton)
  • The Son of the Sheik (starring Rudolph Valentino)
  • The Temptress (starring Greta Garbo)
  • Moana (docufiction filmed in Samoa)
  • Faust (German expressionist classic)
  • So This Is Paris (based on the play Le Réveillon)
  • Don Juan (first feature-length film to use the Vitaphone sound system)
  • The Cohens and Kellys (prevailed in a famous copyright lawsuit)
  • The Winning of Barbara Worth (a Western, known for its flood scene)

Musical Compositions

  • Bye Bye Black Bird (Ray Henderson, Mort Dixon)
  • Snag It (Joseph ‘King’ Oliver)
  • Gentlemen Prefer Blondes (Irving Berlin)
  • Black Bottom Stomp (Ferd ‘Jelly Roll’ Morton)
  • Someone To Watch Over Me (George Gershwin, Ira Gershwin)
  • Nessun Dorma from Turandot (Giacomo Puccini, Franco Alfano, Giusseppe Adami, Renato Simoni)
  • Are You Lonesome To-Night (Roy Turk, Lou Handman)
  • When the Red, Red Robin Comes Bob, Bob, Bobbin’ Along (Harry Woods)
  • Ke Kali Nei Au (“Waiting For Thee”) (Charles E. King), in 1958 renamed Hawaiian Wedding Song with new lyrics (English) by Hoffman & Manning
  • Cossack Love Song (Otto Harbach, Oscar Hammerstein II, George Gershwin, Herbert Stothart)

Link to the rest at The Duke University School of Law

Happy Public Domain Day!

From Cory Doctorow via Medium:

On January 1, 2019 something extraordinary happened. For the first time since 1998, the American public domain got bigger.

What happened in 1998? Congress — led by Rep Sonny Bono — extended the copyright on all works by 20 years. Works that had already been in the public domain went back into copyright. Works that were in copyright got an extra 20 years. The public domain…froze.
This was a wanton, destructive act. The vast majority of works that the Sonny Bono Act covered were out-of-print and orphaned, with no known owner. Putting them back into copyright for 20 years prevented their reproduction, guaranteeing that many would vanish from the historical record altogether.

As to the minuscule fraction of works covered by the Act that were still commercially viable: the creators of those works had accepted the copyright bargain of life plus 50 years. Giving them more copyright on works they’d already produced could not provide an incentive to make anything more. All it did was transfer value from the public domain into a vanishing number of largely ultra-wealthy corporate private hands.

As to living, working creators: those who’d made new works based on public domain materials that went back into copyright found themselves suddenly on the wrong side of copyright. Their creative labor was now illegal. Any working, living creator that contemplated making a new work based on material from the once-public-domain was now faced with tracking down an elusive (or possibly nonexistent) rightsholder, paying lawyers to negotiate a license, and subjecting their work to the editorial judgments of the heirs of long-dead creators.

The Sonny Bono Act is often called the Mickey Mouse Act, a recognition of the extraordinary blood and treasure that Disney spilled to attain retroactive copyright extension. This extension ensured that Steamboat Willie — and subsequent Mickey Mouse cartoons, followed by other Disney products — would remain Disney’s for another two decades.

Link to the rest at Cory Doctorow via Medium

PG would modify the factual description in the OP with a small change – The Sonny Bono Act was pushed through by California congresswoman Mary Bono (Sonny Bono’s widow and Congressional successor). Sonny served from 1995-98 and Mary, after winning a special election to become Sonny’s replacement, served from 1998-2013 after she failed to win another re-election.

Prior to getting into politics, Sonny was a musical performer, the less-talented half of Sonny & Cher.

Sonny and Cher in 1971 via Wikipedia

Sonny and Cher divorced in 1975 due to Sonny’s serial affairs with other women. Prior to marrying Sonny, his second wife, Mary, later Congresswoman Bono, had worked as a cocktail waitress and fitness instructor.

Sonny and Mary each represented the congressional district dominated by Palm Springs and nearby Palm Desert, retirement destinations for the wealthy and semi-wealthy which include a number of retired actors. Author Ann Rice (Interview with the Vampire, etc.) lived in Palm Springs until her death in 2021.

PG suggests the Bonos are yet another “only in California” stories.

Who owns how much of Harry Potter?

From The New York Times (9 February 2008):

On Friday, a lawyer named Anthony Falzone filed his side’s first big brief in the case of Warner Bros. Entertainment and J.K. Rowling v. RDR Books. Falzone is employed by Stanford Law School, where he heads up the Fair Use Project, which was founded several years ago by Lawrence Lessig, perhaps the law school’s best-known professor. Falzone and the other lawyers at the Fair Use Project are taking the side of RDR Books, a small book publisher in Muskegon, Michigan, which is the defendant.

As you can see from the titans who have brought the suit, RDR Books needs all the legal firepower it can muster.

As you can also probably see, the case revolves around Harry Potter. Rowling, of course, is the creator of the Harry Potter series – “one of the most successful writers the world has ever known,” crowed Neil Blair of the Christopher Little Literary Agency, which represents her. Warner Brothers, meanwhile, holds the license to the Harry Potter movies. And though Warner appears to be footing much of the bill, Rowling appears to be the party driving the litigation.

“I feel as though my name and my works have been hijacked, against my wishes, for the personal gain and profit of others and diverted from the charities I intended to benefit,” she said in a declaration to the court.

And what perfidious act of “hijacking” has RDR Books committed? It planned to publish a book by Steven Vander Ark, a former school librarian who for the past half-decade or so has maintained a fan site called the Harry Potter Lexicon. The Lexicon prints Harry Potter essays, finds Harry Potter mistakes, explains Harry Potter terminology, devises Harry Potter timelines, and does a thousand other things aimed at people who can’t get enough Harry Potter. In sum, it’s a Harry Potter encyclopedia for obsessive fans.

So long as the Lexicon was a Web site, Rowling looked kindly upon it; she once gave it an award and claimed to use it herself at times. But when Vander Ark tried to publish part of the Lexicon in book form – and (shudder!) to make a profit from his labors – Rowling put her foot down. She claims that she hopes to publish her own encyclopedia someday and donate the proceeds to charity; a competing book by Vander Ark would hurt the prospects for her own work.

But more than that, she is essentially claiming that the decision to publish, or to license, a Harry Potter encyclopedia is hers alone, since, after all, the characters in her books came out of her head. They are her intellectual property. And in her view, no one else can use them without her permission.

“There have been a huge number of companion books that have been published,” Blair said. “Ninety-nine percent have come to speak to us. In every case they have made changes to ensure compliance. They fall in line.” But in the case of the Lexicon, he said, “these guys refused to contact us.”

“They refused to answer any questions,” Blair said. “They refused to show us any details.”

They fall in line. There, in that one angry sentence, lies the reason that Falzone and his colleagues have agreed to help represent RDR Books. And in a nutshell, it’s why Lessig decided to start the Fair Use Project.

It’s a tad ironic that this dispute centers on a book, because ever since the recording industry began suing Napster, most of the big legal battles over copyright have centered on the Internet. The lawsuit Viacom filed against YouTube last year to prevent people from posting snippets of Viacom’s copyrighted television shows is the most obvious recent example.

But if you look a little further back, you’ll see that for a very long time now, copyright holders have made a series of concerted efforts to both extend copyright protection, and to make it an ever-more powerful instrument of control. More than a century ago, copyrights lasted for 14 years – and could be extended another 14 if the copyright holder petitioned for the extension. Today, corporate copyrights last for 95 years, while authors retain copyright for 70 years after their death. The most recent extension of copyright, passed by Congress in 1998, was driven in no small part by Disney’s desire to prevent Mickey Mouse and several of its other classic cartoon characters from falling into the public domain.

. . . .

At the same time, though, copyright holders have tried to impose rules on the rest of us – through threats and litigation – that were never intended to be part of copyright law. They sue to prevent rappers from taking samples of copyrighted songs to create their own music. Authors’ estates try to deprive scholars of their ability to reprint parts of books or articles because they disapprove of the scholar’s point of view. Lessig likes to cite a recent, absurd case where a mother put up on YouTube a video of her baby dancing to the Prince song “Let’s Go Crazy” – and Universal Music promptly sent her a cease-and-desist letter demanding that she remove the video because it violated the copyright.

There is no question that these efforts have had, as we like to say in the news business, a “chilling effect.” Roger Rapoport, who owns RDR Books, told me that ever since the case was filed, he has heard dozens of horror stories. “One university publisher told me they have given up literary criticism because of this problem,” he said.

. . . .

About a decade ago, though, Lessig decided to fight back. His core belief is that copyright protection, as he put to me, “was meant to foster creativity, not to stifle it” – yet that is how it is now being used. He fought the copyright extension of 1998 all the way to the Supreme Court. (He lost.) He founded a group called Creative Commons, which is, in a sense, an alternative form of copyright, allowing creators to grant far more rights to others than the traditional copyright system. And he founded the Fair Use Project to push back against, well, against copyright hogs like Rowling.

No one is saying that anyone can simply steal the work of others. But the law absolutely allows anyone to create something new based on someone else’s art. This is something the Internet has made dramatically easier – which is part of the reason why we’re all so much more aware of copyright than we used to be. But it has long been true for writers, film-makers and other artists. That’s what “fair use” means.

And that is what is being forgotten as copyright holders try to tighten their grip. Documentary film makers feel this particularly acutely, for instance. My friend Alex Gibney, who directed the recent film “Taxi To The Dark Side,” about torture, tried to get Fox to license him a short clip from the television series “24” to illustrate a point one of his talking heads was making about how the show portrays the use of torture at the CIA. Fox denied his request. Gibney, a fair use absolutist, used it anyway – but many filmmakers would have backed away.

Which is also why the Harry Potter Lexicon case is so important. For decades, fair use has been thought to extend to the publication of companion books that build on the work of someone else – so long as the new work adds something new and isn’t simply a rehash of the original. There are dozens of companion books to the Narnia chronicles, for instance, or the works of J.R.R. Tolkien.

. . . .

And, in a roundabout way, that gets us back what the Internet has wrought. For, as Lessig points out, “anybody who owns a $1,500 computer” can now create culture that is based on someone else’s creation. Indeed, we do all the time – on Facebook, on YouTube, everywhere on the Internet. If the creation of that content is deemed to be a violation of copyright, Lessig said, “then we have a whole generation of criminals” – which is terribly corrosive to the society. But if it is fair use, as it ought to be, then it becomes something quite healthy – new forms of free expression and creativity.

Link to the rest at The New York Times

From the U.S. Copyright Office:

More Information on Fair Use

Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.  Section 107 calls for consideration of the following four factors in evaluating a question of fair use:

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes:  Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair.  This does not mean, however, that all nonprofit education and noncommercial uses are fair and all commercial uses are not fair; instead, courts will balance the purpose and character of the use against the other factors below.  Additionally, “transformative” uses are more likely to be considered fair.  Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.
  • Nature of the copyrighted work:  This factor analyzes the degree to which the work that was used relates to copyright’s purpose of encouraging creative expression. Thus, using a more creative or imaginative work (such as a novel, movie, or song) is less likely to support a claim of a fair use than using a factual work (such as a technical article or news item). In addition, use of an unpublished work is less likely to be considered fair.
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole:  Under this factor, courts look at both the quantity and quality of the copyrighted material that was used. If the use includes a large portion of the copyrighted work, fair use is less likely to be found; if the use employs only a small amount of copyrighted material, fair use is more likely. That said, some courts have found use of an entire work to be fair under certain circumstances. And in other contexts, using even a small amount of a copyrighted work was determined not to be fair because the selection was an important part—or the “heart”—of the work.
  • Effect of the use upon the potential market for or value of the copyrighted work:  Here, courts review whether, and to what extent, the unlicensed use harms the existing or future market for the copyright owner’s original work. In assessing this factor, courts consider whether the use is hurting the current market for the original work (for example, by displacing sales of the original) and/or whether the use could cause substantial harm if it were to become widespread.

In addition to the above, other factors may also be considered by a court in weighing a fair use question, depending upon the factual circumstances. Courts evaluate fair use claims on a case-by-case basis, and the outcome of any given case depends on a fact-specific inquiry. This means that there is no formula to ensure that a predetermined percentage or amount of a work—or specific number of words, lines, pages, copies—may be used without permission.  

Please note that the Copyright Office is unable to provide specific legal advice to individual members of the public about questions of fair use. 

Link to the rest at U.S. Copyright Office

PG says that, while there are areas of legal clarity regarding what is and what is not fair use under US copyright law, the boundary between those two sets of rights includes some gray areas.

If you look at the Copyright Office explanation above, you’ll find a list of fundamental descriptions of fair use:

  • Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes
  • Nature of the copyrighted work
  • Amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • Effect of the use upon the potential market for or value of the copyrighted work

Concepts like purpose and character of the use, amount and substantiality of the portion used and effect of the use upon the potential market include a number of bright legal lines, but have also left quite a lot of gray areas that have been the subject of lots of litigation.

In the nature of litigation decisions, the more valuable the copyright, the more likely the owner of the copyright (or her attorneys) will be to carefully examine each instance where a work by another author seems similar in some ways to the original creation.

In addition to infringing the creator’s copyright, there is also an issue of trademark rights. As a general proposition, the title of a book is not protectable as a trademark. That said, “Harry Potter” is definitely a trademark and if you decide to publish a book titled, “Harry Potter and The Grinch,” you’re likely to hear from Ms. Rowling (or maybe Warner Brothers) and attorneys for Dr. Seuss Enterprises, L.P.

Here’s a link to the details about the U.S. trademark for The Grinch.

The cover version is a misunderstood musical form

From The Economist:

Chan marshall (pictured), who goes by the stage name Cat Power, has been a fixture on the American indie-rock scene since the mid-1990s. She is a highly regarded artist, praised for her sombre, powerful songwriting and sound. Her 11th album, “Covers”, a set of versions of previously recorded songs, was released this month. It will be the third such LP she’s put out, following “The Covers Record” (2000) and “Jukebox” (2008); they make up more than a quarter of her total album releases.

It is noteworthy that Ms Marshall, or any musician, makes the distinction between “covers” and “original music” at all. For the first six decades of the recorded-music era, which began in earnest in the early 20th century, there was a clear division of labour: writers wrote and singers sang. Two industries—the recording one, and the songwriting one—grew up in parallel. In America, the writing arm was nicknamed Tin Pan Alley, and the business was concentrated on a single Manhattan street. Tin Pan Alley’s early fortune lay in sheet music, and a popular song could sell in the millions.

As recorded music took over, professional songwriters remained in demand. Even the rock’n’roll era merely shifted the action 20 blocks north, to the Brill Building. Competing versions of numbers jockeyed for position in the charts; the idea that a song could belong to a particular artist, other than in a strict licensing sense, had little traction. A “standard” was just that—a song so widely performed that only a very special reading could affix it to any one artist.

Woody Guthrie and Hank Williams were prominent singer-songwriters in the early-to-mid-20th century, but both were anomalies. Two acts were chiefly responsible for a major shift in the early 1960s: Bob Dylan and The Beatles. These performers created a wider perception that the writer and the artist not only could be, but should be, one and the same. Their youthful stardom, aided by a new mass media (and television in particular), popularised the idea of the musical auteur. By 1985 Mr Dylan was in a position to boast that: “Tin Pan Alley is gone. I put an end to it. People can record their own songs now.”

This was an oversimplification. Work by Mr Dylan and the Beatles was at the time covered widely, and lucratively—in Mr Dylan’s case, often before he had released a recorded version, making him a kind of one-man Tin Pan Alley in himself. In the 2010s he recorded three consecutive sets of pre-rock’n’roll American pop standards, a loving tribute to the very songs he once claimed to have made obsolete.

This in turn raises the question: what exactly constitutes an “original”? Does a musician “cover” a songwriter, or a recording? Ms Marshall’s album features a version of “These Days”, written by Jackson Browne, and first recorded by Nico in 1967. Mr Browne would not release a version until 1973, and his iteration bore a notable resemblance to a country-rock arrangement issued by Greg Allman earlier that year. Ms Marshall’s spare, folky take steers closest to the Nico version (on which Mr Browne played a distinctive guitar part), and includes a verse Nico performed but Mr Browne later omitted. So is she covering Nico, or Mr Browne? To whom does the song “belong”?

You might argue that if it belongs to anybody, a song belongs to whoever delivers it most memorably. Elvis Presley was above all an interpreter, and a superb one. “Hound Dog”, “Blue Suede Shoes”, “Suspicious Minds” and (until Pet Shop Boys audaciously reworked it) “Always On My Mind” have long been thought of as “Elvis songs”, yet all are cover versions. Nina Simone and Johnny Cash—no mean songwriter, either of them—likewise possessed a gift for claiming spiritual ownership of any song they covered.

An outstanding cover version can wrest a song from the grasp of even the biggest stars. So commanding is Sinéad O’Connor’s “Nothing Compares To U”, for example, that it relegates the song’s author, Prince, to a footnote. Even Mr Dylan is not impervious to this phenomenon; when touring for the first time since he recorded it, he played his song “All Along The Watchtower” not in the subdued folk-pop style of the original of 1967, but as a searing blast of rock plainly indebted to the authoritative version of 1968 by the Jimi Hendrix Experience (pictured above). In effect, he was covering a cover of his own song.

Link to the rest at The Economist

PG says copyright is a wondrous and multi-faceted bundle of rights.

How to Fight Fair Use Fear, Uncertainty, and Doubt: The Experience of One Open Educational Resource

From The Journal of Copyright in Education and Librarianship:

At the launch of one of the early online open educational resources (OER) in 2002, the approach to addressing copyright was uncertain. Did the university or the faculty own their material? How would the third-party material be handled? Was all of its use considered fair use under Section 107 of the U.S. Copyright Act (Title 17, United States Code) because of its educational purpose? Or was permission-seeking necessary for this project to succeed and protect the integrity of faculty and university? For many years, this OER was conservative in its approach to third-party material, avoiding making fair use claims on the theory that it was too risky and difficult to prove in the face of an infringement claim. Additionally, being one of the early projects of its kind, there was fear of becoming a target for ambitious copyright holders wanting to make headlines (and perhaps win lawsuits). It was not until 2009 that the Code of Best Practices in Fair Use for OpenCourseWare was written by a community of practitioners who believed that if fair use worked for documentary film makers, video creators, and others (including big media), it worked in open education as well. Once this Code was adopted, universities and institutions were able to offer more rich and complete course content to their users than before. This paper explains how it happened at this early open educational resource offering.

Link to the rest at The Journal of Copyright in Education and Librarianship

PG says that whenever a group of people get together to create something – a book, a collection of stories, a computer program, a mural, etc., etc., someone should think about copyright in the finished project.

If the group is going to make their creation free to all the world forever and ever, one place to locate decent licensing agreements at no charge is Creative Commons.

Creative Commons was established about twenty years ago to “build a vibrant, collaborative global commons,” mostly, but not completely online. The principal original goal was to encourage an open internet where information and knowledge was available with no strings attached for anyone who could use a device that accessed the internet.

In connection with this goal, the organization promulgated a collection of “free, easy-to-use copyright licenses that provide a simple, standardized way to give your permission to share and use your creative work— on conditions of your choice.”

If you go Here, the Creative Commons website walks you through a quite-nice set of information and questions that lead a visitor to the Creative Commons license that will work the best for them if they want to share their creation free.

One important caveat – The Creative Commons licenses all include you making your work available to the rest of the world without the rest of the world having to pay you anything for your creations.

If you want to exert control over your creation in any material way beyond being mentioned as the creator or one of the creators in some manner a Creative Commons license is not what you want. If you want to make certain you get paid in some manner for your creation, a Creative Commons license is not what you want.

You’ll have to talk to an attorney.

Regarding the OP, the ironic thing about the creators of Open Courseware at MIT and others institutions of higher education could, at no cost to themselves, contracted the university attorney.

Every major institution of higher education and a great many not-so-major institutions (in the United States at least) has a university or college attorney who is supposed to help make sure the faculty don’t do something that’s legally stupid.

For even the dimmest of university counsel, a project whereby a group of university employees to get together with a bunch of people all over the place to create a computer program with lots and lots of information in it would have triggered a call to outside Intellectual Property Counsel who could have saved the project the sorts of problems mentioned in the OP.

U.S. District Court Grants Win to Plaintiffs in Kiss Library eBook Piracy Suit

From The Authors’ Guild:

The U.S. Court for the Western District of Washington awarded $7.8 million in statutory damages to 12 Authors Guild members, Amazon Publishing, and Penguin Random House for 52 acts of copyright infringement in a default judgment against Kiss Library, permanently shutting down the Ukraine-based ebook piracy ring. In a decisive opinion on December 20, 2021, Judge Marsha Pechman, senior district judge for the Western District, decided all claims for the plaintiffs and awarded $150,000 per infringed book, the maximum penalty allowed under U.S. law. The plaintiffs filed suit against the book piracy entity and its operators on July 7, 2020.

. . . .

“We could not be happier with the decision,” said Mary Rasenberger, CEO of the Authors Guild.” Authors rarely have the necessary resources to fight commercial-scale piracy and take on protracted litigation, so we are extremely grateful to Amazon Publishing and Penguin Random House for their collaboration on this action. Ebook and audiobook piracy impacts the ability of authors to earn a living and the ability of publishers to invest in new books that present a diversity of ideas, people and viewpoints so crucial to democracy, which is why all are working together to combat intellectual property theft. We are thrilled that the Court quickly grasped the facts and granted us each of our requests—imposing the maximum financial penalty, shutting down all Kiss-related domains, and sending a pointed message to pirated content websites.”

“Whether authors earn $500 or $5 million a year from the sales of their books, book piracy deprives them of their right to be compensated for their creative work. That’s why we felt it necessary to file suit against Kiss to send a message to piracy sites on behalf of the Guild’s 12,000 members—when you steal from one of us, you steal from us all,” said Doug Preston, one of the plaintiffs, a bestselling thriller novelist who also serves as President of the Authors Guild. “We will not stand idly by and allow criminals to profit from the illegal sale of our books in which we invest so much of our time, talents and emotional capital—robbing writers of their works not only steals money from authors and their families; it takes away a piece of the author’s inner self.”

. . . .

Owned and operated by defendants Rodion Vynnychenko and Artem Besshapochny, Kiss Library did business through Kissly.net, Libly.net, Cheap-Library.com, and dozens of other domain names that illegally sold pirated ebooks at discounted prices to unsuspecting readers. These defendants sought to avoid detection and accountability by repeatedly masking their identities; registering the scheme’s domains with false information; and propping up a network of ever-changing domains. Even after the plaintiffs filed this lawsuit, the defendants continued their evasive tactics by attempting to destroy evidence relevant to their piracy scheme and dodge service in Ukraine. Once brought to light through plaintiffs’ investigation and filings, the Court found that the defendants’ “pattern of deception and evasion,” as well as “the seriousness of the misconduct,” justified imposing maximum statutory penalties and a broad permanent injunction. (Order at 6, 13.) The Court also supported its order by recognizing the “public’s compelling interest in protecting copyright owners’ marketable rights to their work and the economic incentive to continue creating literary works.” (Order at 9 (internal quotation marks omitted).)

Link to the rest at The Authors’ Guild

Online Copyright Registration Services: Writer Beware

From Writer Beware:

In 2014, I wrote a post about Copyright Registration Online, one of many faux and exploitative copyright registration “services” that cater to writers’ anxiety about theft and plagiarism, particularly of unpublished work, by promising to register US copyright or to provide some sort of copyright verification service.

Naturally, there are fees for these services. At the time I wrote the post, Copyright Registration Online was charging $135–which was a ripoff, on two fronts. You can register copyright yourself online at the US Copyright Office for only $45. Just as important: there’s absolutely no need to register copyright for unpublished work.

Some registration services are basically pass-throughs: they do submit registration applications to the US Copyright Office, just at a seriously inflated cost. Others provide their own “registration” documentation or certificates, often based on some sort of timestamp. These are completely worthless, not just because they could easily be faked and are therefore unlikely to stand up in court, but because there is no legal substitute for registration with the US Copyright Office (in the United States, you must previously have registered your copyright in order to file an infringement action). Just like so-called poor man’s copyright, any “registration” received from a source other than the Copyright Office has zero legal validity.

So why am I dredging up old blog posts? Because Copyright Registration Online is still around, and it has seriously upped the disinformation factor.

Now also calling itself Copyright Registry or Copyright Registry Online, it’s got a spiffy new web domain, website, and eagle-and-flag logo. Services are basically the same; prices are a little higher, but not much: “registration” for a single author with a single work will set you back $144.

. . . .

Complaints at the BBB–which currently gives the company an F rating–further illustrate this point.

. . . .

By law, you own copyright from the moment you write down the words. Registration is an extra step that gives you the right to pursue an infringement claim in US court (other countries have no such requirement for filing a claim). But theft and plagiarism are vanishingly unlikely at the query stage. Reputable agents and editors won’t risk their reputations by stealing; disreputable ones aren’t interested in your work, only in your money. Infringement only becomes a danger when your work is exposed to a wide audience: in other words, published.

Link to the rest at Writer Beware

PG notes that for registrations with the US copyright office are made through the copyright.gov website. You may wish to confirm the .gov URL to make certain you haven’t clicked on one of the services about which Writer Beware warns in the OP.

Like more than a few government websites, copyright.gov is not a triumph in website design. However, if you make your way to the Registration Portal (note the .gov extension), you’re in the general area where you want to be.

Once you’re at the Registration Portal (the government’s use of “Portal” is, PG assumes, an attempt to be regarded as internet-savvy), you’ll likely have to work your way through some preliminary warnings to hunt for a blue button that promises to give you access to the “eCO” (Electronic Copyright Office, but “eCO” sounds more technical) registration system.

Once you get to eCO, you’re into full government world. You see a very simple screen with one button marked “Log in to eCo”.

Some may wonder how they are supposed to log in if they haven’t registered themselves as a user. Go ahead and click the log-in button anyway. To the best of PG’s knowledge, this is not a federal criminal offence.

When you click that button, you’ll likely see a popup warning that using browsers other than Firefox may result in a less than optimal experience. PG has found no problems (at least with the copyright website) using Chrome, but your experience may vary.

After you’ve clicked, you’ll see another page with an ID/Password form for your Copyright Office eCO credentials, which you won’t have if you haven’t signed up to obtain those credentials.

Some (many?) would-be registrants will give up at this point, but go ahead and click.

When you get to the next page, your greatest fears will be realized. Your eyes will immediately go to User/Password fill-in boxes.

Don’t panic. Instead look carefully below those prominent boxes and you will see a much-less prominent blue on dark gray link that says “If you’re a new user, click here”. If a private organization used such a design, someone would sue on behalf of those with less-than optimal vision.

If you wait too long to find the obscure link, you’ll be informed that your session has timed out and you’ll have to click on the obscure link again.

If you’ve made it this far, you should see a signup page last modified in 1981 which includes several boxes to fill with your personal information, including “Salutation”. You’ll want to click on the obscure blue-on-gray link for User ID Help to make certain you read the instructions concerning what is or is not a government-approved User ID.

You’ll also be informed that you must change your password every sixty days or “when instructed”. If it takes you longer than sixty days to write your next book, don’t worry, you’ll be instructed to change your password.

Once you stumble through the portal, you’ll be confronted with yet more things to read and fill out, but if you’ve had the patience to work your way through the eCO gate, you’ll get through the registration process as well. Just don’t schedule anything else for an hour or two. And don’t trust some organization that shows up in a Google internet search to do this for you.

99% of the time, you don’t need a lawyer to register your copyright.

Full Disclosure: PG wades through this government website mess for Mrs. PG’s books but for no one else. He’s sorry if you’re disappointed, but won’t change his mind except for people he’s known for thirty years or more and is still talking to.

Inside the Realms of Ruin

From TechCrunch:

“The Ruin stirs, and the Five Realms rumble,” a now-archived web announcement read on Thursday morning. “You are cordially invited to join New York Times bestselling and award-winning authors Marie Lu, Tahereh Mafi, Ransom Riggs, Adam Silvera, David Yoon, and Nicola Yoon in Realms of Ruin, a collaborative fantasy epic filled with dark magic, intrigue, and unique characters — launched online in a thrilling new way.”

These celebrated young adult authors shared the announcement across social media, opening a Twitter, Instagram and Discord server for fans to discuss the buzzy new project that would propel the traditional publishing industry into the new territory of Web3, an evolution of the decentralized internet that emphasizes privacy, data ownership and compensation for work — maybe even fan-made creative works.

As the catalyst for this collaborative fantasy epic, these authors would post 12 initial origin stories about their fictional universe, to which they owned the copyright. Then fans would be tasked with writing their own stories, submitting them to the Realms of Ruin universe by minting them as NFTs on the Solana blockchain. If the authors were to enjoy a fan’s story enough, they could declare it part of the project’s official canon.

Within hours, fans confronted the authors in the Discord server with their concerns about the project. If the authors are inviting fans to write fan fiction about a universe they created, who owns the derivative works? Does minting those stories as NFTs affect the copyright of those stories? And how are these concerns exacerbated given that these authors’ target audience is too young to buy cryptocurrency on platforms like Coinbase and Gemini?

Rebecca Tushnet, the Frank Stanton Professor of First Amendment Law at Harvard Law School, aptly summed up the situation. “It’s a turducken of things people don’t understand,” she said. In other words, on top of the usual NFT concerns, the team would also be facing copyright questions and confronting the historical hesitancy from fan fiction writers over monetization of their works in a commercial environment.

Along with a team of nine developers, the six young adult authors spent two months working nights and weekends to bring Realms of Ruin to life. Within hours of its announcement, the project garnered so much backlash that they pulled the plug.

. . . .

Fan fiction is a tricky, yet fertile ground for legal questions about copyright and ownership.

Sometimes, top fan fiction writers can even parlay their online success into real publishing careers. If a writer can capture the interest of tens of thousands of readers online, it’s not unreasonable to believe that, with original characters and an original story, they could do the same on The New York Times bestsellers list.

One recent example of this phenomenon is Tamsyn Muir’s “Gideon the Ninth,” published in 2019, which The New York Times called “a devastating debut that deserves every ounce of hype it’s received.” But Muir isn’t secretive that she got her start writing fan fiction. Another unabashed proponent of fan fiction is N.K. Jemisin, a MacArthur Foundation “Genius Grant” awardee who is also the only writer to win the prestigious Hugo Award for Best Novel three years in a row. From a revenue standpoint, E.L. James’ “Fifty Shades of Grey” series might be the best example of how a writer can start their career by posting derivative stories online — before the series was an international hit, it was Twilight fan fiction.

But monetizing fan fiction through online platforms is a trickier matter. For example, when Tumblr announced it would roll out Post+, a paid subscription product, the company used fan fiction writers as an example of a content creator who could profit from the product. This caused concern among writers who worried that putting a derivative work behind a paywall could land them in legal trouble.

. . . .

“My main concern was that [the Realms of Ruin project’s creators] were asking their audience to come in and write a bunch of stuff, and they would then select things to be canon in their world. And the tricky part of this is that they already made this world and copyrighted it,” said Manzano. She said it wasn’t clear if the fan fiction writers would be able to do anything more with their work or if they would be acknowledged or compensated for creating it.

TechCrunch’s source close to the project feels differently. Although the six established authors own the Realms of Ruin copyright (at least according to the archived version of the website), writers can be paid to participate in larger publishing projects where they don’t have ownership in the franchise. Over 850 “Star Trek” novels have been published, for example, but that doesn’t mean that those authors own the rights to “Star Trek.”

Harvard Law professor Rebecca Tushnet — who is a member of the legal team at the Organization for Transformative Works, which runs major fan fiction site Archive of Our Own — said that these questions would depend on what the actual contract is between Realms of Ruin and the writers.

“If they’re giving permission, there aren’t copyright infringement questions, there are ownership questions. And those would be navigated by contract. But the thing that you usually expect is that the people writing the fan works might have limited rights,” she told TechCrunch. Because the Realms of Ruin project was shut down before it officially launched, contract details weren’t available.

“The fan fiction part is probably the least interesting part about this,” added Tushnet. “It’s not unknown for authors to say, ‘I want to authorize you to play in my world, and you can even have some of the money.’ Kindle Worlds was an attempt at this, but it ultimately did not seem to be profitable, and Amazon shut it down.”

Fan creators are generally skeptical of projects like Kindle Worlds since they can seem like thinly veiled ways for corporations to profit off of these communities.

Link to the rest at TechCrunch

PG says that just because you can conceive and code something doesn’t make it a good idea.

Any time a person or entity is publishing something another person has written, there’s a legal issue over ownership of the copyright and what rights the copyright owner is granting or not granting to the publisher.

Fan fiction can be a lot of fun to read and write, but if you get your one blockbuster story idea and give it to someone else to publish someplace in cyberspace or meatspace, there are legal issues involving copyright ownership and what rights the author has granted to others. You don’t want anything hazy with respect to rights to something you’ve written. No hand-waving should be involved.

If you write something really good, haziness and hand-waving could quite possibly mean that everybody is giving a lot of their money to lawyers – many digits between the dollar sign and the decimal point. In some sorts of litigation, whoever runs out of money first loses.

Getting it right at the beginning is much, much easier and far, far cheaper.

AG Submits Comments on Press Publisher Protections

From The Authors Guild:

The Authors Guild submitted comments to the U.S. Copyright Office recommending changes to copyright law and policy to stop internet platforms like Facebook and Google from monetizing news content freely, and to give newspaper and magazine publishers more power to negotiate with platforms that aggregate news content. The comments come in response to the Copyright Office’s “Publisher Protection Study,” which seeks to understand the effects of “news aggregators” like Google and Facebook on newspapers and magazines with the goal of issuing policy guidelines to protect the industry.

The Guild’s comments emphasized that the Facebook and Google “duopoly” over the digital advertising market has siphoned revenues out of the press publishing ecosystem, leading to mass closure or consolidation in the industry. According to the Pew Center, 2,100—or about one in five—newspapers or magazines have shuttered or merged into larger entities since 2008, with advertising revenues sinking from $55 billion per year in 2005 to just $8.8 billion in 2010. The comments also underscored the impact on writers and journalists, pointing out that full-time journalism jobs had dwindled by 26% since 2008 and per-word and piece-based freelance rates were vastly lower than they were 15 years ago.

. . . .

Apart from the clear economic harm to journalists, freelance writers, and press publishers, control of the news space by internet platforms have also dealt serious blows to democratic culture. As the last four years show, when the public relies on misinformation and fake news instead of real journalism—which, unlike clickbait, takes hard work, time, and resources to produce—the cost to society are immense. 

Link to the rest at The Authors Guild

The Authors Guild Files Amicus Brief in Starz v. MGM Before Ninth Circuit in Supporting the Right to Sue for Damages for Copyright Infringement Beyond Three Year

From The Authors Guild:

In keeping with its mission to advocate for the rights of professional writers to create without interference or threat and to receive fair compensation for that work, including supporting robust copyright laws that recognize and protect the rights of creators, the Authors Guild today filed an amicus brief before the Ninth Circuit Court of Appeals in support of the plaintiff-appellee Starz in Starz Entertainment, LLC v. MGM Domestic Television Distribution, LLC, Ninth Circuit Case No. 21-55379.

Six other creator organizations joined the Authors Guild in the amicus brief: American Society of Media Photographers, Inc., The Dramatists Guild of America, the Graphic Artists Guild, the Romance Writers of America, the Songwriters Guild of America, Inc., and the Textbook & Academic Authors Association. 


The heart of the case relates to the ability of a copyright holder to collect damages for copyright infringement. While copyright holders can bring lawsuits within three years of the time they discovered the infringement – which can be years after the infringement took place – MGM is arguing that copyright holders should only be allowed to collect damages for the three-year period before the suit was brought. Such a rule would deprive copyright holders of any ability to collect damages from infringers when the rightsholder, through no fault of its own, did not become aware of the infringement for at least three years.  That rule is a radical departure from what the U.S. Copyright Act clearly states and would harm artists at a time when they are under increasing financial pressure and when infringement is already widespread and hard to police.

MGM licensed rights to certain films and television shows in its library to third parties even though Starz still held those rights based on an earlier licensing agreement with MGM. MGM claimed that, for some of those infringements, more than three years had elapsed between when the infringements occurred and when Starz discovered them, and therefore Starz was barred from collecting damages. A federal district court in California disagreed and denied MGM’s motion to dismiss, drawing on the “discovery rule,” which “operates as an exception to the general principle that damages are only recoverable for infringing acts within three years prior to filing suit.”  


Starz v. MGM may seem like a dispute between two large companies, but should the appeals court find for the defendant the ramifications would be very damaging for book authors and other individual copyright holders, especially given the huge rise in online piracy,” said Mary Rasenberger, CEO of the Authors Guild, the nation’s oldest and largest nonprofit advocacy organization for published writers with nearly 12,000 members.

“Few writers possess the resources or the ability to patrol the Internet and other spaces for infringement on an ongoing basis. They often aren’t aware that one or more piracy sites have been selling pirated copies of their books illegally for years until someone calls attention to it,” Rasenberger added.

“Imposing a strict three-year limit on damages, therefore, essentially shuts down the ability for many creators to file a lawsuit at all because few writers can afford the legal costs associated with such suits if they can’t seek restitution for book sales and royalty payments lost to piracy or other infringement. Already authors have experienced a 40 percent decline in book incomes in the past decade—categorically precluding blameless artists from collecting damages for infringements occurring more than three years ago only makes earning a living harder.”

Link to the rest at The Authors Guild

Protecting Fictional Characters Under U.S. Copyright Law

From Nolo:

Fictional characters can, under U.S. law, be protected separately from their underlying works. This is based on the legal theory of derivative copyrights. To obtain this type of protection, a creator must prove that the characters are sufficiently unique and distinctive to merit this protection.

A derivative work is protected as part of the bundle of rights given to the creator of the original work under federal law, specifically 17 U.S.C. § 106 of the Copyright Act of 1976.

. . . .

Some characters are famous beyond the specific book or movie in which they first appeared. Consider, for example, James Bond, Fred Flintstone, Hannibal Lecter, or Wonder Woman. These characters are much more than any particular film or TV episode. They are famous entities unto themselves, capable of launching franchise series.

Thus, the creator of such a character would want broad protection over the character itself, rather than merely the specific work in which the character appeared.

Judge Learned Hand of the U.S. Court of Appeals for the Second Circuit established the standard for character protection in a case called Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), in which he stated, “the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”

For example, alien characters stranded on Earth is a popular and recurring theme as portrayed in My Favorite MartianStarmanAlien NationTransformersDistrict 9Predators, and The Man Who Fell to Earth. The idea of a stranded alien character, without embellishment, is not protectable.

Here’s another example: A relatively unknown play, Lokey From Maldemar, featured an alien with powers of levitation and telepathy, stranded on earth and pursued by authoritarian characters. The playwright sued the owners of the movie E.T.—The Extra-Terrestrial, claiming that her character was infringed by the E.T. character. A federal court disagreed, ruling that that the character from Lokey was too indistinct to merit protection in Litchfield v. Spielberg, 736 F.2d 1352 (9th Cir. 1984).

However, once a stranded alien character acquires more distinctive features or aspects—for example, a big-headed, long-necked alien with a glowing finger who murmurs “Phone home”—it becomes distinct enough to merit protection and its owners can prevent others from using the character’s image and expression.

Similarly, a person with superpowers who wears a cape and fights crime is not protectable, because it is too generic. But if this hero acquires more specificity, for example by having a secret identity as a news reporter and a crush on Lois Lane, then he can become protectable under copyright law.

. . . .

Depending on a writer or illustrator’s specific industry, it’s not difficult to understand why the protection of fictional characters is such an important issue for copyright owners. Exploitation of fictional characters is a crucial source of revenue for entertainment and merchandising companies. Characters such as Superman and Batman are the foundations of massive entertainment franchises and are commonly protected under both copyright and trademark law.

The protection afforded to fictional characters sometimes clashes with the fair use right to comment upon or criticize those characters. This is particularly common in parody cases. For example, one court refused to permit an X-rated parody, Scarlett Fever, that used characters from Gone With the Wind. (Metro-Goldwyn-Mayer, Inc. v. Showcase Atlanta Cooperative Productions, Inc., 479 F.Supp. 351 (N.D. Ga. 1979).

Another court permitted publication of a novel using characters from Gone With the Wind but written from a slave’s perspective. (Suntrust Bank v. Houghton Mifflin Co., 268 F.2d 1257 (11th Cir. 2001).) The disparity in the two opinions—both based on Gone With the Wind—may be due to the fact that in one work the characters were lampooned in a broad sexual farce, while in the other the characters were used to provoke discussion about racial stereotypes.

In short, the copyright protection available to fictional characters is a complex issue with a good deal of money at stake. Courts will often weigh the fair use considerations against the rights of copyright owners to control derivative works. The more specific and less generic a particular character is, the more likely that the character can receive protection outside of the original work in which it appears.

Link to the rest at Nolo