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

Music Copyright in the Age of Forgetting

From The Ringer:

Oh“Oh my god.” These were the words of Nick Thorburn, the main creative force of the band Islands (and composer of the original Serial theme), when someone on Twitter kindly informed him in June that he had covered someone else’s song without realizing it—and released it. “Carpenter,” the third track on this year’s Islands album, Islomania, was not, in fact, written by him at all. It was essentially a cover of the 2014 Julie Byrne track “Prism Song,” which, ironically enough, starts with a musical quote, of sorts, referencing a Tim Hardin line that has seeped deep into the Western world’s musical consciousness: “If I were a carpenter …”

Thorburn explained in a statement to Stereogum that he had heard “Prism Song” years ago, likely on a streaming playlist, and decided to record a quick version of it on his phone. Then, when digging through his recordings, looking for inspiration in making an album, he found the recording, forgot its origin, and misattributed it to be from his own mind. “‘Oops’ does not suffice,” Thorburn wrote. “As is now blindingly evident, my memory has some pretty severe limits.” He took full responsibility, apologized to Byrne, and noted that she would be receiving 100 percent of the publishing rights for the song. (For her part, Byrne didn’t publicly comment; both Thorburn and Byrne declined interview requests for this article.)

This is a particularly wild story, but the nature of it is not unheard of—albeit usually in more subtle, complicated forms. The day Islomania came out this past June, Lorde admitted in an interview with Zane Lowe that the “blueprint” of her new single “Solar Power” was “Loaded,” a 1990 song from the genre-hopping Scottish band Primal Scream, which she said she had never heard before writing her song. (The implication here is that Lorde believes she and cowriter Jack Antonoff made something undeniably indebted to “Loaded,” but purely by happenstance.) At some point after “Solar Power” was made, but before it was released, someone in Lorde’s camp brought this issue up, and she addressed it head-on: “I reached out to Bobby [Gillespie, bandleader of Primal Scream], and he was so lovely about it,” Lorde told Lowe. “He was like, ‘You know, these things happen. You caught a vibe that we caught years ago.’ And he gave us his blessing.”

. . . .

Yet there was still a reason that people around Lorde brought up the issue in the first place. Historically, claims of copyright infringement—the legal issue that covers plagiarism of protected works—in music have tended to occur in situations where the melodic overlap is pretty sizable. But a 2015 ruling shook up the industry’s understanding of what constitutes a legitimate case, when Robin Thicke’s no. 1 hit, “Blurred Lines,” was found to have infringed upon Marvin Gaye’s classic “Got to Give It Up” despite the lack of a traditionally compelling musicological argument that the two songs were egregiously similar. (Nevertheless, there can be no doubt that “Blurred Lines” was inspired on a production level by “Got to Give It Up,” something cowriter Pharrell Williams plainly admitted.) This was a controversial decision, upheld on appeal in 2018, which many felt established a troubling legal precedent: that a song could be guilty of plagiarizing another song’s “feel.” It created a culture of fear, with songwriters and executives unsure of what is allowed in the act of writing and recording a song.

“People are more concerned than they were before,” says Joe Bennett, a professor at the Berklee College of Music and a forensic musicologist—someone who is hired to offer an expert opinion, either privately or in court, about similarities between two pieces of music. “I get a lot of calls from clients [lately] who want me to do a bit of preemptive work to just check that something isn’t too close to an earlier work, often inadvertently.”

We’re now squarely within a new era of music copyright litigation, signaled by a steep wave of fresh cases and settlements arriving on top of what was already a steadily rising tide. But while plagiarism has never been a larger industry issue than it is today, it also has never been more poorly defined. And given the way songwriters often borrow ideas without realizing that they’re borrowing—a documented artistic tendency that is likely increasing in frequency in our chaotic online world—this latest squall of disputes may be just the beginning of an even larger storm.

At least in the case of “Solar Power,” though, even if Primal Scream theoretically wanted to pursue litigation, the group probably would have a tough—if not impossible—road to legal victory. That’s not because the songs aren’t distinctly kindred; the outro/chorus of “Solar Power” and the main progression of “Loaded,” adjusted for key, can essentially be played over each other. But simple, repeating chord patterns (a.k.a. chord loops) like this one are, according to Bennett, not copyright protectable. “There are a bunch of chord loops that exist in the world,” Bennett explains, “and they’re standard building blocks that songwriters use.”

There are other details that might raise the eyebrows of those comparing the songs, such as the similar instrumentation in both—and the fact that the cover of Screamadelica, the album with “Loaded” on it, features an illustration of a sun, when Lorde has referred to Solar Power as being a “sun-worship album.” (OK, that one’s a stretch.) But in terms of “Loaded” being able to win against “Solar Power” in a hypothetical court of law, Bennett thinks it would be “far away from” a lock.

Part of the issue is also that it’s not clear how much of any aspect of “Loaded,” a melodically simple song with clear lineage to a variety of previous songs and genres, is undisputedly copyright protected in the first place: “Most of it is not,” says Charles Cronin, a lawyer and professor who founded the Music Copyright Infringement Resource, a comprehensive database of music copyright litigation maintained by George Washington University. “[‘Loaded’ is similar to ‘Solar Power’] rhythmically, yeah, and it has similar sounds. But musically, no, in part because I would argue that there’s so little original musical expression in either of them.”

Adding credence to this belief is the fact that “Solar Power” also has been noted for its comparability to another early-’90s hit: George Michael’s “Freedom! ’90.” (And that’s not even to mention the Lorde-acknowledged debt that “Solar Power” has to Robbie Williams’s 2000 song “Rock DJ,” which features a reference to A Tribe Called Quest’s “Can I Kick It?” that is prominently echoed in Lorde’s song.) Perhaps Lorde directly addressed the connection to “Loaded” simply because it came before George Michael’s hit—“Freedom! ’90” was released a mere eight months later, in October 1990—but the overlaps here also cannot be denied.

Broadly speaking, it’s the same chord loop and the same sunny, celebratory textures featured in “Loaded,” “Freedom! ’90,” and “Solar Power.” But at the center of all this is the fact that the progression and the “feel” in these songs is firmly rooted within the gospel tradition, and doesn’t belong to any of them. As Rembert Browne noted in Vulture in 2016, when explaining why he had such fondness for “Freedom! ’90” as a child: “It sounded like church.”

The week after “Solar Power” came out, George Michael’s estate issued a statement: “We are aware that many people are making a connection between [‘Freedom! ’90’ and ‘Solar Power’], which George would have been flattered to hear, so on behalf of one great artist to a fellow artist, we wish her every success with the single.”

Link to the rest at The Ringer

London Chef Elizabeth Haigh’s Cookbook Withdrawn After Plagiarism Allegations

From Eater London:

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

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

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

. . . .

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

Wee:

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

Haigh:

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

Wee (on transcribing her mother’s recipes):

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

Haigh:

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

Wee:

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

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

Haigh:

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

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

Link to the rest at Eater London

Are Recipes and Cookbooks Protected by Copyright?

From The Copyright Alliance:

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

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

What Copyright Law Protects

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

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

Can You Copyright a Recipe?

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

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

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

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

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

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

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

Cookbooks Can Be Protected as Copyrightable Compilations

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

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

Link to the rest at The Copyright Alliance

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

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

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

From The Guardian in 2006:

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

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

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

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

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

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

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

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

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

Link to the rest at The Guardian

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

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

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

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

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

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

Who Is the Bad Art Friend?

From The New York Times:

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

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

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

. . . .

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

. . . .

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

Editors’ Picks

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

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

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

. . . .

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

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

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

Still impressed you did this.

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

“Oh,” he said.

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

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

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

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

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

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

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

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

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

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

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

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

Why is PG posting this?

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

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

A brief tutorial:

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

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

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

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

A WORKING DEFINITION

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

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

. . . .

U.S. PARODY DECISIONS

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

A. The Second Circuit “New York” View

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

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

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

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

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

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

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

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

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

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

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

. . . .

B. The Ninth Circuit “California” View

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

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

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

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

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

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

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

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

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

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

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

The Rick Dees Case


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

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

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

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

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

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

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

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

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

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

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

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

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

PG’s comments (not legal opinions):

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

What Do Fiction Writers Owe Their IRL Inspiration?

PG note: IRL = In Real Life

From Vulture:

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

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

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

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

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

Link to the rest at Vulture

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

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

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

Save Our Books campaign

UK authors, illustrators protest mooted copyright changes

From Books+Publishing:

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

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

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

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

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

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

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

Link to the rest at Books+Publishing

Save Our Books campaign launches – June 2021

From the Publishers Association:

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

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

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

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

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

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

Link to the rest at Publishers Association

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

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

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

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

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

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

Are Fictional Characters Protected Under Copyright Law?

From Jane Friedman:

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

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

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

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

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

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

. . . .

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

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

. . . .

Public domain characters cannot be protected

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

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

. . . .

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

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

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

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

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

Link to the rest at Jane Friedman

PG is not entirely satisfied with the OP.

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

Copyright designs found weak when derived from common ideas

From Thompson Coburn LLP:

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

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

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

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

Link to the rest at Thompson Coburn LLP

Basics of Copyright 

From The Office of General Counsel, Harvard University:

What does copyright protect?

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

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

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

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

. . . .

What is “fair use”?

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

What is the test for fair use?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PG’s Thoughts

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

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

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

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

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

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

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

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

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

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

CNRS Commission Defends Roques in Response to Plagiarism Accusations

From Daily Nous:

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

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

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

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

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

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

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

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

Link to the rest at Daily Nous

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

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

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

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

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

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

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

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

The (Copyright) Trouble with NFTs

From Jane Friedman:

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

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

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

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

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

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

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

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

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

. . . .

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

Link to the rest at Jane Friedman

From The Verge:

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

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

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

Okay, let’s start with the basics:

What Is an NFT? What Does NFT Stand For?

Non-fungible token.

That doesn’t make it any clearer.

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

How do NFTs work?

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

What’s worth picking up at the NFT supermarket?

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

. . . .

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

Do people really think this will become like art collecting?

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

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

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

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

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

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

Link to the rest at The Verge

From Investopedia:

Greater Fool Theory

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

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

. . . .

Understanding the Greater Fool Theory

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

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

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

Example of the Greater Fool Theory

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

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

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

Link to the rest at Investopedia

From Wikiquote:

Unattributed Variants to Murphy’s Law

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

Link to the rest at Wikiquote

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

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

Author Complaints at City Limit Publishing

From Writer Beware:

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

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

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

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

. . . .

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

. . . .

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

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

Link to the rest at Writer Beware

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

Author copies are a large expense for the company.

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

Undercapitalized

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

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

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

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

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

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

From The Free Dictionary:

handwaving

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

. . . .

See also:

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

Link to the rest at The Free Dictionary

AAP Vows to Protect Copyright from All Challengers

From Publishers Weekly:

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

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

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

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

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

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

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

Link to the rest at Publishers Weekly

Warhol v. Goldsmith

From The Center for Art Law:

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

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

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

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

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

. . . .

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

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

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

. . . .

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

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

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

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

. . . .

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

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

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

. . . .

Fair Use Defense

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

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

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

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

. . . .

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

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

Link to the rest at The Center for Art Law

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

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

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

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

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

From the Stanford University Libraries:

What Is Fair Use?

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

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

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

Commentary and Criticism

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

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

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

Parody

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

Link to the rest at the Stanford University Libraries

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

Transformative Fair Use

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

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

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

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

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

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

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

There was a dissenting opinion in the Supreme Court case:

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

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

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

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

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

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

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

Legal/Philosophical Diversion – Feel Free to Skip

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

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

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

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

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

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

End of Diversion

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

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

Copyright Is A Question of Control

From Publishers Weekly:

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

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

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

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

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

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

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

Link to the rest at Publishers Weekly

PG doesn’t agree with everything in the OP.

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

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

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

Article I Section 8 | Clause 8

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

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

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

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

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

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

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

From Above the Law:

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

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

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

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

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

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

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

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

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

Link to the rest at Above the Law

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

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

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

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

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


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

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

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

Musée Rodin Public Establishment

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

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

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


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

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

The exemptions cover:

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

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


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

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

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

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

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

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

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

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

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

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

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

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

Meet YInMn, the First New Blue Pigment in Two Centuries

From Hyperallergic:

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

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

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

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

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

. . . .

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

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

Link to the rest at Hyperallergic

A couple of clarifications concerning the OP:

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

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

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

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

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

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

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

YInMn Blue

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

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

From The New York Times:

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

From the Kluwer Copyright Blog:

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

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

. . . .

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

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

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

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

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

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

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

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

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

‘Copyright Troll’ Liebowitz Suspended From Manhattan Court

From Bloomberg Law:

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

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

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

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

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

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

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

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

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

Mandatory Deposit of Electronic-Only Books

From The United States Copyright Office:

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

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

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

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

Link to the rest at The United States Copyright Office

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

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

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

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

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

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

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

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

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

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

Led Zeppelin Wins ‘Stairway to Heaven’ Copyright Battle

From Variety:

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

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

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

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

. . . .

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

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

Link to the rest at Variety

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here’s the link to Skidmore vs. Led Zeppelin

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

From The Verge:

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

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

. . . .

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

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

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

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

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

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

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

Link to the rest at The Verge

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

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

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

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

As mentioned, Plaintiff is a UK corporation.

Defendants are:

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

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

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

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

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

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

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

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

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

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

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

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

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

Sherlock

Publishers Are Taking the Internet to Court

From The Nation:

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

. . . .

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

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

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

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

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

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

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

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

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

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

. . . .

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

. . . .

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

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

Link to the rest at The Nation

Green Eggs and Shoes: Dr. Seuss Licenses Footwear

From Publishing Perspectives:

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

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

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

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

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

. . . .

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

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

Link to the rest at Publishing Perspectives

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

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

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

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

From The New York Times:

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

. . . .

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

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

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

. . . .

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

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

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

. . . .

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

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

. . . .

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

Link to the rest at The New York Times

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

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

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

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

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

May the 4th be with Star Wars Intellectual Property

From Suiter/Schwantz:

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

. . . .

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

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

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

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

Link to the rest at Suiter/Schwantz

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

From The Authors Guild:

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

Link to the rest at The Authors Guild

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

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

. . . .

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

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

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

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

. . . .

Applying the Harmless Error Standard to Recordation Rules

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

. . . .

Identification of Work

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

. . . .

Optional Form for Remitters

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

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

Link to the rest at The Authors Guild

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

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

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

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

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

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

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

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

1985 New York Times Bestsellers included:

THE HUNT FOR RED OCTOBER, by Tom Clancy

THE CIDER HOUSE RULES, by John Irving

CHAPTERHOUSE: DUNE, by Frank Herbert

TEXAS, by James A. Michener

LONESOME DOVE, by Larry McMurtry

SECRETS, by Danielle Steel

FAMILY ALBUM, by Danielle Steel

LUCKY, by Jackie Collins

PROOF, by Dick Francis

THE MAMMOTH HUNTERS, by Jean M. Auel

LAKE WOBEGON DAYS, by Garrison Keillor

THE TALISMAN, by Stephen King and Peter Straub

THINNER, by Richard Bachman (Stephen King)

CONTACT, by Carl Sagan

THE ACCIDENTAL TOURIST, by Anne Tyler

THE VAMPIRE LESTAT, by Anne Rice

MEXICO SET, by Len Deighton

IF TOMORROW COMES, by Sidney Sheldon

MINDBEND, by Robin Cook

THE SICILIAN, by Mario Puzo

A LIGHT IN THE ATTIC, by Shel Silverstein

SON OF THE MORNING STAR, by Evan S. Connell

LOVING EACH OTHER, by Leo Buscaglia

MOSES THE KITTEN, by James Herriot

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

THE HANDMAID’S TALE, by Margaret Atwood

ENDER’S GAME, by Orson Scott Card

THE ACCIDENTAL TOURIST, by Anne Tyler

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

SARAH, PLAIN AND TALL, by Patricia MacLachlan