This is from a federal district judge who is aggravated:
Pending now are seven administrative motions to seal covering over a hundred documents filed in connection with defendants’ summary judgment and Daubert motions, as well as documents related to the Court’s prior order on supplemental briefing (Dkts. 312, 322, 327, 328, 329, 346, 352). The Court has reviewed these administrative motions and is shocked to see the parties wish to seal such trivia as:
a. The statement Can’t wait to try it (Dkt 346-9, Exh. 16) as well as a reference to that statement in a brief (Dkt 346-3, Supp. Br. at 22);
b. Luckey’s statement in a 2012 email to Seidl that Luckey Can’t wait to get into this, very enthused along Luckey’s name, email address, and the email’s send date (Dkt. 349-37, Exh. 36);
c. Just the words attached is an invoice and From: Palmer Luckey email@example.com in a 2012 email (Dkt 346-11, Exh 25);
d. A reference in a brief that Ron Igra stated he would get rich from the success of Oculus (Dkt. 312-8, Br. at 7);
e. The words 3D is essential in an email from Seidl to Luckey (Dkt. 346-16, Exh. 54);
f. The statement Talking with John Carmack (id Software) about the possibility of designing future games for use with my open-source head mounted display design posted on social media (Dkt 349-2, Exh. 24).
This is beyond the pale. The indiscriminate use of the confidentiality stamp alone warrants the denial of the entirety of the motions. The only arguably legitimate request that the Court can so far find is a request to seal a spreadsheet containing the names and addresses of multiple uninvolved third parties (Dkt. 325-14, Exh. 87).
. . . .
The United States District Court is not a wholly owned subsidiary of either TRT or Facebook Technologies. If the parties wanted to proceed in total privacy, they should have arbitrated this dispute. Instead, they brought this dispute to a public forum that belongs to the people of the United States, not TRT or Facebook. The United States people have every right to look over our shoulder and review the documents before the Court. The standard under Kamakana is not met for any document.
The core claim was that Oculus VR used a design that founder Palmer Luckey created when he worked at Total Recall Technologies. Total Recall stated that Luckey was hired to design a virtual reality headset, for which Total Recall would have the exclusive rights. The plaintiff further alleged that Luckey took the design with him when departing the company, only to form his own company and use this design at Oculus VR.
Total Recall is owned by a company called Convergint Technologies, a systems integrator. A systems integrator is someone who puts complex computer systems together and sometimes maintains them as well. It’s a well-established business category that includes some large organizations, but there’s lots of competition from other systems integrators.
These days, virtual reality technology is close to a license to print money and Oculus VR, owned by Facebook, produces one of the top-selling VR headsets, selling for several hundred dollars apiece and a first-class ticket for a child, teenager (or adult) into the exciting world of multi-player highly-realistic virtual reality gaming.
PG isn’t familiar with the details (which are likely complex) of this case, but suspects that Total Recall would make a great deal more money for its owners if it could get a piece of Oculus VR’s pie.
To bring this back to authors and their writings, the design of the VR headset that Palmer Luckey allegedly created for Total Recall and is, presumably, related to Oculus VR’s current products in a meaningful way, is intellectual property, just like the manuscript an author creates is intellectual property.
The document that is at the core of the dispute is a written agreement between Luckey and Total Recall signed many years ago under which Total Recall claims Luckey granted it rights to intellectual property that Luckey created.
In March 2014, Facebook acquired Oculus for $2.3 billion in cash and stock.
While the details differ, the underlying creator/publisher agreement governs rights to books an author writes falls into the same category of agreements affecting a creator’s rights to use her/his creations.
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.”
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.
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.
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.
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.
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.
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.
The freedom to read is essential to our democracy. It is continuously under attack. Private groups and public authorities in various parts of the country are working to remove or limit access to reading materials, to censor content in schools, to label “controversial” views, to distribute lists of “objectionable” books or authors, and to purge libraries. These actions apparently rise from a view that our national tradition of free expression is no longer valid; that censorship and suppression are needed to counter threats to safety or national security, as well as to avoid the subversion of politics and the corruption of morals. We, as individuals devoted to reading and as librarians and publishers responsible for disseminating ideas, wish to assert the public interest in the preservation of the freedom to read.
Most attempts at suppression rest on a denial of the fundamental premise of democracy: that the ordinary individual, by exercising critical judgment, will select the good and reject the bad. We trust Americans to recognize propaganda and misinformation, and to make their own decisions about what they read and believe. We do not believe they are prepared to sacrifice their heritage of a free press in order to be “protected” against what others think may be bad for them. We believe they still favor free enterprise in ideas and expression.
These efforts at suppression are related to a larger pattern of pressures being brought against education, the press, art and images, films, broadcast media, and the Internet. The problem is not only one of actual censorship. The shadow of fear cast by these pressures leads, we suspect, to an even larger voluntary curtailment of expression by those who seek to avoid controversy or unwelcome scrutiny by government officials.
Such pressure toward conformity is perhaps natural to a time of accelerated change. And yet suppression is never more dangerous than in such a time of social tension. Freedom has given the United States the elasticity to endure strain. Freedom keeps open the path of novel and creative solutions, and enables change to come by choice. Every silencing of a heresy, every enforcement of an orthodoxy, diminishes the toughness and resilience of our society and leaves it the less able to deal with controversy and difference.
Now as always in our history, reading is among our greatest freedoms. The freedom to read and write is almost the only means for making generally available ideas or manners of expression that can initially command only a small audience. The written word is the natural medium for the new idea and the untried voice from which come the original contributions to social growth. It is essential to the extended discussion that serious thought requires, and to the accumulation of knowledge and ideas into organized collections.
We believe that free communication is essential to the preservation of a free society and a creative culture. We believe that these pressures toward conformity present the danger of limiting the range and variety of inquiry and expression on which our democracy and our culture depend. We believe that every American community must jealously guard the freedom to publish and to circulate, in order to preserve its own freedom to read. We believe that publishers and librarians have a profound responsibility to give validity to that freedom to read by making it possible for the readers to choose freely from a variety of offerings.
The freedom to read is guaranteed by the Constitution. Those with faith in free people will stand firm on these constitutional guarantees of essential rights and will exercise the responsibilities that accompany these rights.
We therefore affirm these propositions:
It is in the public interest for publishers and librarians to make available the widest diversity of views and expressions, including those that are unorthodox, unpopular, or considered dangerous by the majority.Creative thought is by definition new, and what is new is different. The bearer of every new thought is a rebel until that idea is refined and tested. Totalitarian systems attempt to maintain themselves in power by the ruthless suppression of any concept that challenges the established orthodoxy. The power of a democratic system to adapt to change is vastly strengthened by the freedom of its citizens to choose widely from among conflicting opinions offered freely to them. To stifle every nonconformist idea at birth would mark the end of the democratic process. Furthermore, only through the constant activity of weighing and selecting can the democratic mind attain the strength demanded by times like these. We need to know not only what we believe but why we believe it.
Publishers, librarians, and booksellers do not need to endorse every idea or presentation they make available. It would conflict with the public interest for them to establish their own political, moral, or aesthetic views as a standard for determining what should be published or circulated.Publishers and librarians serve the educational process by helping to make available knowledge and ideas required for the growth of the mind and the increase of learning. They do not foster education by imposing as mentors the patterns of their own thought. The people should have the freedom to read and consider a broader range of ideas than those that may be held by any single librarian or publisher or government or church. It is wrong that what one can read should be confined to what another thinks proper.
It is contrary to the public interest for publishers or librarians to bar access to writings on the basis of the personal history or political affiliations of the author.No art or literature can flourish if it is to be measured by the political views or private lives of its creators. No society of free people can flourish that draws up lists of writers to whom it will not listen, whatever they may have to say.
There is no place in our society for efforts to coerce the taste of others, to confine adults to the reading matter deemed suitable for adolescents, or to inhibit the efforts of writers to achieve artistic expression.To some, much of modern expression is shocking. But is not much of life itself shocking? We cut off literature at the source if we prevent writers from dealing with the stuff of life. Parents and teachers have a responsibility to prepare the young to meet the diversity of experiences in life to which they will be exposed, as they have a responsibility to help them learn to think critically for themselves. These are affirmative responsibilities, not to be discharged simply by preventing them from reading works for which they are not yet prepared. In these matters values differ, and values cannot be legislated; nor can machinery be devised that will suit the demands of one group without limiting the freedom of others.
It is not in the public interest to force a reader to accept the prejudgment of a label characterizing any expression or its author as subversive or dangerous.The ideal of labeling presupposes the existence of individuals or groups with wisdom to determine by authority what is good or bad for others. It presupposes that individuals must be directed in making up their minds about the ideas they examine. But Americans do not need others to do their thinking for them.
It is the responsibility of publishers and librarians, as guardians of the people’s freedom to read, to contest encroachments upon that freedom by individuals or groups seeking to impose their own standards or tastes upon the community at large; and by the government whenever it seeks to reduce or deny public access to public information.It is inevitable in the give and take of the democratic process that the political, the moral, or the aesthetic concepts of an individual or group will occasionally collide with those of another individual or group. In a free society individuals are free to determine for themselves what they wish to read, and each group is free to determine what it will recommend to its freely associated members. But no group has the right to take the law into its own hands, and to impose its own concept of politics or morality upon other members of a democratic society. Freedom is no freedom if it is accorded only to the accepted and the inoffensive. Further, democratic societies are more safe, free, and creative when the free flow of public information is not restricted by governmental prerogative or self-censorship.
It is the responsibility of publishers and librarians to give full meaning to the freedom to read by providing books that enrich the quality and diversity of thought and expression. By the exercise of this affirmative responsibility, they can demonstrate that the answer to a “bad” book is a good one, the answer to a “bad” idea is a good one.The freedom to read is of little consequence when the reader cannot obtain matter fit for that reader’s purpose. What is needed is not only the absence of restraint, but the positive provision of opportunity for the people to read the best that has been thought and said. Books are the major channel by which the intellectual inheritance is handed down, and the principal means of its testing and growth. The defense of the freedom to read requires of all publishers and librarians the utmost of their faculties, and deserves of all Americans the fullest of their support.
We state these propositions neither lightly nor as easy generalizations. We here stake out a lofty claim for the value of the written word. We do so because we believe that it is possessed of enormous variety and usefulness, worthy of cherishing and keeping free. We realize that the application of these propositions may mean the dissemination of ideas and manners of expression that are repugnant to many persons. We do not state these propositions in the comfortable belief that what people read is unimportant. We believe rather that what people read is deeply important; that ideas can be dangerous; but that the suppression of ideas is fatal to a democratic society. Freedom itself is a dangerous way of life, but it is ours.
From The US Attorney’s Office, District of Rhode Island:
The former owner of an East Providence automobile transport company . . . was arrested and charged today with allegedly executing an elaborate scheme to defraud Amazon.
It is alleged in court documents that Michael Chaves, 40, former owner of CAT Inc., executed a scheme to defraud Amazon through fraudulent transactions and theft of inventory through falsely represented returns. It is alleged that Chaves ordered thousands of products from Amazon and replaced the original products with lesser value replacements, often items different than the ones he originally ordered, before returning the packages to Amazon for refunds.
According to court documents, since March 2017, Chaves has held approximately 30 Amazon customer accounts under various names and email addresses. Over this time period, Chaves’ accounts placed approximately 10,795 orders totaling approximately $713,970.78, most of which have been refunded based on Chaves’ return of the items purchased. Chaves received a total of approximately $643,324.04 in concessions or refunds on approximately 7,450 orders, including nearly approximately 7,200 items that were physically returned to Amazon. Many of the returned items were sent back in the original packaging in an attempt to deceive Amazon’s incoming inspection process. Amazon’s standard inspection process flagged approximately 149 of the returned items as potentially fraudulent, valued at $23,872.89.
According to court documents, while investigating Chaves’ fraudulent activities associated with his now defunct automobile transport company, Internal Revenue Service Criminal Investigation Division and U.S. Department of Transportation Office of Inspector General agents executed a court-authorized search of Chaves’ home and business. At the business location, agents observed many opened and unopened Amazon packages and packaging materials. The room containing these items appeared to be a packing area for Amazon returns. The room contained a wide-ranging variety of items such as televisions, incense, European wall plugs (some for phone chargers), computer parts, small electronics, and a significant quantity of auto parts. At a later date, a United Parcel Service (UPS) driver told investigators that he would stop at Chaves’ business location every day delivering Amazon packages and picking up returns, often times dropping off an Amazon package one day and picking up the same package the next day as a return back to Amazon.
According to court documents, currently Chaves has six active Amazon accounts. The majority of Chaves’ purchases and returns consist of auto and commercial motor vehicle parts. Chaves also purchased and returned many other non-vehicle related items, including, but not limited to; electronics including cellular telephones and televisions, household items including chandeliers, closet organizers, lawn sheds, lawn mowers and vacuum cleaners. Most of these items were returned in an unsellable condition.
According to court documents, Chaves’ schemes would, at times, include replacing an original product purchased with a substitute product which, at first glance, appeared similar to the original purchase. Other returns were placed in boxes to represent the approximate weight of the original product. Among the examples cited in court documents of purchases and fraudulent returns include Chaves having ordered a commercial truck tire and sending back two pieces of wood; Chaves having ordered Apple Air Pod Pros and returning an unopened package of mini light bulbs; Chaves ordering a vehicle suspension joint and returning an oil filter wrench; and Chaves ordering a stabilizer bar link kit and returned in its place doggie treats.
Chaves was arrested today by U.S. Department of Transportation Office of Inspector General and Internal Revenue Service’s Criminal Investigations Division agents, with the assistance of East Providence Police, on a federal criminal complaint charging him with wire fraud and mail fraud.
On Friday, March 12, The U.S. District Court of Rhode Island sentenced Michael Chaves to 30 months in federal prison for operating a fraudulent product return scheme and defrauding Amazon of more than $50,000, as well as other charges including bank fraud, wire fraud, falsification of records, aggravated identity theft, and tax evasion. Amazon supported the investigation, prosecution, and sentencing.
. . . .
Amazon has teams and systems in place to proactively detect, investigate, and stop suspicious behavior and prohibited activity. Amazon has an extensive history of protecting its customers from fraud and abuse.
From The US Attorney’s Office, District of Rhode Island:
Chaves was sentenced on Wednesday by U.S. District Court Judge William E. Smith to 30 months in federal prison to be followed by three years of federal supervised release, announced Acting United States Attorney Richard B. Myrus Acting Special Agent in Charge of Internal Revenue Service Criminal Investigation Ramsey E. Covington, and Acting Special Agent-in-Charge Daniel Helzner, U.S. Department of Transportation Office of Inspector General, Northeast Region.
A restitution order will be forthcoming from the court. In addition to restitution to be paid in the fraud schemes connected to the operation of his auto transport company, the order will include restitution to be paid by Chaves to Amazon. It was alleged in court documents that Chaves defrauded Amazon through theft of inventory through falsely represented returns. It is alleged in court documents that Chaves ordered products from Amazon and, at times, replaced the original products with lesser value replacements, often items different than the ones he originally ordered, before returning the packages to Amazon for refunds.
Chaves’ alleged Amazon refund scams were discovered during the investigation by Internal Revenue Service Criminal Investigation and U.S. Department of Transportation Office of Inspector General into Chaves’ auto transport company.
PG doesn’t know the background of this particular matter, but the message from Amazon is that it watches for scams of all sorts and is capable of persuading federal law enforcement officials, including Internal Revenue Service Criminal Investigation agents (who are likely to be interested in any claim of financial fraud because fraudsters typically don’t report the fruits of their labors on their tax returns) to take the matters Amazon brings to them seriously.
IRS involvement means that, if for any reason, the criminal fraud claims fall apart, federal prosecutors can prosecute criminal charges for violations of the Internal Revenue Code.
That potential 1-2 threat is enough to persuade a lot of bad guys to plead guilty, even if they’ve managed to cover up some of the evidence of their involvement in the underlying fraud.
Amazon publicizes such prosecutions and convictions to help spread the word that anyone who would like to enjoy a richer long-term lifestyle than can be supported by their lawful labors should probably consider pursuing a softer target than Amazon in their pursuit of their goal.
If Amazon develops a reputation for providing detailed evidence to support a criminal fraud prosecution with federal and state prosecutors, District Attorneys, etc., they’ll find that almost anyone will take their call and schedule a meeting to review what Amazon has located.
It is very common for companies the size of Amazon to hire former law enforcement officials (often at higher salaries than they earned while working for their former agencies) to do this sort of work. Such men and women have a good idea about what it takes to prove a case and how to collect evidence to support criminal charges and successful prosecution of those charges.
Additionally, PG doubts Amazon’s people (unlike a few citizens without such backgrounds) ever try to mislead law enforcement officials due, in part, to the fact that everybody involved has the same backgrounds, values and character traits. They’re brothers and sisters who gain a great deal of personal satisfaction from putting bad guys away.
Literary agency Foundry Literary + Media dissolved in September 2020, and some authors had trouble getting paid, with reports of checks bouncing as early as last November The Authors Guild got involved, and some authors were subsequently paid by wire transfer, but others were not. The agency’s founders, Yfat Reiss Gendell and Peter McGuigan, split up to form their own separate agencies last year, YRG Partners and Ultra Literary.
Gendell initially blamed the problems with payments on the transition. The real cause of the situation remained unclear until January 18, 2021, when founder McGuigan filed suit against Gendell in New York Supreme Court, alleging breach of contract, fraud, and negligent misrepresentation. McGuigan says that Gendell criminally embezzled over $800,000 from Foundry accounts, made $45,000 in illegal charges to company credit cards, and even cut off McGuigan’s health insurance. McGuigan froze the company’s accounts when he began to suspect financial malfeasance, and says that’s the reason some client checks bounced. He also says he “dipped into his personal bank accounts to pay some of the authors he represents, but several remain unpaid because of Reiss Gendell’s obstinance, and complete disregard for the authors that she represents.”
McGuigan seeks repayment, over a million dollars in punitive damages, and that “an injunction or temporary receiver be placed over the operating and client funds account and that any and all money owed to any respective authors and clients of Foundry be immediately paid under the direction and oversight of the court or a temporary receiver.”
PG notes that accusations and claims of wrongful behavior are being exchanged between the agency’s two principals.
PG suggests that one of the takeaways for traditionally-published authors is to always, always, always insist on split checks in your publishing agreements.
Split checks means that every royalty payment the publisher makes on an author’s books is divided between the author and the agent (typically 15% to the agent and 85% to the author) and the publisher sends the author’s check directly to her/him and the agent’s check directly to the agency.
That way, the agency never handles money that belongs to the author.
In PG’s experience and understandings from various conversations with traditionally-published authors and other sources, agencies provide a variety of reasons why it’s a better idea for the publisher to pay the author’s share of the money directly to the agency.
Without going into such reasons, PG will say that they are not good reasons. Agents may claim that it’s important that they receive the entire check so they can properly review the royalty statement from the publisher.
PG notes that, when there is a split checks agreement, the publishing agreements the agent procures provide that the author receives 85% of the royalties and the agent receives 15% of the royalties and that each royalty check is accompanied by a copy of the royalty statement. That way, the author and the agent receive copies of the royalty statement.
PG is reliably informed that all major publishers have at least one copy machine on their premises and, generally speaking, more than one of the publisher’s employees knows how to operate the copy machine. Hence, providing two copies of the royalty statement, one for the author and one for the agent, is not generally regarded as an onerous task even by the whiniest of publishers.
One additional point involves the typical relationship between an author and a particular agent in a literary agency. Despite all sorts of agency PR, an author is typically attracted to an agency by a particular agent who is working there. Jane Agent is the reason why the author is working with the agency, not whatever claims the agency makes about itself.
If the CEO of the agency is sexually harassing the interns or spending all day in conversations with various drug dealers and Jane Agent decides to move to a better work environment, Jane’s authors should be able to follow her to a new agency and instruct their publishers to designate the new agency as the agency of record for the author, thus transferring royalty reports, payments, etc., to the new agency.
Most traditionally-published authors rely on their agents to provide them with high-quality and unbiased business advice and counsel.
Just like attorneys and accountants and doctors can be fired and replaced at will, literary agents and agencies should also be subject to firing. The author should be free to stop paying the fired parties any money not be required to entrust the former agency with any money or be tied down by continuing contractual entanglements in the future.
Attorney’s Sperling & Slater acting on behalf of three eBook buying plaintiffs are suing Amazon and the “big 5” publishers (Hachette, Macmillan, Penguin Random House, Simon & Schuster, Harpercollins) for eBook price collusion in the Southern District Court in Manhattan. These plaintiffs are deemed representative of the following class:
All persons who, on or after January 14, 2017, purchased in the United States one or more eBooks sold by the Big Five Publishers through any other retail e-commerce channel in the United States other than the Amazon.com platform.
The filing alleges that Amazon.com employs anticompetitive restraints to immunize its platform from the negative effects of the Big Five’s inflated eBook prices and that these ‘inflated prices’ are a result of the imposition by publishers of the agency pricing model.
There are several exhibits in this filing including the following:
As the following chart shows,15 the Big Five’s eBook prices decreased substantially from 2013-2014, as long as the consent decrees prevented the Big Five from interfering with retailer discounts, but they immediately increased their prices again in 2015 after renegotiating their agency agreements with Amazon and have continued to maintain supracompetitive prices
What the above chart seems to be suggesting is that eBook prices from the big five are now at a level comparable to the 2014-15 time period which is when they were lowest.
In their argument the attorneys focus on the use of ‘most favored’ pricing models which Amazon requires of its vendors. Basically no other vendor (including the publisher) can offer better prices to consumers. Due to this according to the suit, Amazon removes any opportunity for price competition and therefore perpetuates higher (anticompetitive) pricing of eBooks. As follows:
27. Amazon’s and the Big Five’s continued anticompetitive use of MFNs in the United States is astonishingly brazen, given the DOJ’s high-profile enforcement against Apple and the Big Five in 2012 and the EU’s own proceedings against the Big Five and Apple in 2011 and subsequently against Amazon in 2015 for its own use of anticompetitive MFNs in eBook sales. Despite multiple investigations and censure, Amazon and the Big Five have engaged and continue to engage in a conspiracy to fix the retail price of eBooks in violation of Section 1 of the Sherman Act.
28. Amazon’s agreement with its Co-conspirators is an unreasonable restraint of trade that prevents competitive pricing and causes Plaintiffs and other consumers to overpay when they purchase eBooks from the Big Five through an eBook retailer that competes with Amazon. That harm persists and will not abate unless Amazon and the Big Five are stopped; Plaintiffs seek a nation-wide injunction under the Clayton Act to enjoin Amazon and the Big Five from enforcing this price restraint.29.Amazon’s conduct also violates Section 2. Amazon has obtained monopoly power in the U.S. retail trade eBook market, where it accounts for 90% of all eBook sales. Through its conspiracy with the Big Five Co-conspirators, Defendant Amazon has willfully acquired its monopoly power in the U.S. retail trade eBook through anticompetitive conduct, fixing the retail price of trade eBooks and causing supracompetitive prices for eBooks sold by or through Amazon’s eBook retailer rivals. Such conduct is an abuse of monopoly power in violation of Section 2 of the Sherman Act.
First, some language clarification. As used in legal parlance, especially in antitrust matters, “MFN” refers to Most Favored Nation clauses.
The term, Most Favored Nation has its origin in international trade and tariff negotiations.
From The Balance:
Most-favored-nation (MFN) status is an economic position in which a country enjoys the best trade terms given by its trading partner. That means it receives the lowest tariffs, the fewest trade barriers, and the highest import quotas (or none at all). In other words, all MFN trade partners must be treated equally.
While international trade agreements are, at least generally, not subject to lawsuits in US courts, at some point in time, US (and perhaps other nations’) antitrust lawyers borrowed the MFN term and applied it to describe a concept in antitrust law:
From Practical Law Company:
Most favored nation clauses (MFNs), sometimes also referred to as most favored customer clauses, are agreements in which a supplier agrees to treat a particular customer no worse than all other customers (see Standard Clause, General Contract Clauses, Most Favored Customer (www.practicallaw.com/8-510-7389)). Under most MFNs, a seller agrees to provide a product or service to a buyer at a price no higher than the price it provides to any other buyer, now or during the term of the agreement. Contracting parties commonly use MFNs to:
– Reduce uncertainty about potential price fluctuations.
– Transfer risk of opportunism.
– Reduce the transaction costs of both initial and later bargaining.
While commentators and courts have found MFNs to be competitively benign in most circumstances, recent actions and comments by enforcement agencies have raised the possibility that MFNs may be found to be anticompetitive in several specific situations. This Note surveys those developments and discusses some of the risk factors that a company should consider when analyzing the legality of specific MFNs.
Long-time visitors to TPV will recall that, in 2012, an antitrust case, United States v. Apple Inc., was filed by the U.S. Department of Justice against Apple Computer and five of the six largest traditional publishers in the United States.
The suit alleged that the six defendants had violated the US antitrust laws by agreeing to set fixed prices for e-books and force Amazon to sell e-books at those prices, which were higher than the discounted prices Amazon was then charging for Big Publishing’s ebooks.
Top executives of Big Publishing had been meeting secretly for some time to decide how to keep Amazon from selling their books at a discount. Apple was planning the launch of the first iPad and the opening of its iBookstore to sell ebooks and didn’t want Amazon to offer ebooks for discounted prices.
At the iPad launch, when Apple CEO Steve Jobs was asked by a Wall Street Journal columnist how the iBookstore was going to compete with Amazon when Amazon was going to be offering ebooks for lower prices, Jobs assured the columnist that the ebook prices would be the same on Amazon as they were at the iBookstore.
Such collusive price-fixing was and is, of course, wildly illegal under US antitrust law. In PG’s transcendently-humble opinion, only rank stupidity on the part of publishers and complete arrogance on the part of Apple’s highest execs can be concluded from such a stupid move.
PG is acquainted with some attorneys who work or have worked for Apple and is confident that if Apple execs had consulted inside or outside counsel, they would have been informed that it was a dumb thing to try and had a high probability of being slipping out into the light in one way or another.
Shortly after the suit was filed, each of the publishers caved, paying a fine and agreeing never to fix ebook prices again. Apple fought the matter and lost in the trial court, the US Court of Appeals and the US Supreme Court.
With that overlong background, now we find Amazon being accused of conduct similar to Apple, in company with the same group that got into trouble with Apple.
PG’s initial reaction was that Amazon would be too smart to fall into any sort of antitrust trap of the same general type that caused Apple embarrassment and money about 9 years ago. Why collude with convicts? (that’s a little over the top, nobody went to jail)
PG hasn’t had a chance to read the Complaint in this case in any detail, but it appears that counsel for the plaintiffs is focused on Amazon’s requirement that it receive the best price that the publishers offer anyone else for ebooks it licenses. Plaintiffs’ counsel also draws a specific parallels between what it alleges Amazon’s behavior to be today and what Apple’s was in former days.
In the former antitrust case, the publishers were threatening to cut off access to their products for Amazon if it didn’t raise its prices.
PG’s has not read anything about the present claims that suggest that competitors to Amazon are being forbidden from discounting their ebooks below Amazon’s prices.
Nothing in the idea of a free market guarantees that everyone is entitled to a profit on any sale. If a competitor of Amazon wishes to acquire ebook licenses from major trade publishers and chooses to resell licenses for less than it paid for them as loss leaders in order to capture market share, there is no harm to consumers because they’re given the choice to purchase a given title at a lower price than they can from Amazon.
Amazon was reported in past times to have engaged in such discounting for various products in exactly that manner – attracting customers to its store by selling some products at a loss in order to sell other things to a customer at a small profit during the same visit or later visits when the customer returned to purchase things from Amazon.
There is a distinction between Amazon requiring that large publishers sell ebook rights to Amazon at a price that is equal to the best price the publishers offer anyone and Amazon requiring that publishers somehow force others to sell ebooks at a price no lower than Amazon sells them.
PG has digressed too long in speculation, however.
One point PG hasn’t seen mentioned anywhere else is that Amazon offers a wide range of much lower-priced ebooks from indie authors.
Forget about traditional publishing. Lots of readers enjoy buying high-quality ebooks from indie authors on Amazon because indies are willing to price their books lower than New York or London corporate publishers are.
Some buyers may also be aware that, when they buy books from indie authors, a much higher percentage of each dollar they spend on Amazon ends up in the author’s pocket than if they buy a book from a traditional publisher.
PG would argue that looking at what has happened to the ebook prices of traditional publishers with their excessive cost structures and obligations to kick lots of money upstairs to their often privately-held overseas owners is only looking at the portion of the ebook market that is in slow decline.
The growing market for indie ebooks notwithstanding, if, as one of the OP’s claims, if Amazon is using:
“‘most favored’ pricing models which” prevent any “other vendor (including the publisher)” from offering “better prices to consumers.
PG has no sympathy for Amazon and hopes it is punished for such activities.
If, on the other hand, Amazon is using its power to control its costs only (not the amount that competitors can charge for an ebook), Amazon is requiring that it be given the right to sell ebooks while paying the publisher a price that isn’t higher than the publisher is charging a competitor of Amazon to sell the same ebook, then Amazon is not demanding an uneven playing field.
In such case, Amazon is demanding a flat field, an equal cost basis upon which it it can set its own retail prices just as a competitor of Amazon can set its own retail prices.
In such case, Amazon is not saying, “You have to force any other ebook retailer to not underprice Amazon.”
Again, PG isn’t opining about the full range of ways Amazon may be accused of violating antitrust laws.
Amazon as the overwhelmingly largest seller of ebooks in the US is subject to antitrust restrictions different than Amazon as a scrappy little online bookseller.
For the record, PG is not saying that Amazon can do no wrong. Earlier in Amazon’s history Jeff Bezos was fully hands-on with a smaller company and he was able to know most of what was happening inside a smaller Amazon.
These days, a post-divorce/new girlfriend Jeff Bezos has reportedly handed off a lot of day-to-day management responsibilities to others.
While PG would like to believe that the corporate culture that Bezos impressed upon Amazon during the early and middle part of its explosive growth still governs the operations of the company, he realizes that those handling the day-to-day business decisions for the company may be motivated by other incentives.
PG has personal experience with the vast changes that can occur in an organization when the management who hired him was replaced by management with a much different outlook on business life.
You finally received the call from your agent that you’re going to be a published author.
All the hard work and months (or years) of attending workshops, writers’ groups, and revising and revising again have paid off. As excited as you may be, the next step, negotiating the publishing agreement, may give you nightmares. You’d rather sign and be done with it, but I’d think again.
The contract is written in the publisher’s favor, and if you’re not careful, it could lead to headaches down the road that can be avoided before signing.
Out of all the provisions in a publishing agreement, I’m routinely asked about the grant of rights, advances, royalties, and option clause.
. . . .
The grant of rights is the provision in your agreement that acts as a map to the rest of the contract. As the author of your book, you are given a set of exclusive rights per Section 106 of the US Copyright Act, such as having the exclusive power to:
reproduce (that is, make copies) your book;
create derivative works based on your book;
distribute your book;
publicly display your book; and
perform your book publicly (think adapting your book for the stage).
As the copyright owner, you have the power to determine who you want to transfer these rights to. To publish a book (unless you are a self-published author), you have to transfer the reproduction right above. That can happen in two ways: granting the publisher a license or assigning the publisher the reproduction right.
Licenses are rights that are granted to a third party. There are three parts to a license that you need to consider:
Exclusive licenses vs. non-exclusive licenses.
An exclusive license means that the party you are granting a right to is the only one who can execute that right. Non-exclusive licenses mean just the opposite, where you can transfer a right to multiple parties at the same time.
However, most publishers won’t accept a non-exclusive license.
Can you blame them? Why would Simon and Schuster accept a non-exclusive license, when you can turn around and go to their competitor HarperCollins and sign another license to publish your book? There would be two competing books, and no publisher wants that. Thus, most licenses you will deal with in publishing will be exclusive.
Next you’ll need to determine the territory that is best to execute those rights. In the US there are three basic types of exclusive deals:
US or North America (exclusive English language control in the US or North America)
World All Languages.
Most publishers will ask for world rights in all languages. But your agent (or lawyer) will determine what is best for your book. Perhaps your agent thinks your book may be a hit in the UK, and he or she only wants to grant the US publisher rights domestically, so he or she can negotiate a contract in the UK. Context matters.
Finally, you’ll see that the term of the license is likely for the life of the copyright in your book, which is for your entire lifetime + 70 years according to the US Copyright Act. Before you start freaking out that you’ll be under contract with the publisher until your grandkids are your age, don’t worry. There are other mechanisms, such as reversion of rights and out-of-print clauses, that can help you retain your copyright.
. . . .
Royalties and Subsidiary Rights.
The big question on everyone’s mind besides the advance: when do I get my royalties? What percentage are they? Are the numbers good?
I’m not going to go into a deep dive here, but there are a few things you need to know:
“List” royalties vs. “net” royalties. List royalties are easy to calculate in that they are based on the book’s retail price (for example, a 10% royalty on a $10.00 book is $1). However, it gets complicated when you have “net” royalties because these royalties take all of the publishers’ expenses off the top before arriving at your royalty payment. You should ask your agent or lawyer to see if they can narrow down some expenses (for example, photocopying). However, it may be difficult to do such a thing since definitions in the contract are set in stone. Instead, ask your agent to see if your net royalty percentages can be increased (an equivalent net royalty is usually twice that of the list price)
Approximate royalty and subsidiary right percentages:
Hardcover – 10% – 15%
Paperback – 6-8%
E-book – 25%
In addition to these royalties are “subsidiary rights,” which are “subsidiary” to the “primary” right of publishing your book. Some examples (and the royalty share between the author and publisher) are:
Translation – 75%/25%
Audio – 25%
Book club – 90%/10%
Performance (book-to-film) – 80%/20%
Dramatic (book-to-stage) – 80%/20%
Before giving up these rights, see if your agent (or attorney) can separately negotiate these rights for you (for example, book-to-film adaptations). This means more money and revenue streams for you.
PG notes that the author of the OP describes himself as a literary agent and a publishing attorney.
PG has had no interactions with the author and has no knowledge that he is anything but competent to act as an agent and/or an attorney.
A thought which did come to PG’s mind is whether the OP’s author acts as both an agent and an attorney for an author at the same time with respect to a single potential publishing contract.
There are different financial incentives for an agent and an attorney representing an author.
An agent doesn’t earn any money unless the author signs a publishing agreement arranged by the agent.
An attorney representing an author typically has no financial interest in the author’s decision to sign or not sign a given publishing contract. An attorney not acting as an agent has gets paid the same amount whether or not the author decides to sign the contract after hearing what the attorney says about it.
PG has no reason to believe that the author of the OP has not taken careful steps to distinguish his services as an agent from his services as an attorney for an author with respect to a prospective publishing contract.
Without thinking about this in much detail, because he has never been and never plans to be a literary agent (just a schlubby old brown-shoe lawyer), if PG were to be acting as a literary agent and an author asked PG anything but a legal question that had a clear and undisputable answer (What’s the royalty rate in the contract for ebooks? How are my ebook royalties calculated as described in the contract?), PG would be inclined to send the author to another attorney to avoid any possible appearance of a conflict of interest between PG’s role as agent and his role as attorney.
As any legal malpractice insurance company is happy to tell one and all, a conflict of interest that makes it appear that an attorney is not 100% focused on the welfare of her/his client is one of the best ways available to get a jury angry enough to hit the lawyer with a big judgement if the lawyer is trying to act in her/his personal best interests if those interests carry the slightest hint of disadvantaging a client or harming a client in any way.
PG and 100% of the other attorneys he knows well take careful steps to avoid getting involved in a matter if there is even the slightest appearance of a conflict of interest. It’s always a better idea to say, “I’m afraid I’m not able to take your case,” and, perhaps disappoint a prospective client a little than to deal with the enormous headache and emotional burden of being on the receiving end of a lawsuit from a client who believes the attorney has betrayed him/her/it.
In large law firms where it is impossible for a single attorney to know the details of the legal matters every other attorney is working on (or has worked on in the past going back almost forever), there is a meticulous firm-wide process to make certain that the firm will not have any conflict of interest if it takes on a new client or a new matter from an existing client.
PG will leave it to any others who wish to opine on the agent/attorney question.
[T]here’s a very real threat to American freelancing coming — and now is the time to organize to defeat it.
. . . .
For starters, let me introduce you to the proposed labor law that’s part of President-elect Joseph R. Biden’s platform: It’s known as The PRO Act (Stands for ‘Protecting the Right to Organize).
. . . .
The point of the bill is to clarify who is an independent contractor and who’s an employee. Luckily, you don’t have to wade through reams of legalese to get to the big problem for freelancers: The ABC Test it contains that is the proposed federal definition.
It’s right on the first page. Here’s a screenshot:
If you’re a copywriter, you should be OK here. You’re writing for a widget maker, and their primary product isn’t marketing copy. It’s widgets.
But that point “B” of the ABC Test poses a barrier to any freelancer writing for a publication. Articles are the core, ‘usual’ business of that employer. If you’re writing articles for them as a freelancer, you flunk the ABC Test.
. . . .
If you’re wondering, this ABC test for who’s an employee and who’s a contractor dates from the 1930s. There’s a more recent test for telling freelancers from employees that dates from the 1980s, and it was created by the Internal Revenue Service.
It’s been being used for tax purposes for decades — and freelancers feel it’s the rule that should be used in The PRO Act, instead of the ABC Test.
In essence, the IRS rule says independent contractors have multiple clients, and do work on their own schedule, at their own place of business, with their own tools. It’s a simple definition that’s served to clarify freelancing for decades, in tax filings.
Then, along came Uber and Lyft, and an increased focus on the ‘gig economy.’
Unions soon pointed out that it could be considered worker exploitation for drivers to risk their lives — letting strangers get into their cars which might also crash and injure them — without even the protections full-time employees enjoy, such as paid healthcare. (Though the drivers themselves said they prefer to stay freelance.)
Lawmakers started looking for ways to compel the app-based companies to make their drivers into employees, and the ABC Test reared its ugly head. (Read on below for how that worked out in California.)
Something you may have missed: The PRO Act already passed the U.S. House of Representatives, nearly a year ago. With a Republican-controlled Senate, however, the bill stalled didn’t become law.
Now that Democrats control both houses and we have a Democratic incoming president, The PRO Act is back on the table for 2021.
. . . .
Three states have put forward labor laws with the ABC Test as their guide: California, New Jersey, and New York.
California’s Assembly Bill AB5, passed in September 2019, hit freelancers out of the blue. It wasn’t publicly debated, and implementation was immediate. The result was chaos — and a lot of journalists losing freelance jobs.
To sum up a very, very long story, here in bullets is the California legal arc:
Sept. 2019: AB5 implements the ABC Test. Freelancers lose work, as confusion erupts over who can hire what sort of writer when. Particularly onerous for reporters: A specific, 35-piece limit provision that makes it impossible to be a freelance weekly columnist.
Sept. 2020: AB2257 amends AB5. Scores of carve-outs and exceptions for dozens of industries soften the damage from AB5, including removal of the 35-article cap for writers. But problems remain, including a rule that freelancers must have a contract before working. That’s difficult to pull off if you’re a journalist, photojournalist, or videographer rushing to the scene of a protest or fire. Activists note this rule amounts to an assault on independent journalism and results in the suppression of news, as all news organizations have long relied on stringers or freelancers to get news their staffers can’t access.
. . . .
Freelancers continue to press for full repeal of AB5, to resolve the confusion these three separate, and in some ways conflicting, pieces of legislation have wrought. The American Society of Journalists and Authors (ASJA) is among the organizations suing for repeal.
“AB2257 made some things worse, with provisions that only apply to freelance writers, no other type of freelancer,” notes Jo Beth McDaniel, a freelance writer who chairs the First Amendment committee for ASJA.
California’s AB5 dropped on freelancers as an unexpected A-bomb (partly because it had no public comment period). When New Jersey and New York floated similar bills after AB5 passed, Kavin says, freelance journalists were ready for them.
. . . .
“When we explained how we earn a living, and how well many of us earn,” Kavin says, “they were flabbergasted. And once they learn it, they don’t want to cause us harm. When we don’t speak up, then they just hear from those who say we’re being exploited by the gig economy.”
PG notes that he hasn’t read any of the legislation described in the OP, but does acknowledge that legislators sometimes do dumb things because they don’t understand a great deal about the complexities of the American economy.
And, in many cases, organizations hiring lobbyists to push for various types of legislation are similarly clueless about all the different ways people operate and earn their livings within a free-market (or quasi-free-market) economy. They have an itch to scratch and are so focused on the interests of their supporters, they don’t consider how proposed legislative language might impact those who have lives and economic interests that are much different than their supporters have.
Amazon.com and the “Big Five” publishers – Penguin Random House, Hachette, HarperCollins, Macmillan and Simon & Schuster – have been accused of colluding to fix ebook prices, in a class action filed by the law firm that successfully sued Apple and the Big Five on the same charge 10 years ago.
The lawsuit, filed in district court in New York on Thursday by Seattle firm Hagens Berman, on behalf of consumers in several US states, names the retail giant as the sole defendant but labels the publishers “co-conspirators”. It alleges Amazon and the publishers use a clause known as “Most Favored Nations” (MFN) to keep ebook prices artificially high, by agreeing to price restraints that force consumers to pay more for ebooks purchased on retail platforms that are not Amazon.com.
The lawsuit claims that almost 90% of all ebooks sold in the US are sold on Amazon, in addition to over 50% of all print books. The suit alleges that ebook prices dropped in 2013 and 2014 after Apple and major publishers were successfully sued for conspiring to set ebook prices, but rose again after Amazon renegotiated their contracts in 2015.
“In violation of Section 1 of the Sherman Antitrust Act, Defendant and the Big Five Co-conspirators agreed to various anti-competitive MFNs and anti-competitive provisions that functioned the same as MFNs,” the complaint states. “Amazon’s agreement with its Co-conspirators is an unreasonable restraint of trade that prevents competitive pricing and causes Plaintiffs and other consumers to overpay when they purchase ebooks from the Big Five through an ebook retailer that competes with Amazon. That harm persists and will not abate unless Amazon and the Big Five are stopped.”
. . . .
Hagens Berman sued Apple and the Big Five publishers for fixing ebook prices in 2011, in a case that would eventually lead to suits from several US states and the Department of Justice, which accused Apple of colluding in order to break up Amazon.com’s dominance in the ebook market.
Bob Dylan, David Crosby and Stevie Nicks are joining the growing ranks of artists who are signing away the publishing rights to the songs they’ve written – even though that’s widely considered to be the most lucrative aspect of the music industry.
Nicks sold an 80 percent stake in her catalog to Primary Wave, covering both her Fleetwood Mac and solo work. Financial details weren’t disclosed, but the Wall Street Journal estimates the agreement netted about $100 million. Dylan’s sale of his entire catalog of more than 600 songs to Universal Music Publishing, revealed today, is believed to be worth more than $300 million, according to the New York Times.
Modern-era changes in royalty payments and tax implications involved with estate planning are likely part of this decision-making process. Crosby, who rose to fame with other Dylan acolytes in the Byrds before co-founding Crosby Stills and Nash, also said the on-going coronavirus pandemic played a key role.
“I can’t work, and streaming stole my record money,” Crosby said via Twitter. “I have a family and a mortgage and I have to take care of them, so it’s my only option. I’m sure the others feel the same.”
Primary Wave and Universal have caused the most recent ripples, but the company making the biggest splashes in the pool is the London-based Hipgnosis Songs Fund. Founded in 2018 by artist manager Merck Mercuriadis, Hipgnosis had a market capitalization of $1.66 billion as of last week. They boast a portfolio of some 60,000 songs, including the catalogs of Journey, Blondie, Richie Sambora, Chrissie Hynde, Nikki Sixx and Steve Winwood, as well as 10 of the Top 30 most streamed songs on Spotify.
The upshot is that these arrangements mean greater exposure for acts by licensing their songs for movies, commercials, television shows and video games. With streaming services putting less money in the hands of artists, these new lump-sum deals, Mercuriadis believes, benefit them more than the corporations.
. . . .
“I’m not in the publishing business; I’m in the song-management business,” Mercuriadis told Rolling Stone. “There’s a paradigm that I’m a catalyst for changing, paradigms that have existed for decades and people think are OK and normal. … The three big recorded-music companies use their leverage of owning the song companies to ensure those companies don’t advocate for songwriters, and they push the economic improvement we’ve seen with streaming so they, not the artist, get the lion’s share of the money at the songwriter’s expense. If nothing else, we’re a catalyst for changing that.”
. . . .
Mercuriadis prefers to work with proven hitmakers who have control over their masters because it gives them greater control in the decisions, as opposed to publishing companies that took advantage of young, unsuspecting acts. “These are the houses that the artists built and paid for and therefore, if they choose to sell their house, that’s on them,” he told Complex. “I’m empowering them when I write them a check and I’m empowering them when I go after improving their place in the economic equation.”
Several years ago, PG prepared a presentation for an authors’ group and called it The Nine Worst Provisions in Your Publishing Contract. At the time, he included those items in a series of blog posts for TPV.
Today, those posts may be findable in the dusty archives of TPV, but who knows what’s happening down there? Digital termites may have invaded and chewed bits of PG’s wisdom into nothingness.
So, PG has decided to resurrect The Nine Worst Provisions and sprinkle them about on TPVx over the next couple of days.
If an author decides to publish her work with a traditional publisher, she will enter into a publishing contract.
While each contract is different and must be read from beginning to end, there are many types of clauses that will be found in most traditional publishing contracts. Some of these contract clauses are benign and others are toxic. Since toxic contract provisions are more interesting to talk about, I’ll focus on some of the worst ones I see during the course of my legal practice while representing authors.
Your Contract Lasts Forever – Life of Copyright
What is This Provision?
Virtually all publishing contracts from traditional trade publishers include a provision stating that the publishing contract will last for the life for the full term of the copyright.
In the United States, the full term of the copyright lasts for as long as the author lives plus seventy years after the author dies. Copyrights in other western countries also typically last for the life of the author plus a large number of years thereafter.
Let’s do some math.
In the United States in 2017, a thirty-year-old female can expect to live for an additional 51.9 years. A male of the same age can expect to live for 47.7 years.
If a female author signs a publishing contract that includes life of copyright provisions in 2017, that contract will last until the woman dies in the year 2068 and then 70 more years to 2138. The contract will expire more than 120 years after it is negotiated and signed.
What’s the Problem?
A typical commercial license for enterprise software will last 3-5 years. Such a license is granted by the creator of the software to someone who wants to use it. An enormous variety of business contracts other than software licenses fall into the 3-5 year range.
Why such a short time? Why not license the software for 120 years?
The answer is obvious. Things can change drastically in only a few years. The software may become much more valuable or much less valuable. The software industry may have very good reasons to adopt another business model that encompasses a different pricing structure that works better for one or both of the parties.
A contract of any type that is fair to both parties in 2017 will undoubtedly be obsolete by 2138.
Many publishing contracts signed 10-15 years ago are obsolete today because they did not make proper provisions for ebooks. However, because of the structure of many book contracts authors signed during that earlier time period, publishers held practical veto power over the author’s ability to do anything with ebooks or make any money from them other than through the original publisher.
What is a publisher going to do for an author fifty years from today? 100 years? Will anything in the book business change between 2017 and 2138?
What does it look like? (sample language)
The language setting the term of the Agreement can appear anywhere in the publishing agreement. The language can also be divided between two or more paragraphs of the agreement.
The term of this Agreement shall be for the full term of copyright available for the Work in whatever forms and places where Publisher exercised its Rights to the Work.
How do I fix it?
Fixing this language problem is simple. The contract should just state the number of years it will last.
This Agreement shall terminate five years from the effective date of this Agreement.
You and the publisher can agree on a renewal provision to extend the contract, either in the original contract or in a separate agreement.
At the end of each five year term, this Agreement shall automatically renew for an additional five years unless either party gives no less than ninety (90) days’ prior written notice to the other that the Agreement will not renew.
Rationale for Change
One of traditional publishing’s standard revenue assumptions is that almost all books will sell the most during the first one or two years following their release. Thereafter, sales will decline.
An additional fact of traditional publishing is that virtually all meaningful marketing expenditures for most books will take place during the book launch and for a few weeks thereafter.
A term of 3-5 years gives the publisher the opportunity to harvest most of the money a book will earn under traditional publishing practices.
If a book does not follow the traditional sales trajectory and seems to have an evergreen audience that will continue to earn the publisher money, the publisher can certainly negotiate with the author and offer additional payments to induce the author to not exercise the right to terminate and allow the contract to continue for an additional five years.
On the other hand, if a book enters its twilight years, it is extremely unlikely that anyone at the publisher will spend any time or money on activities designed to resurrect the book. Indeed, it is unlikely anyone at the publisher will give any thought to the book.
If rights to the book are reverted to the author, she can pursue self-publishing, seek another publisher that may be interested in spending money on a relaunch of the book and other options that will help the book find new audiences and increase the author’s income from the book.
One of the implications of a contract that can easily last well over 100 years is that, in addition to the author, all of the people who were present at the publisher when the contract was negotiated will be dead long before the contract ends. The agent who assisted the author in contract negotiation will be dead before the contract ends.
Any promises or understandings between the author and publisher which are not clearly described in the contract will be unenforceable. There may be no one living who can say that the author and publisher always operated under this implied understanding of a particular paragraph.
It is also quite possible that the publisher may no longer be owned or controlled by people who are in the publishing business. If, during the extremely long period of time covered by a term of copyright contract, the publisher runs into financial difficulties and is purchased by an individual or organization that deals in distressed assets, the new owner will interpret contract provisions in a way that benefits the owner with no consideration of its impact on the image or goodwill of what was formerly a publisher.
PG is a lawyer, but nothing you will read here is legal advice. You obtain legal advice by hiring a lawyer, not reading a blog post.
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.”
This is a little different from most of the things PG posts about, but he hopes it will be helpful for authors and others.
Doctors and Lawyers both receive specialized training which costs a lot of money, pass an exam and have to spend more money during their professional careers to to keep their knowledge regarding their fields of endeavor current.
Almost everybody goes to see a doctor once in awhile. That’s one reason why many people have health insurance via their government, employer or a private insurer. Some people do receive very large medical bills but, at least in first-world countries, this isn’t the norm.
On the other hand, a person can live a long, satisfying and fulfilling life without visiting a lawyer on a routine basis or even once. (And most “legal insurance” plans sold to individuals that PG has reviewed border on scam territory.)
So, it’s not unusual for PG or any other lawyer who doesn’t represent large organizations or rich people on an exclusive basis to have someone contact them who has never talked to a lawyer or been inside a law office before.
Here are a few tips if you don’t have much experience or any experience working with lawyers. As with everything else PG authors on TPV, these tips will include both generally-accepted ways of doing things in law offices and PG’s opinions based on his experiences over thousands of years of working as a lawyer.
No, this is not legal advice, just some information that may address some of the questions, doubts and concerns that some people feel if they haven’t worked with an attorney before and want or need to hire one.
What’s the first step?
You can ask around for suggestions for who you should call for legal advice, but, depending on who you ask, you may or may not receive a good suggestion.
Call the attorney’s office and ask whoever answers if the attorney handles problems or questions like the one you have. In some cases, a short call will confirm that a particular attorney will be able to help you or not.
If you talk to an attorney who doesn’t handle your type of problem, feel free to ask the attorney if she/he can recommend another attorney who may be able to help you. In some cases, the attorney will be able to point you in the right direction. In other cases, the attorney will genuinely not know anyone who does the sort of work you’re asking for.
It’s not impolite to ask how much something is going to cost if you hire the lawyer with whom you are speaking.
Each state has its own laws and regulations regarding lawyers and their fees, but, as a general proposition, unless a lawyer tells you that you will need to pay her/him for something and lets you know what the fee is or what hourly rate will be involved and you agree to it, you shouldn’t have to pay a fee.
Ask the question anyway – “How much will this cost” or “Will it cost me anything to tell you about my problem?”
In some cases, an attorney will be able to tell you exactly how much something will cost. In other cases, an attorney will be able to give you a high/low range within which a client’s final cost will fall.
On some matters which, because of their unusual, one-of-a-kind nature, PG has offered to make certain his legal fees won’t exceed an agreed-upon amount unless he talks with the client about those fees first. This gives the client the opportunity to change course or, in some cases, drop the matter altogether because it will end up costing more money than it’s worth.
While this will not substitute for asking how much something will cost, many attorneys do not charge a new client for a first visit.
What happens during most first visits is that the client tells the attorney what the problem is, the attorney asks some questions to make certain he/she has a good idea of what the problem is and what it will require to address the problem.
Some attorneys can help address a wide range of legal problems and others specialize in a particular field. It’s not the client’s job to know exactly what sort of attorney she/he needs. If the lawyer doesn’t handle the type of thing the client is asking about, it’s the lawyer’s job to say so. Most lawyers are very quick to share this sort of information and won’t think you’re an idiot for asking them for help. Smart lawyers treat everyone who comes to their office or calls them on the phone well. The lawyer may not be able to handle a visitor’s divorce but would be very happy to handle a visitor’s future medical malpractice claim.
Confidence and Comfort
You should feel comfortable with an attorney who you would like to help you.
This doesn’t mean you have to be best friends, but you shouldn’t feel hesitant to ask him/her any questions you have about your legal situation or the work necessary to address your concerns or problems.
If you feel an attorney is evasive or trying to hide something or entirely too slick, or not really listening to what you have to say, pay attention to that feeling. It’s important that you feel comfortable with your attorney. At a minimum, if she/he is always making you feel uncertain or worried, you’re more likely to fail to give the attorney information that is important for him/her to know.
Don’t assume your attorney will think your questions are dumb. Just ask. If they’re easy questions to answer, it will only take a moment for your attorney to answer them. PG has had more than one client ask him a question about something he had never considered before.
On more than one occasion, a question a client asked PG has lead him to look into legal issues he would not have expected to be involved in the matter the client was asking about to the client’s ultimate benefit.
Don’t do business with Jerks
This advice doesn’t just apply to choosing a lawyer, but PG will assure one and all that, just like some storekeepers and some doctors and some plumbers are jerks, some lawyers are jerks as well.
Some people think that an attorney who acts like a rabid Doberman is the best choice for handling a difficult problem. In PG’s experience, this is not the case.
There are all sorts of personalities to be found in the legal profession, but one thing that a great many types of law require is the ability of an attorney to be persuasive. Jerks tend not to be very good at persuasion.
One of PG’s college friends, an electrical engineering major, became a patent attorney. In order to become a patent attorney, one needs to have graduated from college with a technical degree prior to attending law school. It’s a part of the legal profession that includes more than a few tech geeks and not the first specialty a lot of people think of when they’re looking for a bunch of persuasive lawyers.
Over his years of practice, PG’s college friend built up one of the largest patent firms in a major midwestern city and serves as the firm’s managing partner. He was always a very nice guy. Persuasion is one of the talents he has always had. He’s smart, but not flashy or arrogant.
PG’s friend has persuaded a lot of smart patent attorneys to join his firm. He has persuaded many more than one patent examiner to approve a patent claim that the examiner first questioned. He has persuaded lots of judges that his client didn’t infringe a patent or that someone else did infringe a patent owned by one of his clients.
The majority of all contested cases and virtually all contract negotiations are resolved via a negotiated compromise.
Such a compromise or settlement may not satisfy each and every desire of the litigants, but it provides each one with a certain resolution and may be more than a judge would have ordered had there been a trial. A settlement also avoids the emotional toll which a hotly-contested trial will take on both sides of a disagreement.
Without the agreement of both parties followed by their signature on a contract that accurately represents that agreement, there would be no contract. Negotiating power may differ, but, ultimately the parties need to agree.
There’s an old lawyers’ saying that a good settlement is better than a good lawsuit.
The process of coming to an agreement about contract terms or reaching a settlement of a dispute is a negotiation between the attorneys representing people or organizations whose interests and objectives are not exactly the same. It inevitably involves give and take, sharing information and more than a little persuasion of opposing counsel to move toward a mutually-acceptable middle ground. On some occasions, it can involve an attorney persuading her/his client that a settlement proposal is a better and safer idea than a court battle or a compromise on contract terms is better than no contract at all.
That said, there are some occasions when no contract is better than a bad contract.
PG has seen way more than one lawsuit that was an excellent candidate for a mutually-acceptable settlement that went to trial because one of the attorneys was a jerk. On way more than one occasion, the jerk-attorney’s client received a less satisfactory result from a judge and/or jury than the client was offered during settlement discussions.
A jerk attorney can scuttle a business negotiation just as effectively and thoroughly as he/she can scuttle a settlement negotiation.
No, the heading is not a contradiction in terms.
Attorneys are bound not only by the laws that apply to everyone, but also by a code of legal ethics. That code may vary a bit from state to state, but the same general principles apply.
If an attorney violates the rules of legal ethics, one or more of the bar associations to which she/he belongs may institute an ethics investigation. One of the outcomes that can result from a finding that an attorney has violated the rules or code of legal ethics is that the attorney is disbarred and cannot practice law within the jurisdiction. If an attorney is a member of the bar in more than one state, disbarment information is distributed to the other states where the attorney is licensed to practice and disbarment in those states is quite likely.
The bottom line on Legal Ethics is that, in addition to obeying the laws of the state and nation, the attorney must abide by the rules of legal ethics if he/she wishes to continue to practice law.
If you meet with an attorney who indicates she/he is willing to violate the rules of legal ethics, PG always advises running out of the office as quickly as possible.
Some Legal Ethics Rules that may interest Clients or Prospective Clients Despite not being Intuitively Obvious to Non-Lawyers
The attorney is required to be competent with respect to the services provided to a client, to have the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
With a handful of limited exceptions, an attorney is required not to disclose confidential information disclosed to the attorney by a client without the client’s consent.
Note – This relates to confidential information. If a client gives her/his attorney information such as a home address, absent very unusual circumstances, this isn’t confidential information because other people know the address, it is listed on government records, etc. If a client gives an attorney confidential information, then gives the same information to a group of friends who promise to keep the secret, absent very unusual circumstances, this isn’t confidential information because other people know of the information.
Note – This obligation to not disclose confidential information continues after the attorney finishes his/her services to the client.
An attorney is not permitted to represent a client if such representation would represent a conflict of interest with the attorney’s representation of another client.
If an attorney is representing Party 1 in a contract negotiation for an agreement with Party 2, the attorney cannot also represent Party 2 in that contract negotiation.
Sometimes, PG is an overflowing fount of tips, but he’s run out of gas on the topic of how to talk to a lawyer, at least for the moment.
There are several attorneys who visit TPV on a regular basis, in addition to those visitors to TPV who had the good sense not to go to law school, PG invites any attorney visitors to add their own tips about dealing with lawyers in the comments.
It happens all the time—you and someone you know disagree about something more important than who has the best curry in town, and you need to hash it out. Whether it’s a peer, your boss, your landlord, or your kid’s teacher, you want to err on the side of delicacy and professionalism.
So how do you do that in a way that’s respectful—and ultimately productive? You want to make your perspective clear, confident, and compelling without anyone feeling attacked or at cross purposes. Below, we’ll suggest a few handy phrases and strategies to help you disagree respectfully.
. . . .
Is this the place?
Occasionally, the best way to respectfully disagree isn’t in writing at all. A live conversation may be a better way to ask and answer questions, exchange thoughts, and build consensus. Consider this before getting carried away with a long draft enumerating your righteous points.
It may even turn out what seemed like a disagreement was more of a misunderstanding. Phew.
. . . .
Keep it tight; empathize
Suppose your landlord emails to say while they’d hoped to upgrade your kitchen windows next month, it’s now looking more likely the month after. You could detail your displeasure in a three-page tirade, but that sounds exhausting and may make you seem irrational. One or two sentences should suffice:
“Thanks for the update, Daryl. That’s later than we’d hoped, and I don’t imagine having this process drag on is any fun for you, either.”
Note how that last part acknowledges Daryl has feelings and a point of view in this, too. This shows respect and is key to resolving your disagreement—as is this next item.
. . . .
Ask questions; empathize some more
Questions can politely point to what you want without seeming unduly demanding or unkind. Picking up where we left off with your landlord above, you might next ask this:
“Is there any way to expedite the installation? If not, could we negotiate a reduction to our rent or our portion of the heating bill in the meantime, since our kitchen is so drafty?”
Questions also keep the conversation moving forward and show you value the other person’s input. And if you’re worried the many questions you’re asking will become annoying, a concise way to acknowledge as much is, “Not to belabor this, but…” (That said, do try to read the vibe and avoid belaboring anything you don’t have to.)
PG completely endorses the approaches Grammarly recommends.
Unless you suspect a dispute may be coming down the road.
PG isn’t talking about a polite disagreement about when the new stove will be installed, but rather what happens if the new stove is never installed or if it’s installed by an idiot and starts a fire.
In other words, if some sort of a legal dispute is foreseeable.
If there’s a fight that ends up in Small Claims Court or if each side lawyers-up, a statement made for the purpose of smoothing ruffled feathers might be subject to a different interpretation.
In social situations, when discussing a past event with friends, PG might be inclined to say something like, “I might be wrong, but I remember that Chipper had too much to drink and took the first swing, but perhaps I’m confused about what happened.”
If PG were later asked about Chipper, his state of mind and what he did in some sort of formal setting, perhaps with a judge nearby, if he said something like, “Chipper was drunk and tried to punch Buzz in the nose,” Chipper’s counsel might ask if PG had admitted he might be confused or wrong on a prior occasion.
Scheduled to address an October 15 discussion at Frankfurter Buchmesse on the freedom to publish, a co-founder of the 2020 Prix Voltaire-winning Liberal Publishing House has been arrested. An alert from Amnesty International issued within an hour of this writing warns that Pham Doan Trang is “at grave risk of torture.”
Amnesty’s director of campaigns, Ming Yu Hah, says that Pham Doan Trang “may face up to 20 years in prison” as “an internationally-recognized author and human rights defender who has been repeatedly targeted by the Vietnamese authorities solely for peacefully exercising her right to freedom of expression.”
. . . .
One of the participants in the upcoming event at Frankfurt, Will Nguyen, has tweeted out a letter left by Pham Doan Trang in case of her detention. In “Just in Case I Am Imprisoned,” she writes, in part, “If prison is inevitable for freedom fighters, if prison can serve a pre-determined purpose, then we should happily accept it.”
. . . .
“The men and women who work for the Liberal Publishing House every day risk their freedom and even their lives just to publish books. The award that we receive today does not just recognize our tireless efforts but it represents the bravery of tens of thousands of Vietnamese readers who have been harassed, who have been arrested, and interrogated simply for reading our books.”
PG suggests we all remember Pham Doan Trang in our thoughts and prayers and be thankful that many of us live in countries like the United States whose First Amendment to its Constitution reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
and the European Union, within which Article 11 of the Charter of Fundamental Rights applies. Article 11 reads as follows:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
This also means the freedom and pluralism of the media shall be respected.
PG was going to insert similar statements concerning freedom of expression in the UK and Canada, but his research did not locate any similar statement that does not include some parliamentary or judge-made exceptions.
It appears that libel and slander laws (which are also present in the United States) have been and, apparently, continue to be usable as a bludgeon to constrain freedom of expression to a greater extent than similar laws can be applied for such purposes in the US.
PG is happy to be corrected or have his understanding clarified by those who know more about this subject in Canada and the UK.
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.
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:
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.
Over many years of practicing law at a very retail level (unlike what he does today), PG developed a couple of aphorisms for his own law business and has since concluded they apply on a broader scale:
Don’t do business with crazy people.
Don’t do business with crooks (unless you practice criminal law and get paid in full up front).
In a small-town law practice, all sorts of people walk in through the door. PG always hired the smartest secretaries/paralegals he could find and paid the good ones more than they could earn anywhere else in the local economy so they would stick around. These wonderful women spared PG a great many encounters with crazy people. (PG wasn’t biased against men, but none ever applied.)
Once in awhile, a crazy person would slip by PG’s sharp watchdogs, however. (A lawyer friend once told him, “The problem with fools is that they can be so ingenious.” Ditto for crazy people.)
On a couple of occasions, a crazy person who slipped by the support staff also eluded PG’s crazy person screen. On a couple of other occasions, the Legal Aid office asked PG to help a poor unfortunate crazy person and PG agreed, sight unseen.
(Legal Aid is a generic name for a variety of organizations in the United States that help provide legal assistance for those who need it and can’t afford an attorney. In many cases, Legal Aid staff attorneys are able to provide the needed help. For other cases, staff attorneys don’t have the necessary expertise or aren’t able to solve the problem for other reasons and practicing attorneys are asked to help, either for no fee or for a fee that Legal Aid pays that is much lower than the attorney would ordinarily charge. Legal Aid organizations generally limit their services to civil matters while Public Defenders, paid by the local, state or federal government, represent criminal defendants who are indigent and unable to afford private counsel.)
While crazy clients make for some colorful war stories that lawyers swap at bar association dinners, they are apt to consume an enormous amount of time and effort on the part of counsel and staff and generally disrupt what is already a very busy business environment. (One crazy client of PG decided she would occupy PG’s waiting room until he agreed to speak with her at length for the thousandth time about what a terrible person her estranged husband was, a topic that wasn’t relevant to the division of marital property under state law. After efforts to persuade her to depart failed, the local police were called and the client screamed, “Rape!” over and over again as she was forcibly removed from PG’s office.)
This long, long prelude to PG’s equivalent advice to authors is over.
Don’t do business with a crooked publisher.
Don’t sign long-term publishing agreements with a small-time publisher, regardless of how pleasant he or she is, that will tie up your books for a long, long time unless you don’t really care much about your book or receiving many royalties from its sales.
Don’t do business with an incompetent publisher, regardless of how well-meaning the publisher may seem.
PG will speak briefly [correction – not very briefly at all] about incompetent publishers, based upon a recent encounter about which he cannot divulge details because of obligations of confidentiality to a client.
To the best of PG’s knowledge, there is no law or regulation in the United States that places any limitation on whoever can call themselves a publisher. An individual who has spent her entire adult life as a plumber can retire from plumbing one day and open Plumber’s Publishing the next morning.
There are a surprising number of people who do something like PG’s plumbing hypothetical in the United States. Sometimes a printer or someone who has been in the printing business will decide to become a publisher. Sometimes, the owner of a successful bookstore expands into publishing. Both these people know may be an expert on an aspect of the book business, but that doesn’t make them knowledgeable enough to become a reliable publisher.
While PG takes religion in general and his personal religious beliefs in particular seriously, he doesn’t hesitate to say that more than a few religious publishers fall into this don’t-know-much-about-publishing basket.
One of the common practices of incompetent publishers is to take a copy of a publishing agreement from another incompetent publisher, change the name of the publisher to Plumber’s Publishing, and call it their own.
Then, just like the incompetent publisher before them, Plumber’s Publishing starts rewriting this and adding that.
In the end, an unwitting author is presented with the 15th generation of a publishing agreement that may not have been particularly well-written by the original creator, lawyer or not, and certainly has not been improved by the tweaks and the tweaks-of-tweaks that it has undergone since then.
An unwitting author may believe that a legal document with Plumber’s Publishing Publishing Contract at the top is an official and reliable publishing agreement, especially when Jane Plumber says, “This is our standard publishing contract.”
What reasonable person would question a “Standard Contract” fresh off a cheap inkjet printer?
If an author is smart enough to organize and write a decent book, that author likely possesses a higher level of general intelligence than Jane Plumber does.
PG has seen enough publishing contracts to assure one and all that there is no “Standard Publishing Contract.”
A Random House imprint has a Standard Contract that is regularly modified by savvy lawyers or agents working with an author.
A Simon & Schuster imprint has a Standard Contract that is not the same as a Random House Standard Contract. Simon & Schuster’s Standard Contracts are regularly modified by savvy lawyers or agents working with an author.
As PG has said on more than one previous occasion, if you sign a bad rental contract for an apartment, it may cost you some money, but it won’t last forever. If you sign a bad purchase agreement to buy an automobile, it may cost you some money, but it won’t last forever.
Most unfortunately, a bad publishing contract and 99% of “Standard Publishing Contracts” will last forever, absent expensive legal interventions after the contract is signed.
This is because, in dull legalese, most book publishing contracts give the publisher the exclusive right to publish the book “for the full term of the copyright” or something similar.
Under current US copyright law, “the full term of the copyright” is the rest of the author’s life plus 70 additional years. Copyrights last for similar periods of time in other major Western nations.
Everyone currently working for the publisher will almost certainly be dead long before the “Standard Publishing Contract” expires. The current owners of the publisher will almost certainly be dead before the contract expires.
Anyone working for the publisher can quit and go to work somewhere else, taking their accumulated talents and abilities with them.
But the author can’t “quit” the “Standard Publishing Contract”.
The best book the author has ever written or will ever write will always be published by Plumbers Publishing unless someone persuades whoever owns Plumbers Publishing to give up its rights to the author or the author’s heirs. This persuasion will almost certainly involve money paid to Plumbers Publishing or to expensive lawyers who sue Plumbers Publishing on behalf of the author or the author’s heirs.
A couple of weeks ago I wrote about scammers impersonating reputable literary agents. These are not isolated incidents: I have a growing file of reports and complaints about this growing phenomenon–including from writers who’ve lost large amounts of money.
Now publishers are being impersonated as well. Here are a couple of examples of the kind of thing I’m seeing.
Here’s the pitch one author received from “Michael Smith” of “HarperCollins” (see the email address):
To pass the “1st stage of the acquisition” of their book, and move on to “an exclusive contract,” the author had already been persuaded (by “agent” Arial Brown, who is as fake as this offer) to hand over more than $8,000 for a new website and YouTube video. Now, in order to proceed to the next stage, they must shell out still more cash for “Developmental Editing and Content Editing.” But not to worry–all that spending is in aid of big rewards down the line:
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.
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.
Prior to the new law a 12-member censors committee met twice a month and decided which books would be permitted or banned. Now books can be published first, and banned after. Previously banned books remain banned.
Amendments to Kuwait’s notoriously restrictive press and publications laws were passed by the Kuwait National Assembly this week, in what was described as “an important step in terms of increasing freedom with a balanced commitment to moral, legal and national controls (and) a gift to writers, intellectuals, creators and everybody involved in culture.”
Amendments include a condition that for imported books the importer will bear the legal responsibility for the ideas and opinions expressed in the publication.
. . . .
Kuwaiti activist Abdullah Khonaini told Gulf News:
The freedom of expression is already restricted in Kuwait on multiple levels, this law doesn’t fix it. The amendment shifts the power of censorship away from the executive branch and to the judicial branch. We still need to work on the prohibition section in the law, which needs a stronger political lobby and mature political and societal awareness.
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.
“as the subcommittee’s hearings have laid bare, the competitive framework of the publishing industry has been fundamentally altered in recent years—and remains at serious risk of further diminishment—because of the concentrated power and influence of one company in particular: Amazon.”
In response to a comment to that post, PG went off on a frolic in mid-20th Century book history and produced the following:
The contemporary framework of publishing was in the process of fundamental alteration before Bezos sold his first book.
Big publishers were sucking up small and mid-sized publishers like minnows on a trout farm. In the 1950’s and 60’s, there were dozens of independent publishers in New York and elsewhere, some of which were discovering important authors and different voices.
Here are a handful of books published by organizations no longer in existence:
Catcher in the Rye was first published by Little, Brown Fahrenheit 451 – Ballantine Books Lord of the Flies – Faber and Faber Lolita – Olympia Press – in French (after the book was turned down by Viking, Simon & Schuster, New Directions, Farrar, Straus, and Doubleday) The Lion, The Witch and The Wardrobe – Geoffrey Bles (UK) On the Road – Viking Press To Kill a Mockingbird – J. B. Lippincott & Co. Slaughterhouse-Five – Delacorte One Flew Over the Cuckoo’s Nest – Viking Press & Signet Books The Bell Jar – Heinemann A Wrinkle in Time – Ariel Books The Godfather – G. P. Putnam’s Sons Do Androids Dream of Electric Sheep? (Blade Runner, #1) – Doubleday Dune – Chilton Book Company
Cancel culture notwithstanding, legal commentator Ken White argues that “this is a golden age for free speech in America.” For decades, he notes, the Supreme Court has protected all manner of objectionable speech, from burning the American flag to homophobic protests outside servicemen’s funerals. That’s true—but those victories rest on a broad cultural consensus. If campus norms continue to displace free speech culture, judges and lawyers will eventually start to ignore the First Amendment or, worse, chip away at it until it is meaningless.
Free-speech culture gave us the First Amendment to begin with. It kept free speech alive in the tumultuous 19th century. It reinvigorated the First Amendment in the 20th century. It informs interpretations of the First Amendment today—and it will determine whether free-speech protections will survive.
That’s very much in doubt, considering the state of those norms in higher education. Our organization was founded in 1999. Back then, if Princeton investigated a professor because he wrote an op-ed disagreeing with activist demands, or the public called on Auburn to fire a professor for expressing antipolice views online, or a conservative University of North Carolina-Wilmington professor was hounded to suicide for abrasive public statements, it would be a very bad semester. All this happened within two weeks last month, and the fall semester hasn’t even begun. As students graduate, cancel-culture norms spread beyond campus, to newsrooms, corporate boardrooms—and sooner or later courtrooms.
What is free-speech culture? Folk wisdom like “it’s a free country” is one window into cultural values, and free-speech values pervade our idioms. Sentiments like “to each his own” and “everyone’s entitled to an opinion” can be found all over First Amendment law. “Freedom to differ is not limited to things that do not matter much,” the justices observed in West Virginia Board of Education v. Barnette (1943). In Cohen v. California (1971), they declared that “one man’s vulgarity is another’s lyric.”
. . . .
[W]ithout a corresponding culture, free-speech law becomes a mockery. Consider the following constitutional provisions:
• “Everyone shall be guaranteed freedom of thought and speech.”
• “Citizens are guaranteed freedom of speech, the press, assembly, demonstration and association.”
• “Everyone has the right to express and disseminate his/her thoughts and opinions by speech.”
Each of these promises sounds similar to the First Amendment’s Free Speech Clause. But Russia, North Korea and Turkey, respectively, lack the free-speech culture necessary to make them real. Even in freer countries such as Spain, Britain and France, people have been imprisoned for rap lyrics, social-media posts, and reading choices.
Even as John Bolton’s The Room Where It Happened: A White House Memoir continues to roil the American political scene, its publisher, Simon & Schuster, now has seen yet another move against it on the month’s upcoming release, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man. by Donald Trump’s niece Mary.
Publishing Perspectives readers will remember that an attempt to block Mary Trump’s book was lodged late in June in the Queens County Surrogate’s Court. The judge quickly rejected the case and the book is set for a release on July 28. You may recall the growing level of interest in the world publishing community in this, as the International Publishers Association issued a statement of support for Simon & Schuster.
On Tuesday afternoon (June 30), however, a new court action temporarily blocked publication of the book.
We’ll walk through the pertinent steps here because, as Simon & Schuster’s attorneys at Davis Wright Tremaine led by Elizabeth McNamara are writing overnight, a successful halt to publication of the Mary Trump book “would be unprecedented in this country,” a violation of what the world publishing community refers to as the “freedom to publish.”
. . . .
As Maggie Haberman and Alan Feuer wrote at The New York Times on Tuesday, “Judge Hal Greenwald of the New York State Supreme Court issued the temporary restraining order until a hearing on July 10 to decide whether [Mary] Trump’s book … violated a confidentiality agreement she signed with other members of the Trump family in connection with a dispute over the estate of Fred Trump Sr., the president’s father.”
Following the news of the court’s action, the publishing house released to various news media a short statement of regret about the temporary restraining order (sometimes called a “TRO”), reading: “We are disappointed that the court has granted this temporary restraining order. We plan to immediately appeal this decision to the appellate division, and look forward to prevailing in this case based on well-established precedents regarding prior restraint.”
Similarly, an attorney for author Mary Trump also filed a statement, objecting to the move as “a prior restraint on core political speech that flatly violates the First Amendment.”
. . . .
In the newly filed opposition to the temporary restraining order—a document called a memorandum of law—Simon & Schuster writes that the action “identifies no misconduct by Simon & Schuster.
“Instead, Mr. Trump”–Robert Trump, the president’s brother who is leading the family’s court action–”believes that simply because he alleges that Ms. [Mary] Trump violated a nondisclosure agreement, one that Simon & Schuster did not know about and was not a party to, he may force Simon & Schuster to stop the presses and throw the brakes on the delivery trucks, halting publication of the book.
“Such an outcome would be unprecedented in this country. Mr. [Robert] Trump has not even attempted to make the requisite showing that the public would be harmed by the publication of the book and, absent that showing, his requested injunctive relief must be denied.”
As the Times’ Haberman has pointed out on CNN’s New Day this morning (July 1), it’s in that statement that we learn that the publishing house was unaware of a nondisclosure agreement relative to Mary Trump.
She has pointed out that the publishers’ filings also reveal that “the book is already in its printing.”
Indeed, the memorandum of law asserts, “Simon & Schuster did not learn anything about Ms. [Mary] Trump signing any agreement concerning her ability to speak about her litigation with her family until shortly after press broke concerning Ms. Trump’s book about two weeks ago, well after the book had been accepted, put into production, and printing had begun.”
The memorandum goes on to say that as of June 30, 75,000 copies already were printed and bound, “and thousands have already shipped to sellers.”
. . . .
Simon & Schuster CEO Karp—a former journalist with the Washington Post, the Miami Herald, and the Providence Journal—recounts in his affidavit, filed overnight with the memorandum of law, that S&S won an auction for Mary Trump’s book. He says he understands that nine or 10 other publishers were in contention for it.
In signing an “individual guarantee” with Simon & Schuster as part of her deal, Karp writes, “Ms. [Mary] Trump warrants and represents, in relevant part, that she has the ‘full power and authority to make this agreement and to grant the rights granted hereunder’ and that she ‘has not previously assigned, transferred or otherwise encumbered [the rights].’ agreement
“The agreement also includes Ms. Trump’s representation that these warranties are ‘true on the date of the execution of this agreement’ and ‘true on the date of the actual publication’ of the book. Further, the agreement provides that the ‘publisher shall be under no obligation to make an independent investigation to determine whether the foregoing warranties and representations are true and correct.’”
Karp goes on to say that nothing has given Simon & Schuster any reason “to doubt the accuracy” of Mary Trump’s warranties and that in a meeting with her about her proposal for the book, “She revealed that she was the primary source for the Pulitzer Prize-winning New York Times article “Trump Engaged in Suspect Tax Schemes as He Reaped Riches From His Father.”
An appellate court has reversed a New York trial court’s order stopping the publication of the Trump book, so S&S has told its printers to keep running the presses 24/7 and shipping books as soon as they’re boxed to flood the world copies with before another judge stops it from publishing.
From various and sundry online publications, it appears that Simon & Schuster won an auction for the book on May 14. In its filing yesterday, six weeks following the end of the auction, Simon & Schuster reported that “75,000 copies already were printed and bound” and “thousands” have been shipped.
Is the publisher’s inventory/shipping system so crude that it doesn’t know how many books it has shipped? That might cause a Simon & Schuster authors to question the accuracy of their royalty reports.
The quoted publishing contract language:
“Ms. [Mary] Trump warrants and represents, in relevant part, that she has the ‘full power and authority to make this agreement and to grant the rights granted hereunder’ and that she ‘has not previously assigned, transferred or otherwise encumbered [the rights].’ agreement”
So, apparently Ms. Trump may have conveniently forgotten about her previously-signed nondisclosure agreement that the Trump heirs claim prohibits her from making some information in the book public.
Simon & Schuster is shouting about the First Amendment, but the only right it has to publish Ms. Trump’s book is because Ms. Trump purportedly gave S&S the right to do so. S&S has no independent right to publish and the magic of publishing doesn’t give it the right to publish something when the author didn’t have the right to publish that same document.
The S&S contract conveniently includes a clause in the Trump contract stating “publisher shall be under no obligation to make an independent investigation to determine whether the foregoing warranties and representations are true and correct.”
In effect the publisher is saying it will rely solely on the author’s representations and warranties in the publishing agreement and won’t look at anything that might seem fishy about whether the author is prohibited from writing the book and giving S&S the right to publish it.
Ms. Trump is certainly bound by what PG will describe as a “willful blindness” clause, but the Trump heirs are not. The fact that Ms. Trump has previously involved in litigation with other heirs would raise a red flag for any attorney representing a publisher who was planning a tell-all book about the Trump family if the publisher were trying to avoid litigation with a notoriously litigious family.
S&S is essentially arguing that it is an innocent bystander that has spent money to publish a book and waving the First Amendment to protect itself.
However, PG contends there are only so many red flags that S&S can ignore and still claim its sanctity under the First Amendment.
PG would argue that the OP description makes S&S appear to be acting much more like a co-conspirator with the author to assist the author in violating the privacy of the Trump family and commit an act that the author apparently promised not to do – open the family secrets to the whole world – and for which the author received a lot of money from family members who wanted privacy and the family secrets kept secret.
PG is far from a fan of President Trump, but confidentiality agreements are quite common in American business and personal contracts.
Should a person desire to work for Apple or Microsoft or CitiBank or Goldman Sachs or General Motors or The United States Army or Simon & Schuster in a position that would permit that individual to access important information about the organization that would benefit competitors of the organization, that person would be expected to sign the sort of confidentiality and non-disclosure agreement that Ms. Trump apparently signed.
If a person violates a confidentiality agreement with the Army, that person could charged with treason. PG doesn’t know if treason still merits a firing squad or not, but whatever the punishment, he expects it would be severe.
To be clear, PG is not suggesting that Ms. Trump or anyone at Simon & Schuster be executed or sent to prison.
However, PG does suggest that the knowing behavior of both of those parties is not the sort of thing The First Amendment should reward with a lot of money or anything else.
The estate of Watership Down author Richard Adams has won back all of the rights to the late author’s classic novel about anthropomorphised rabbits, in a high court ruling against the director of the famed animated adaptation.
The high court in London ruled on 27 May that Martin Rosen, the US director of the 1978 adaptation of Adams’s novel, had wrongly claimed that he owned all rights to the book, in which a group of rabbits fight to survive the destruction of their warren.
The court heard that Rosen, who owned the motion picture rights to Watership Down under his original 1976 contract, had entered into contracts worth more than $500,000 (£400,975) while claiming that he held all rights to the novel. Rosen also made $85,000 from an unauthorised licence for an audiobook adaptation, and also failed to pay the estate fees and merchandising royalties from the 2018 BBC/Netflix television adaptation, on which he served as an executive producer.
In his ruling, Judge Hacon ordered Rosen and his companies to pay an initial $100,000 in damages for copyright infringement, agreeing unauthorised license deals and denying royalty payments. Rosen and his companies were also directed to provide a record of all license agreements involving Watership Down, and pay court costs and the estate’s legal fees totalling £28,000. Rosen is set to pay additional damages, to be determined at a later hearing.
The court also terminated the original contract in which motion picture rights for Watership Down were granted to Rosen.
. . . .
“As custodians of this most beloved novel, our family has an obligation to protect the publishing and other rights for Watership Down and to preserve the essence of our father’s creation,” Johnson said. “After many years trying to resolve matters directly with Martin Rosen, we are extremely pleased with the high court’s ruling. We can now look forward to the future and develop new projects that honour the powerful and pertinent messages of Watership Down about the environment, leadership and friendship.”
Speaking to the Guardian, Johnson said she was “utterly exhausted … it has taken a long time to pull it all together and say, dad didn’t get his due.”
PG has been looking into contemporary plagiarism over the past several days and will be writing more than one post about the topic.
The problem is three-fold (or maybe more than three-fold. PG has learned about three elements):
1. When Amazon and others permit an author or plagiarist to self-publish books around the world in a large number of languages. How does an author even discover that plagiarism is taking place?
2. College and university professors (and some high school teachers) are increasingly likely to screen student papers use plagiarism detection software – Turnitin is one of the most popular tools. Some time ago, students learned that copying and pasting a paper or segments of various papers they found online was an easy shortcut to creating a paper to turn in by a class deadline. Sometimes the online sources even included footnotes formatted in proper academic form. Plagiarism detection software is designed to catch such activities.
3. Where there are electronic plagiarism weapons, almost inevitably, there will be electronic or other defenses that prevent detection of plagiarism – paraphrasing the plagiarized information is one tactic that has been used since well before Turnitin came into being. For further information, see, for example, How to Beat Turnitin in 2019 and Get Away with It
4. While many of the ways of beating academically-oriented plagiarism detection are focused on manipulating a student paper, other, more sophisticated computerized tools often referred to as “Spinners” or “Article Spinners” can be used to not only fool college plagiarism checkers, but also make it difficult for the author of a book to discover plagiarism and prove copyright infringement in court.
Article Spinners were developed for a period prior to Google’s search engines developing the intelligence they have today.
The goal for some search engine optimizers was to generate as many pages with key words of interest to Google and, thus, advertisers. The spinners were created to substitute various synonyms for parts of an article on a topic. Thus, “good” in the original article would be changed to “great” “super” “excellent”, etc., etc. Several different words would be spin-treated. Thus, one four paragraph article on fishing lures could be spun into a thousand articles about fishing lures, each seeming to be a different page to Google. If someone was searching for fishing lures, Google would rank the site with a thousand articles about fishing lures higher than a site with one article.
Google has become smarter, so spinning doesn’t work there any more, but spinning software is still around and has reportedly become more sophisticated. Pour the text of a romance ebook into spinning software and out comes another romance that has a similar plot but different character names, places, descriptions, etc.
PG understands that the products of current spinning software require a significant amount of editing, but, if you’re planning to sell an 80,000 word romance, it’s a lot less work to do a quick copy edit than to write a book, develop characters, etc., from scratch.
5. Artificial Intelligence software has become more and more sophisticated in the past couple of years and no one expects progress to stop. And it is currently being used to write stories. Bloomberg generates about half of its articles about public companies and their latest earnings releases using artificial intelligence.
From Forbes magazine in February, 2019:
How do you know I am really a human writing this article and not a robot? Several major publications are picking up machine learning tools for content. So, what does artificial intelligence mean for the future of journalists?
According to Matt Carlson, author of “The Robotic Reporter”, the algorithm converts data into narrative news text in real-time.
Many of these being financially focused news stories since the data is calculated and released frequently. Which is why should be no surprise that Bloomberg news is one of the first adaptors of this automated content. Their program, Cyborg, churned out thousands of articles last year that took financial reports and turned them into news stories like a business reporter.
. . . .
Forbes also uses an AI called Bertie to assist in providing reporters with first drafts and templates for news stories.
The Washington Post also has a robot reporting program called Heliograf. In its first year, it produced approximately 850 articles and earned The Post an award for its “Excellence in Use of Bots” from its work on the 2016 election coverage.
. . . .
The LA Times is using AI to report on earthquakes based on data from the U.S. geological survey and also tracks homicide information on every homicide committed in the city of Los Angeles. The site created by the machine called “Homicide Report” utilizes a robot-reporter with the ability to write drafts of stories that include that includes: the victim’s gender and race, cause of death, officer involvement, neighborhood and year of death.
. . . .
The AP estimates that AI helps to free up about 20 percent of reporters’ time spent covering financial earnings for companies and can provide better accuracy. This gives reporters more time to concentrate on the content and story-telling behind an article rather than the fact-checking and research.
Contemporary artificial intelligence is leagues beyond article spinners and detecting that the work of another author (or several other authors) as the source material for an AI writing romance or other types of book-length fiction or non-fiction may already be difficult or next to impossible.
PG is interested in this issue as it relates to copyright infringement in the 21st century and will have a few more posts
When New Jersey went into lockdown on March 21st, I foolishly thought that I would get infinite amounts of writing done. During the day, I am the author acquisitions manager at IngramSpark and by night I like to write humorous personal non-fiction and romance novels. In my mind, I thought that the pandemic would give me a small reprieve from business as usual that included a very busy travel schedule.
I didn’t expect that business as usual would take on a whole new meaning.
As the publishing world began to screech to a halt with independent bookstores closing, publishers furloughing staff, Amazon focusing on essential items, and other printing plants closing, all of a sudden Ingram and the IngramSpark felt the burden, more than ever, to uphold our commitment to the publishing industry to keep it all humming. Needless to say, the writing really hasn’t happened.
. . . .
I am privileged to work with self-published authors all day. I have always been awestruck by their ingenuity and resilience. In the past six weeks those qualities have quadrupled, because the indie publishing world is uniquely suited to adapt to abrupt changes.
My clients have taught me several valuable publishing lessons recently that I would like to share.
. . . .
#1- Authors Have More Power Than Ever
I keep finding myself saying, “The author has more power than ever!” Before the pandemic hit, I still found this to be resoundingly true. Now, in the time of Covid, I believe that the shift in power has become even more apparent.
When I first started at IngramSpark, self-publishing was still the “red-headed stepchild” of the publishing industry. In the years that followed, self-publishing started to become a legitimate route to getting published. I believe that the pandemic has shifted the landscape even more.
While large businesses were slowed down or forced to close, indie authors kept plugging away. In fact, they took the opportunity to grow their burgeoning businesses. Being nimble is a hidden superpower of the indie author.
When this all shakes out, no one can predict what the publishing landscape will look like. Sadly, there will likely be some casualties when it comes to publishing businesses. This will allow indie authors with small publishing enterprises to emerge as serious players in the game.
. . . .
#2- Direct to Reader Sales are the Future
Early on in the pandemic, both indie authors and publishers saw the benefit in direct-to-reader sales. Larger retailers became overtaxed with the influx of orders and shipping has been taking longer than the two days Amazon has spoiled us to expect. Why not sell directly to your fans?
There are plenty of great ways sell directly to readers.
Shopify and other services can plug into your social media.
Ingram has a great direct to consumer tool called Aer.io that is very easy to use.
There has been a lot of buzz around Bookshop.org, an online bookshop run by the American Booksellers Association.
Why the buzz about Bookshop.org?
10% of all proceeds from Bookshop.org sales are put in a pot and given to independent bookstores. With those stores closed now, this is a wonderful way to support your indie bookstore. They have raised $1.1 million dollars already! The real perk about Bookshop.org is that you can set up your own affiliate shop.
Early adoption of these tools has given indie authors and publishers personal relationships with their readerships and a whole new sales vertical to explore. That brings me to #3…
#3- Direct Engagement with Readers is Powerful
Selling directly to readers is the perfect way for indie authors and publisher to engage directly with their readers and create personal, lasting relationships with them. These relationships create super fans which in turn create an army of evangelists for their books.
Authors and publishers have also found that direct sales are an opportunity to capture valuable information about your reader like their email address. If a reader opts to give their email address, this provides the huge bonus opportunity for long term engagement in the form of email blasts and personal, targeted communication.
The more an author engages with their fans, the more lifelong readers they will capture.
PG notes that Ingram Spark is effectively a sort-of competitor of Kindle Direct Publishing. In PG’s stunningly personal opinion, KDP is probably the best way into Amazon. Ingram provides “connections” to Amazon, libraries, Barnes & Noble and indie bookstores. Whether those connections ever generate any meaningful sales is another question.
PG also notes that if an indie author wishes to qualify for the 70% royalty on ebooks under KDP Select (which includes Kindle Unlimited and the Kindle Owners Lending Library which provide additional ways to increase ebook royalty revenues), she/he will not be able to sell the same titles as ebooks via Ingram Spark. Adding new content and/or bonus content that doesn’t appear in the KDP ebook to an Ingram Spark ebook won’t fly if you want to stay in the 70% royalty tier on KDP Select.
Amazon will definitely bounce a book out of KDP Select if it discovers an author doing this sort of thing or otherwise violating the KDP Select Terms and Conditions. The same warning that applies to Ingram Spark and KDP Select also applies to other independent epublishing outlets like Smashwords.
As a general proposition, if an author wants to stay in KDP Select and try out Ingram Spark or another route to non-Amazon bookstores, PG strongly advises the author to carefully read the Terms and Conditions Governing KDP Select (URL for US terms) or an alternative version applicable to KDP Select Ts&Cs in her/his country of residence.
If an indie author wants a hardcover version of his/her book, Ingram a way to go because Amazon only offers ebook and POD paperback options for indie authors.
As usual, PG will remind one and all that he doesn’t provide legal advice via his comments on TPV. If you want to obtain legal advice, you will need to hire PG or another lawyer of your choice.
(PG is not quite certain how he got the drop-cap in the prior paragraph with his recently updated WordPress theme, but he likes the look and won’t try to figure out how to undo the giant A.)
No writer wants to sue a Hollywood studio. It’s expensive, it’s terrifying, and it’s emotionally exhausting You’ll be publicly called out as a crank, a liar, a money-grubber, a loser, an opportunist, and a troll. You’ll hear that age-old threat: you’ll never work in this town again.
And you’ll almost certainly lose.
In their article “Death of Copyright, The Sequel”, entertainment attorneys Steven Lowe and Daniel Lifschitz reviewed over fifty copyright infringement cases filed in the Ninth Circuit by writers against studios and networks between the years 1990 and 2010. Every single writer lost. Those fifty lawsuits represent just the tip of the iceberg; no doubt there are many other justifiably aggrieved writers who didn’t have the money to hire a lawyer, or the emotional stamina to charge into battle against a studio. As Reed Martin writes in his book about filmmaking, The Reel Truth:
One respected journalist who covers the film industry has described screenplay theft as such a regular occurrence – almost as rampant as file sharing – that it has become a sad rite of passage for aspiring screenwriters, “proof that they can write screenplays worth producing.”
Most writers who work in the industry understand that suing a studio, no matter how justified their lawsuit, is a losing proposition—and it’s the writer who almost always loses. Knowing this, why would any writer risk everything to charge into battle as David against Goliath?
I’ll tell you why: because we’re angry and refuse to let them get away with it. I know, because I’ve been there and done that. I’ve seen the dark side of Hollywood.
. . . .
My journey started on a joyous note. It was 1999 and I had just finished writing my space thriller novel Gravity, about a female medical doctor/astronaut who is stranded alone aboard the International Space Station after the rest of her crew is killed in a series of accidents. Sick and dying aboard ISS, she fights to survive, while on earth, her astronaut-husband desperately hunts for a way to reach her. Heavy on technology, with extensive details about orbital life, ISS, and shuttle operations, the novel took me two years to research and write. I compiled thousands of pages of notes, interviewed dozens of NASA sources, and made site visits to NASA facilities in Texas and Florida.
A mere week after I mailed the finished manuscript to my editor at Pocket Books, I received a baffling phone call from a Variety reporter asking for my reaction to the movie buzz about my novel Gravity. I had no idea what he was talking about because, as far as I knew, my manuscript was still on my editor’s desk. I later learned that “hot” new novels are sometimes sneaked out of publishers’ offices and quickly land in the hands of movie producers before they’re officially submitted.
Gravity was just such a “hot” new novel, and studios were already circling. New Line Cinema made a pre-emptive bid to buy the rights, and the seven-figure deal was splashed across the front page of Daily Variety:
New Line and Artists Management Group (the production company) view “Gravity”as a major event pic and look to move quickly to put the elements in place, with a release in either summer of 2000 or 2001. AMG will likely package the project with as many of the banner’s clients as possible, and Rick Yorn told Daily Variety that he expects to have most major above-the-line talent in place within the coming weeks.
It was one of those “pinch me I’m dreaming” moments in a writer’s career. Gravity would be a major event pic, and veteran screenwriter Michael Goldenberg (Contact) was hired to write the screenplay. The finished script was a faithful adaptation of my novel—perhaps too faithful, as my novel’s climax didn’t have a visually cinematic finish. The third act needed reworking, I was told, and until that happened, nothing could go forward.
Since I already had experience as a screenwriter (my original script “Adrift” aired as a CBS TV Movie of the Week in 1993) I decided to jump-start the stalled Gravity project by rewriting the last fourteen pages of Goldenberg’s script.
. . . .
In May 2000, Daily Variety reported that the script would be sent out to directors that week, with filming expected by the end of the year, but Gravity became mired in development. Months went by. Feature film rights passed (briefly) to Twentieth Century Fox, then bounced back to New Line. The project faded into oblivion.
In 2008, Warner Bros. acquired New Line in a takeover that “ended New Line’s 40 years as an independent studio.” While this was big news in the film industry, I wasn’t even aware of it because I was too busy writing books. “Rizzoli & Isles,” the television series based on my crime novels, was a smash success on TNT (it would go on to a seven-season run) and my novels were regularly hitting bestseller lists around the world. As far as I knew, my Gravity film project was dead and buried, and I didn’t give it another thought.
Until 2010, when fans began to email their congratulations about the upcoming Warner Bros. space movie Gravity, which they assumed was based on my novel.
The new movie would be directed by Alfonso Cuaron, and the original screenplay was written by Cuaron and his son Jonas. Online, I found a description of the plot:
The movie’s plot revolves around astronauts repairing the Hubble telescope who are hit with an avalanche of satellite junk. In a plot akin to “Cast Away,” the surviving astronaut must fight her way back to Earth, where she hopes to reunite with her daughter.
I felt a twinge of nausea which only worsened when I found a more detailed description of the plot and learned that Cuaron’s heroine ends up stranded aboard the International Space Station. I knew of no connection between Cuaron and my Gravity project ten years earlier, but the shooting down of a satellite, the debris destroying ISS, the female astronaut desperate to reunite with a loved one on earth, the series of Titanic-like catastrophes leaving her stranded aboard ISS, and the identical title added up to a whopping series of coincidences. True, Cuaron’s tale had none of my novel’s medical details or my long lead-up to the crisis, but there was enough there to give me a jolting sense of familiarity. It’s as if the screenwriters threw out the first three-quarters of my novel and based their entire film on my final chapters.
Had Cuaron heard about my story and reworked it into his script?
. . . .
In October 2013, Cuaron’s Gravity, produced by Warner Bros., was released to great fanfare and went on to gross more than seven hundred million dollars at the box office. Sitting in the theater wearing 3-D glasses, I was awed by the movie’s spectacular visual effects, but that sick feeling of familiarity was back. The satellite debris destroying ISS—that was the scene I’d written in my re-write of the third act. The Sandra Bullock character who worked eighteen-hour shifts in a hospital—wasn’t that the MD astronaut from my novel? The script had changed since the earlier descriptions in the press—the heroine’s daughter was now dead—but I could still see the bones of my story on that movie screen.
Days later, while I was speaking at an Indiana library event, readers again congratulated me on “my” movie.
. . . .
New York, my literary agent gets a startling phone call, from a Reliable Source who’d worked with the original production team that tried to develop my Gravity into a movie back in 1999-2000. The Reliable Source had a bombshell piece of information to share: Back when my Gravity movie was still in active development, a director had been attached to the film.
That director was Alfonso Cuaron.
“Now I think you need a lawyer,” my agent said.
. . . .
The Reliable Source signed a sworn affidavit and told us where we could find the supporting documents should we go to discovery, but I was still not certain I wanted to sue. My attorney advised me that if I did sue, it could not be for copyright infringement, because of one simple fact: I did not own the film rights. I had sold those rights to New Line Cinema in 1999, and because Warner Bros. had acquired New Line in 2008, Warner Bros. was now in control of my Gravity film rights. Warner Bros. held the copyright, so they had the legal right to make the movie.
“If you do sue them,” he told me, “It will be for breach of contract.”
. . . .
To prevail in a copyright infringement lawsuit, a writer must demonstrate there is substantial similarity between his creation and the defendant’s, and in court this standard proves to be almost impossible to meet. If a producer steals the plot of a novel, changes the character’s names and locations and re-orders a few scenes, those changes alone may be enough to make it impossible for the novelist to win a copyright infringement lawsuit.
But “Buchwald vs. Paramount” established that in breach-of-contract lawsuits, a different standard applies. If a contract exists between the writer and the studio, and if the movie shares only a material element or is merely inspired by the original work, then the movie is considered “based upon” that work—even if adaptation has drastically changed the story. This explains why so many movies adapted from novels may end up wildly different from the original stories, yet retain the “based upon” label.
. . . .
My contract also had an assignment provision (something every film-rights contract should include):
ASSIGNMENT: Owner agrees that Company may assign this Agreement, in whole or in part, at any time to any person, corporation, or other entity, provided that unless this assignment is to a so-called major or mini-major production company or distributor or similarly financially responsible party or purchaser of substantially all of Company’s stocks or assets which assumes in writing all of Company’s obligations, Company shall remain secondarily liable for all obligations to Owner hereunder.
In addition, it included a Continuing Guaranty, requiring a “full and faithful performance” of the studio’s obligations to me, even if film rights to Gravity passed to another studio:
No assignment permitted by the Agreement will relieve Guarantor of its obligations to (Author) with respect to Guaranteed Obligations.
No matter where my Gravity film rights ended up, those clauses ensured that what was promised to me in the contract would be delivered. What I coveted most in the contract was the “based upon” credit. Like every novelist, I want to be recognized for my work—and I want to sell books. If my novel Gravity had been re-released as an official movie tie-in book, how many hundreds of thousands, even millions, of additional copies could I have sold around the world?
. . . .
Then I came across an article about how the Cuarons had written their screenplay.
They regrouped in the elder Cuaron’s London home one afternoon and began talking about the theme of adversity, about knowing when to fight and when to give up, and the theme of rebirth. And two images drove them: an astronaut spinning into the void and someone getting up and walking away. “Gravity was a metaphor, the force that keeps pulling us back to life,” says Jonas Cuaron.
A first draft was written in three weeks.
I thought about the two years of full-time research and writing I’d devoted to Gravity. I thought of my obsessive attention to details about ISS, the shuttle, EVAs, astronaut training, NASA lingo, aerospace medicine, and everyday life in orbit. I thought about how hard I’d worked to describe a scenario so accurately that even a NASA engineer would not find fault. And here the clever Cuarons had gone from “image of astronaut spinning in space” to a finished screenplay in a mere three weeks.
That’s when I got angry.
. . . .
A jury trial is what every plaintiff hopes for. And it’s what a studio will try to avoid at all costs.
“The best scenario is for this to be settled out of court,” my lawyer said. “But let me warn you now, they will never give you a based-upon credit, because that would be a public slap in Cuaron’s face. They won’t allow that.”
“Whatever happens,” I said, “I want to be able to talk about this. I refuse to sign any nondisclosure agreement.”
I’m sure he must have sighed at that point, because nondisclosure agreements are part of most Hollywood settlements. Lawsuits that make a big splash in the newspapers will suddenly vanish from sight, never to be heard of again, because plaintiffs are paid to shut up, or threatened with financial penalties if they don’t.
Warner Bros. attorneys quietly inquired if I was willing to go to mediation. I said I was. Perhaps this will be handled in a civilized manner after all, I thought. Perhaps they understood that money wasn’t even necessary, just acknowledgment of my grievance. Judge Margaret M. Morrow was assigned to my case, and I hoped she could convince us all to sit down and talk together.
Instead, Warner Bros. hired outside law firm O’Melveny & Myers, known for its ruthless defense of studios, to oppose me. “This means they intend to fight you every step of the way,” my lawyer warned. Alfonso Cuaron’s reputation was at stake and the studio was gong to protect him at all costs. Which meant I had to be destroyed.
Maybe a bit different than the usual fare on TPV, but PG hadn’t thought about the impact of Force Majeure clauses may have on a variety of different industries, including the book business.
For the record, PG doesn’t ever remember seeing a Force Majeure clause in an agreement between an author and a publisher.
I remember learning about Force Majeure in law school as a 1L. It seemed like such a fringe topic that I instinctively pushed it to the back of my mind as a contract provision that must be rarely triggered in real life and therefore would likely not be tested. A Force Majeure clause is a contract provision that absolves both parties from performing under the contract because an event that is beyond either of their control (e.g. a natural disaster or a terrorist attack) has occurred and made performance under the contract “inadvisable, commercially impracticable, illegal, or impossible.” It is generally true that outside of a natural disaster like a hurricane, tornado, tsunami, earthquake, forest fire, or other natural disaster Force Majeure is rarely talked about.
Now, Force Majeure is front and center as a significant portion of America’s businesses are anxiously wondering if a number of crucial contracts that they entered into can be voided as a result of the Coronavirus. There is no telling exactly how much money could be lost by American businesses because of Force Majeure claims, but it can safely be assumed that the potential exposure figure is well into the billions, and it will certainly be the subject of litigation proceedings for a significant time to come.
To make matters worse, not all Force Majeure claims are triggered by the same events and some events that seem sufficiently out of a party’s control, like insolvency, may not trigger Force Majeure. For example, in the state of New York, if performance under the contract is only impossible because it would push an entity to bankruptcy performance will still not be excused under Force Majeure (via 407 E. 61st Garage, Inc. v. Savoy Fifth Ave. Corp.). Although it is helpful to look to the courts for guidance regarding what event may warrant a Force Majeure claim, it is often not as helpful as looking to the specific language of the contract and discovering whether or not your contract even contains a Force Majeure clause and if there are any qualifying events already enumerated by it.
Finding out if you have one of these clauses and, if you do have one, what exactly is outlined in it is certainly not easy since companies may have hundreds or thousands of contracts that they are actively a party to. For a significant portion of companies, manually reviewing (even with the help of Ctrl+F) all of their contracts to determine their potential Force Majeure exposure is a nearly impossible task that would take days.
In response to the Coronavirus crisis, AI is now being used in legal departments to search through all the contracts that they are a party to for Force Majeure clauses and then pulls the exact language of the clause.
If you’re interested in what a Force Majeure clause looks like, here’s an example:
Neither party shall be liable for any costs or damages due to delay or nonperformance under this Data Access Services Addendum arising out of any cause or event beyond such party’s control, including, without limitation, cessation of services hereunder or any damages resulting therefrom to the other party as a result of work stoppage, power or other mechanical failure, computer virus, natural disaster, governmental action, or communication disruption.
The sovereign immunity refers to the fact that the government cannot be sued without its consent.
. . . .
Sovereign immunity was derived from British common law doctrine based on the idea that the King could do no wrong. In the United States, sovereign immunity typically applies to the federal government and state government, but not to municipalities. Federal and state governments, however, have the ability to waive their sovereign immunity. The federal government did this when it passed the Federal Tort Claims Act, which waived federal immunity for numerous types of torts claims.
. . . .
When determining whether a citizen may sue a state actor (someone acting on behalf of the state: i.e. a state worker), courts will typically use one (1) of four (4) tests:
Governmental v proprietary function test (Was the actor functioning in a governmental fashion or a proprietary fashion?)
If the actor was performing a proprietary function (i.e. acting for financial gain for itself or its citizens; doing something that is not historically a governmental function; doing something that can be performed by a private corporation/contractor), then the actor is subject to liability
If the actor was performing a governmental function (i.e. acting for the general public; doing something ordained by legislature; performing a historic gov function), then the actor is not subject to liability
Ministerial/operational v. discretionary functions/acts test (Was the actor performing a ministerial/operational task or a discretionary task?)
If the actor is performing a ministerial/operational action, then there is not immunity.
If the actor is performing a discretionary action, then there is immunity.
Planning v implementational (Was the actor planning an action or implementing an action?)
If the actor’s planning of policy results in harm, then there is immunity
If the harm happens due to the government’s implementation of the plan, then there is not immunity
Non-justiciable v. justiciable
If the action is justiciable under regular tort principles, then there is no immunity. If the issue is not justiciable under regular tort principles, then there is immunity.
And, since you were curious about what justiciabile means:
Justiciability refers to the types of matters that a court can adjudicate. If a case is “nonjusticiable,” then the court cannot hear it. Typically to be justiciable, the court must not be offering an advisory opinion, the plaintiff must have standing, and the issues must be ripe but neither moot nor violative of the political question doctrine. Typically, these issues are all up to the discreion of the court which is adjudicating the issue.
Disclaimer: I am not a lawyer or CPA. So I’m not in a position to give individualized and specific legal or tax advice. This article is meant to give general guidance on considerations. However, it would make sense to consult a lawyer and CPA before acting on this general guidance, because benefits and drawbacks will change from state to state.
With that out of the way, this is one of those questions I receive every so often from writers. In most cases, the writers are not earning a significant income from their writing yet, but I get it. I’m a writer too, and I feel like writers are especially gifted at dreaming up possibilities—both good and bad.
. . . .
Reasons I’ve heard writers give for incorporating or forming an LLC usually have to do with protection. Some people have heard that incorporating as an S Corp or creating an LLC will protect them from lawsuits and provide tax benefits.
. . . .
One reason writers give for considering incorporating or creating an LLC is to put a wall between their freelance business and personal assets. On its surface, it sounds like a good reason. However, the most common liability for writers is different than other businesses that have employees, investments in production, and other business costs.
The most common liabilities for writers are tied to possible lawsuits for defamation, privacy, or infringement. In all those cases, plaintiffs would likely file suits against both the company and the writer. This is why most publishing contracts have language to cover them against the actions of their writers.
The good news is that you’re not completely helpless if this is a concern for you. Writers can look into Business Liability and/or Media Liability insurance policies. If you go this route, be sure that your policy covers defamation, privacy, and infringement claims.
Get tax advice from a CPA or qualified tax accountant, not another writer. Some writers won’t gain any tax benefit from a corporation or LLC (Limited Liability Companies – they are definitely not the same when it comes to taxes) while other writers will.
Is the writer married? Does the spouse have an income?
Does either the writer or the spouse own assets not related to writing?
Does the author live in a community property state?
Are inheritance or estate taxes going to be involved if the author dies while married? Unmarried?
Get legal advice from a lawyer, not another writer.
Laws relating to defamation, privacy, or infringement claims vary, sometimes substantially, from state to state.
There are very good reasons that many corporations, including most very large corporations, incorporate in Delaware rather than the state in which most of the corporation’s assets exist. (About two-thirds of Fortune 500 companies are Delaware corporations.)
There are very good reasons why many LLCs (and an increasing number of closely-held corporations) are formed in Nevada even though the parties creating them and the assets of these entities are outside of Nevada.
Laws relating to the types of third-party claims from which an LLC or corporation may shield a shareholder of a corporation or owner of an LLC interest vary from state to state.
More than one lawsuit has been avoided or won because of legal speed bumps lying between the claimant and an award of damages.
As an example, if a plaintiff lives in Illinois and the defendant/author contends a Nevada LLC owns the copyright to the book involved and the LLC files a proceeding in Nevada against the plaintiff claiming improper actions on the part of the Illinois plaintiff and that Nevada, not Illinois, is the only proper place to pursue the litigation of the claims of the LLC, at a minimum, it is almost certain the plaintiff will need to hire a Nevada attorney to respond.
There are many, many other potential speed bumps between a complaint and cash in the plaintiff’s pocket that a determined author and competent counsel can place create. This is one reason why many litigation attorneys require a substantial up-front payment from an individual plaintiff and will not take a case on a contingency fee basis unless there is an insurance company or some other deep pocket who will pay if the judgment goes against them. You can assume that 99.999% of the attorneys who advertise on television fall into that category.
Finally, PG notes that he is a member of The State Bar of California and claims no legal or professional expertise with respect to the tax laws of any government entity nor the laws of Illinois, Delaware or Nevada. If you wish to understand tax laws, you need to hire a competent accountant or tax attorney and if you wish to understand the laws, including the corporation and LLC laws and the laws and court rules relating to litigation in a state, you need to hire a competent attorney who is admitted to practice law in that state.
UPDATE: PG didn’t mention the suggestion in the OP that an author consider acquiring Business Liability and/or Media Liability insurance. PG will note that such policies are very complex documents that include provisions that limit the policy’s coverage in various ways and will almost certainly include provisions for a large deductible that the author must pay.
PG is not opposed to appropriate insurance (and has the lawyer’s version of such insurance himself), it may not be easy for most authors to understand the protection that the policy provides and what potential losses the policy will cover and what it will not cover. Additionally, such insurance will be in force for a set period of time and renewal will require payment of another premium, even if the author does not plan to write any additional books. Maintaining the existence of a corporation or LLC may well be less expensive than premiums on such insurance. Note that nothing precludes an author from doing both – corporation/LLC plus liability insurance.
PG will also note that liability coverage connected to insurance on real estate or automobiles you may own will not cover claims made against an author relating to the author’s literary works.
A rush of misguided trademark applications for “COVID” and “coronavirus” has already begun, replaying a bizarre legal phenomenon in particularly tasteless fashion.
Trending terms from news and pop culture are routinely followed by a flood of applications at the U.S. Patent and Trademark Office, filed by opportunistic applicants who think they can lock down exclusive rights on something that’s captured the national conversation.
Only this time, it’s not a viral presidential typo or a Super Bowl moment — it’s an ongoing pandemic that threatens millions and has ground daily life to a halt around the globe.
“This isn’t about lightweight entertainment,” said Julia A. Matheson, a trademark attorney at Hogan Lovells. “It’s about people’s lives.”
As of Wednesday, more than a dozen applications have been filed at the USPTO seeking to register trademarks involving “COVID” or “coronavirus.”
. . . .
For trademark lawyers, the pattern is predictable.
Back in 2017, when President Donald Trump accidentally tweeted the word “Covfefe,” it was followed by 42 separate attempts to register it as a trademark. After the Philadelphia Eagles ran the famous “Philly Special” trick play in Super Bowl LII, 10 such applications were filed.
Just three days after the Boston Marathon bombing in April 2013, four applications had already been filed to register “Boston Strong” — the rallying cry for the city in the wake of the attack. Eventually, seven more were filed.
“Depending upon how you look at it, it reflects the best and worst of the capitalist ethos and desire to get rich quick from widespread trending events,” Matheson said.
It also reflects a deep misunderstanding of how trademark law works.
For starters, U.S. trademark law doesn’t simply reward whoever is quickest to file a piece of paper with the government. Applicants must show that they have a bona fide intent to use the term on a particular set of goods and services — something most “coronavirus” applicants are unlikely to do.
“It’s a get rich quick scheme, but like most of these schemes, they fail,” said Eric Ball, a trademark attorney at Fenwick & West LLP. “Trademark law doesn’t support the warehousing of marks. You have to actually use the marks to get rights.”
One other small problem: Terms like “COVID” are, for the most part, incapable of functioning as trademarks in the first place, made so by the very attribute that attracted the applicants.
By its nature, a trending term has been widely used by countless third parties. How, then, can it somehow uniquely identify an applicant as a source of goods?
The ABA Journal is the flagship magazine for members of the American Bar Association. With a circulation around 400,000, it’s considered the magazine for lawyers and the legal profession. As such, it’s a very competitive market with a reputation of paying competitive rates to freelancers.
The editors say, “The ABA is the largest voluntary professional association in the world. With more than 400,000 members, the ABA provides law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public.”
What They’re Looking For
ABA Journal does not review unsolicited manuscripts. Rather, the editors want freelancers to query with their resumé and published clips. They expect articles to include multiple sources and opposing points of view.
The editors say, “The ABA Journal considers queries from professional writers or from potential sources who wish to contact us regarding subjects that might be of interest to our readers.”
Estimated length and payment are discussed upon assignment.
Many years ago when he practiced a much different type of law than he does now, PG had a regular monthly column in The ABA Journal, so he became very familiar with the topics that would interest the publication.
A few preliminary points for those who are not attorneys:
The American Bar Association is a voluntary organization. Unlike the state bar associations which attorneys are required to join (and pay dues to) for the privilege of practicing law, nobody is required to be a member of the ABA.
Thus, the ABA is looking for stories that will interest both its members and non-members who may be wondering if they should join.
Non-members can see many (maybe all?) parts of The ABAJ online – https://www.abajournal.com/ so you can get an idea of the types of stories that have been publishing recently.
Like every other bar association, mandatory or voluntary, the ABA charges dues ranging from $75-$450 per year, depending upon how many years an attorney has been in practice. The amount of the dues payment has been a sore point for solo and small firm attorneys since forever. The ABA dues payment is on top of the mandatory payment required from the state bar and the combination can go over $1,000 per year.
Among solo and small firm attorneys, it is not unusual to find those who believe the ABA is relevant for attorneys in large firms and specialized practices and doesn’t have much to offer those who don’t meet that description.
One of the reasons PG was offered a regular column in ancient days was because, at that time, he was in solo practice in a small town, so he didn’t fit the stereotype. Additionally, PG had learned a lot about using computers in his own practice which was not understood by the average lawyer in either a large or small firm.
So, if PG were putting together a pitch for a story to the ABAJ today, he would look for a story about an attorney who didn’t work for a large firm in a large city and who was doing something different than typical lawyers were doing.
Bar associations of all types love to tout the work attorneys do without being paid, pro bono publico (Latin: “for the public good”) usually shortened to pro bono.
Some state bar associations require that attorneys perform XX hours of pro bono work each year or give them credit for those hours against state-mandated Continuing Legal Education (which usually costs money) requirements that must be reported to the state bar periodically.
A story about a small-town lawyer who represented an indigent juvenile repeat offender, got the kid get out of juvenile detention and helped her to get into Harvard would be close to ideal.
PG has no idea about how much The ABA Journal pays for articles these days. In ancient times, he was definitely satisfied with the payment he received from them each month.
Another area that seems to be evergreen for ABAJ articles is how lawyers use computer or other technologies in their practices. For as long as PG has known anything about computers in law offices, a significant portion of attorneys have not been very good with technology. Perhaps too many humanities majors realize they’ll never make a living in their chosen field and apply to law school.
The ABA has hosted a successful annual legal geekfest called ABA Techshow for a very long time (in tech years).
Each year, great flocks of geek attorneys circle O’Hare Airport and descend upon an unsuspecting convention hotel in downtown Chicago. They call to each other and the leaders display their latest tech accomplishments for competitors and compatriates to admire.
(During PG’s time, there was no widespread mating that occurred at Techshow, but he can’t speak for today.)
Techshow provides a fertile field for finding stories about attorneys doing unusual things with their computers, tablets, smartphones, etc., in court, in their offices and on the road.
[Author Dr. Daniela] Simone assesses how UK law defines shared authorship and how authorship is then allocated among creative collaborators. The book confirms copyright’s reputation as a legal framework ill-suited for collaborative creative processes, arguing that it prefers single authorship (and ownership). As a result, rights tend to be concentrated in singular, rather than, multiple, hands. Simone explains the ‘why’ for copyright’s bias for single authorship and where such bias might come from. Simone then challenges this bias by offering an alternative read on copyright and collective authorship. The book opens with a description of sole versus joint-authorship under UK law (Chapter 2). Simone’s analysis of case law on joint authorship sheds light on the oddities and incoherencies of the doctrine.
. . . .
(1) Joint-authors are held to a higher standard. In comparing the tests of single authorship with that of joint-authorship, Simone reveals that UK courts hold parties to a higher standard when they seek ‘joint-authorship’, because they must demonstrate a more ‘significant’ or ‘substantial’ contribution to the work. This difference in threshold has no statutory basis, as the Copyright, Designs and Patents Act 1988 (CDPA) is neutral on this question (as was the text of the previous statutory formulations, e.g. here). (2) The test for joint-authorship is built upon a small number of highly fact-sensitive cases. There is scant precedent on joint-authorship to turn to for guidance. The few case law authorities that we do have are difficult to apply because each case involves different types of creative work, creative processes and collaboration patterns. (3) The joint-authorship doctrine is ‘polluted’ by concerns about shared ownership. Judicial discussion on the attribution of joint authorship often address whether it would be practical for the ownership of the work to be shared between multiple parties. This approach, Simone argues, conflates two different concepts of copyright (authorship and ownership), which copyright law takes such care to distinguish. (4) The test for joint-authorship breaches the principle of aesthetic neutrality. It is a well-established principle of copyright law that copyright should apply regardless of the work’s aesthetics, artistic quality or genre. Judges keeping to this principle in the context of joint-authorship claims have complicated this jurisprudence. This principle has courts avoiding language that might refer to the aesthetics, genre or quality of the work. This is especially true when judges assess the evidence submitted by the parties on the creative process and their relative contribution to the work. But courts end up producing open-ended, vague, abstract, and inconsistent language by being overly cautious on this point.
. . . .
Simone’s chief recommendation is to close this gap between the law and social norms on authorship and credits so that collective authorship enjoys its proper place within the framework of copyright. The author proposes to do so by importing into copyright law some of the more nuanced field-specific practices according to which collaborators negotiate authorship. Simone suggests that this should bring copyright into line with the expectations of creators on authorship and credits.
. . . .
These conclusions come after road-testing the joint-authorship doctrine on three types of collective authorship: Wikipedia entries (Chapter 4), Australian Indigenous Art (Chapter 5) and films (Chapter 6). The use of these three case studies in this way keeps Simone’s critique of the joint authorship doctrine rooted in concrete examples.
PG suggests that a takeaway for authors is that, if you are writing a book with a co-author, you should have a signed contract that, among other things, specifies how authorship will be handled for copyright and book credit purposes.
As with a great many things legal, problems rear their ugly heads in this area of human relationships when money (often, but not always, significant amounts of money) is involved. On occasion, pride works almost as well as money.
The EPO has published its decision setting out the reasons for its recent refusal of two European patent applications in which an AI system was designated as the inventor.
Filed by an individual in autumn 2018, the applications EP 18 275 163 and EP 18 275 174 were refused by the EPO following oral proceedings with the applicant in November 2019, on the grounds that they do not meet the legal requirement of the European Patent Convention (EPC) that an inventor designated in the application has to be a human being, and not a machine.
In both applications a machine called “DABUS”, which is described as “a type of connectionist artificial intelligence”, is named as the inventor. The applicant stated that he had acquired the right to the European patent from the inventor by being its successor in title, arguing that as the machine’s owner, he was assigned any intellectual property rights created by this machine.
In its decisions, the EPO considered that the interpretation of the legal framework of the European patent system leads to the conclusion that the inventor designated in a European patent must be a natural person. The Office further noted that the understanding of the term inventor as referring to a natural person appears to be an internationally applicable standard, and that various national courts have issued decisions to this effect.
Moreover, the designation of an inventor is mandatory as it bears a series of legal consequences, notably to ensure that the designated inventor is the legitimate one and that he or she can benefit from rights linked to this status. To exercise these rights, the inventor must have a legal personality that AI systems or machines do not enjoy.
Finally, giving a name to a machine is not sufficient to satisfy the requirements of the EPC mentioned above.
The thought randomly passed through PG’s morning mind while he was reading the OP.
Typically patent applications require some sort of attestation to the effect that the filer is the inventor and the facts in the application are true.
Here is the attestation language from a USPTO form for a Utility or Design application:
The above-identified application was made or authorized to be made by me.
I believe that I am the original inventor or an original joint inventor of a claimed invention in the application.
I hereby acknowledge that any willful false statement made in this declaration is punishable under 18 U.S.C. 1001 by fine or imprisonment of not more than five (5) years, or both.
Since the original applications in the OP named DABUS as the inventor, will a subsequent application signed by humans associated with DABUS be valid if someone has already attested that DABUS is the author and not the conniving humans who are trying to claim credit and rights to something they didn’t create?
In December, a jury ruled that US-based internet service provider Cox Communications was liable for the infringement of over 10,000 music copyrights by its users. The company was ordered to pay Universal, Sony and Warner a whopping $1bn in collective damages – equivalent to just over $99,000 for each of the 10,017 works infringed.
. . . .
Cooper noted Warner’s satisfaction with the ruling, which he pointed out was the fifth largest U.S jury award in the whole of 2019, and which, he said, “clearly demonstrates that juries understand piracy is not okay”.
Cooper noted that WMG and/or the record industry had also brought similar cases against four other ISPs: Charter, Grande, RCN and Bright House, “all of which should proceed to trial within the next 12 to 18 months”.
. . . .
Cox Communications just lodged a fierce legal motion challenging the $1bn damages verdict – calling it “unprecedented”, and suggesting that the amount of money it’s being told to pay is “grossly excessive”.
According to a Memorandum filed Friday (January 31) by Cox and obtained by MBW, the company calls for one of two new outcomes – either a remittitur (i.e. a reduction in the amount of damages awarded) or an entirely new trial.
The Memorandum, filed with the Eastern District of Virginia Court, argues: “The $1 billion award is a miscarriage of justice; it is shockingly excessive and unlawfully punitive, and should be remitted or result in a new trial.”
Cox adds: “The award of $1 billion appears to be the largest award of statutory copyright damages in history. This is not by a matter of degree. It is the largest such award by a factor of eight.
. . . .
“It is the largest such award for secondary copyright infringement by a factor of 40. It is the largest jury verdict in the history of this District by a factor of more than 30.
“It is by any measure a shocking verdict, wholly divorced from any possible injury to Plaintiffs, any benefit to Cox, or any conceivable deterrent purpose.”
Cox argues that the $1bn damages verdict “exceeds the aggregate dollar amount of every statutory damages award rendered in the years 2009-2016 by more than four hundred million dollars”.
The firm cites what it calls the three previous biggest copyright statutory damages awards in the States: (i) Atlantic Recording v. Media Group Inc in 2002 ($136m); (ii) Disney Enters., Inc. v. Vidangel, Inc in 2019 ($62.4m); and (iii) UMG Recordings, Inc. v. MP3.Com, Inc in 2000 ($53.4m).
Cox posits that all three of these verdicts “were rendered against direct infringers — people who actually misappropriated the copyrighted material for their own use and profit”. In most cases, it says, these infringers “were conducting businesses based upon copyright infringement” making them “adjudicated pirates”.
. . . .
As an ISP, Cox argues that such an accusation does not apply to its business, suggesting that rather than being a “direct infringer”, it should instead be classified as a “secondary infringer” in the December ruling.
Cox then points out that the largest statutory damages ever awarded against a secondary infringer happens to be against itself – $25m in BMG Rights Mgmt. LLC v. Cox Communications, Inc. (2015).
“The $1 billion award thus appears to be the largest ever against a [secondary] infringer situated like Cox — by a factor of 40,” it says.
The higher education system is a unique type of organisation with its own way of motivating productivity in its scholarly workforce. It doesn’t need to compel professors to produce scholarship because they choose to do it on their own. This is in contrast to the standard structure for motivating employees in bureaucratic organisations, which relies on manipulating two incentives: fear and greed. Fear works by holding the threat of firing over the heads of workers in order to ensure that they stay in line: Do it my way or you’re out of here. Greed works by holding the prospect of pay increases and promotions in front of workers in order to encourage them to exhibit the work behaviours that will bring these rewards: Do it my way and you’ll get what’s yours.
Yes, in the United States contingent faculty can be fired at any time, and permanent faculty can be fired at the point of tenure. But, once tenured, there’s little other than criminal conduct or gross negligence that can threaten your job. And yes, most colleges do have merit pay systems that reward more productive faculty with higher salaries. But the differences are small – between the standard 3 per cent raise and a 4 per cent merit increase. Even though gaining consistent above-average raises can compound annually into substantial differences over time, the immediate rewards are pretty underwhelming. Not the kind of incentive that would motivate a major expenditure of effort in a given year – such as the kind that operates on Wall Street, where earning a million-dollar bonus is a real possibility. Academic administrators – chairs, deans, presidents – just don’t have this kind of power over faculty. It’s why we refer to academic leadership as an exercise in herding cats. Deans can ask you to do something, but they really can’t make you do it.
. . . .
If the usual extrinsic incentives of fear and greed don’t apply to academics, then what does motivate them to be productive scholars? One factor, of course, is that this population is highly self-selected. People don’t become professors in order to gain power and money. They enter the role primarily because of a deep passion for a particular field of study. They find that scholarship is a mode of work that is intrinsically satisfying. It’s more a vocation than a job. And these elements tend to be pervasive in most of the world’s universities.
But I want to focus on an additional powerful motivation that drives academics, one that we don’t talk about very much. Once launched into an academic career, faculty members find their scholarly efforts spurred on by more than a love of the work. We in academia are motivated by a lust for glory.
We want to be recognised for our academic accomplishments by earning our own little pieces of fame. So we work assiduously to accumulate a set of merit badges over the course of our careers, which we then proudly display on our CVs. This situation is particularly pervasive in the US system of higher education, which is organised more by the market than by the state. Market systems are especially prone to the accumulation of distinctions that define your position in the hierarchy. But European and other scholars are also engaged in a race to pick up honours and add lines to their CVs. It’s the universal obsession of the scholarly profession.
. . . .
At the very pinnacle of the structure of merit badges is, of course, the Nobel Prize. A nice thought, but what are the odds? Fortunately, other academic honours are a lot more attainable. And attain them we do.
Take one prominent case in point: the endowed chair. A named professorship is a very big deal in the academic status order, a (relatively) scarce honour that supposedly demonstrates to peers that you’re a scholar of high accomplishment. It does involve money, but the chair-holder often sees little of it. A donor provides an endowment for the chair, which pays your salary and benefits, thus taking these expenses out of the operating budget – a big plus for the department, which saves a lot of money in the deal. And some chairs bring with them extra money that goes to the faculty member to pay for research expenses and travel.
But more often than not, the chair brings the occupant nothing at all but an honorific title, which you can add to your signature: the Joe Doakes Professor of Whatever. Once these chairs are in existence as permanent endowments, they never go away; instead they circulate among senior faculty. You hold the chair until you retire, and then it goes to someone else. In my own school, Stanford University, when the title passes to a new faculty member, that person receives an actual chair – one of those uncomfortable black wooden university armchairs bearing the school logo. On the back is a brass plaque announcing that ‘[Your Name] is the Joe Doakes Professor’. When you retire, they take away the title and leave you the physical chair. That’s it. It sounds like a joke – all you get to keep is this unusable piece of furniture – but it’s not. And faculty will kill to get this kind of honour.
This being the case, the academic profession requires a wide array of other forms of recognition that are more easily attainable and that you can accumulate the way you can collect Fabergé eggs. And they’re about as useful. Let us count the kinds of merit badges that are within the reach of faculty:
publication in high-impact journals and prestigious university presses;
membership on review committees for awards and fellowships;
membership on editorial boards of journals;
officers in professional organisations, which conveniently rotate on an annual basis and thus increase accessibility (in small societies, nearly everyone gets a chance to be president);
administrative positions in your home institution;
a large number of awards of all kinds – for teaching, advising, public service, professional service, and so on: the possibilities are endless;
awards that particularly proliferate in the zone of scholarly accomplishment – best article/book of the year in a particular subfield by a senior/junior scholar; early career/lifetime-career achievement; and so on.
Each of these honours tells the academic world that you are the member of a purportedly exclusive club. At annual meetings of professional organisations, you can attach brightly coloured ribbons to your name tag that tell everyone you’re an officer or fellow of that organisation, like the badges that adorn military dress uniforms. As in the military, you can never accumulate too many of these academic honours.
PG will note that the same pattern applies in U.S. law schools. As with other academic departments, the ability to actually teach well tends to be subsidiary to the publishing/professional organization elements of status.
That said, it’s rare for law school professors to be active in the interest sections of The American Bar Association and various state bars.
For a twenty-year period during which he practiced retail law, PG was actively involved in the ABA and his state bar association. Generally speaking, the activities of those associations were characterized by entertaining presentations, talks and discussion. As PG has mentioned before, a lawyer friend once told him that the friend could walk into any third-grade classroom and identify future lawyers because they never stopped talking.
As one might expect, some, but not all of the most engaging and entertaining speakers were involved in litigation practices that meant they spent a lot of time in court talking to judges and juries. On the other hand, patent and tax lawyers (with a small handful of exceptions) tended to be pretty dry.
On a couple of occasions, PG’s ABA responsibilities required him to attend a meeting of a law school professors’ organization. They were dull as dishwater.
From The Journal of Intellectual Property Law & Practice:
In Western culture, one of the earliest myths dealing with what would subsequently become a literary topos is the one concerning Narcissus. Narcissus was known for both his great beauty and the disdain he showed to those who loved him. In the version of the myth as told by Ovid, Narcissus’s behaviour (particularly towards Echo) prompted Nemesis, the goddess of revenge, to punish him by luring him to a pool. There, Narcissus saw his own image reflected in the water and fell in love with it, without realizing that it was just his own reflection. Unable to fulfil his love, Narcissus eventually melted away from the fire of passion burning inside him.
If we now move away from the realm of myth to that of law, a similar feeling—of attraction and yet unfulfillment—seems to be present when we review the type of legal protection available to one’s own image. In particular, it seems that this feeling is experienced where no self-standing image rights protection is available. In countries of this kind, in fact, different tools can be employed to repress unauthorized third-party uses of one’s own likeness, image, distinctive features, etc. Yet, none of them – even when combined together – seems to allow achieving the same results (and with the same apparent simplicity) that, instead, image rights as (predominantly) an expression of one’s own personality and identity provide.
The contributions that we host in this first special image rights issue move from, indeed, the attractiveness of the idea that the law should protect against the misappropriation and misuse of one’s own image. Yet, they also share a sense of dissatisfaction with the status quo.
. . . .
Any change, however, would need to be made, first, in a context in which several conflicting rights and interests are at issue, including third-party artistic and commercial freedom of expression (so that any intervention would need to be ‘surgical’ in both scope and objective). Second, as the articles on, e.g. deepfakes and revenge porn show, any such change would require considerations of different areas of the law and doctrines, as well as fast-paced technological developments. In a field, that of image rights, which puzzlingly remains substantially unharmonized at the international and EU levels, the challenges that, in particular, the latter pose show the need for effective enforcement tools and responses that, due to the very nature of such challenges, will also likely need to be increasingly transnational.Our contributions allow us to travel from the United Kingdom to California, to consider EU, US and Russian laws, to appreciate the interplay between technological, public policy and legal issues, to review image rights in relation to street photography, sexual images and deepfakes.
. . . .
[Analysis of a decision by an Italian court]
The Court of First Instance of Turin held that Audrey Hepburn’s image rights had been violated due to the unauthorized use and exploitation of her likeness for commercial purposes.
. . . .
The judgment considers the two fundamental provisions concerning image rights: Article 10 of the Civil Code and Article 96 of Law No 633/1941 (the Italian Copyright Act). The former protects image rights by solely describing the behaviour prohibited by law, yet without positively defining the concept of image or image right. In fact, the provision laconically states that ‘if the image of a person or his/her parents, spouse or children has been exhibited or published outside of the cases in which said exhibit or publication is allowed by law or [it has been exhibited or published] with prejudice to the decorum or reputation of the person himself or of the aforementioned parties, at the request of the interested party the judicial authority may order that the abuse is ceased, save for compensation for damages’(author’s own translation).
. . . .
It follows that the consent of the right holder is essential for the use of one’s own image or likeness, unless one of the exceptions provided by Article 97 applies. Notably, consent is not required ‘when the reproduction of the image [of a person] is justified by the notoriety or the public office covered by said person, by necessity of law and order, by scientific, educational or cultural purposes, or when the reproduction is connected to facts, events, and ceremonies of public interest or held in public. However, the portrait cannot be exhibited or put on the market if its exhibition or marketing causes prejudice to the honour, reputation or the decorum of the person portrayed’
. . . .
Luca Dotti and Sean Ferrer Hepburn are the sons of famous Hollywood actress Audrey Hepburn. They brought proceedings . . . against Italian corporation 2223 S.A.S. di MB Management & Entertainment S.R.L. (the Defendant), for the unauthorized use of their mother’s likeness.
The Defendant had produced and commercialized nine types of t-shirts representing just as many images portraying the likeness of Ms Hepburn. More specifically, the t-shirts carried the likeness of a woman wearing a sumptuous black dress, a diamond necklace and a tiara in her hair, together with big dark sunglasses and a cigarette with a mouthpiece. All these elements stood to recall, to the general viewer, the character of the young and elegant Holly Golightly in ‘Breakfast at Tiffany’, played by Hepburn. Other images represented the likeness of the actress under a more ‘modern’ angle, by showing her covered in tattoos, or chewing a big bubble gum, or doing a vulgar gesture with her middle finger.
This unrealistic and inelegant interpretation of their mother’s likeness was considered by the Claimants as detrimental to her reputation and honour. Therefore, they sought a declaration of infringement of her image rights as well as compensation of damages, both for profit loss and the weakening of the commercial value of Hepburn’s image, as well as for the moral prejudice to her reputation.
In response, the Defendant argued that the images at hand did not consist of a mechanical representation of the likeness of the actress but, rather, a new, different, original work, which could not in itself be considered a violation. The intent was not that of devaluing the likeness of the actress or her reputation, but rather revisiting the female image through an empowering representation. Furthermore, it claimed to have lawfully used the image since the interested person was a well-known public figure so that the use would fall under the exceptions in Article 97 of the Italian Copyright Act.
. . . .
The Turin court reaffirmed the approach of earlier Italian case law, also recalling that the public interest defence, which is to be applied strictly . . . ‘does not apply where images taken from a film are published and the publication takes place in a context other than that of the cinematographic work and its marketing’.
. . . .
Having ruled out the applicability of Article 97(1), the court considered Article 97(2) applicable instead. This provision states that, even where lack of consent could be disregarded due to exceptional circumstances, the use of one’s own image is still prohibited when the use is detrimental to the honour, reputation or dignity of the person portrayed . . . . Since the images on the t-shirts portrayed the likeness of Ms Hepburn with disregard to her real appearance and her elegance, the court found that the use at hand caused a prejudice to her reputation and dignity.
PG suggests that, as a general proposition, indie authors should avoid using the images of famous people (even if deceased) on book covers, promotions, etc., unless they have been dead for a long time – Ms. Hepburn died on January 20, 1993.
If an indie author is publishing a book across a variety of different national borders via Amazon, even if the use of an image might pass muster under US law, the laws of other nations might give rise to claims for damages.
PG further suggests that if someone plans to sue an author for misusing an image for a self-published book, it is quite likely that this person/entity would also sue Amazon in the same proceeding.
Amazon’s involvement would trigger Paragraph 5.8 of KDP’s Terms and Conditions which reads as follows (Highlights are PG’s. He has also separated out some of the sub-parts of the original legalese into subparagraphs for ease of reading):
5.8 Representations, Warranties and Indemnities. You represent and warrant that:
(a) you have the full right, power and authority to enter into and fully perform this Agreement and will comply with the terms of this Agreement;
(b) prior to you or your designee’s delivery of any content, you will have obtained all rights that are necessary for the exercise the rights granted under this Agreement;
(c) neither the exercise of the rights authorized under this Agreement nor any materials embodied in the content nor its sale or distribution as authorized in this Agreement will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights, or contain defamatory material or violate any laws or regulations of any jurisdiction;
(d) you will ensure that all Books delivered under the Program comply with the technical delivery specifications provided by us; (e) you will be solely responsible for accounting and paying any co-owners or co-administrators of any Book or portion thereof any royalties with respect to the uses of the content and their respective shares, if any, of any monies payable under this Agreement; and (f) you will not attempt to exploit the KDP service or any other Amazon program or service.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold Amazon, its officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any breach of your representations, warranties or obligations set forth in this Agreement. We will be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.
PG notes that that, in the event that someone felt an author had violated her/his image or publicity rights and was considering a lawsuit, author Jane Jones of Tincup, Montana, might not make a particularly attractive defendant from whom to collect a large amount of money.
However, Ms. Jones and Amazon combined would have the means to pay a very large judgment if the complaining party was successful in a lawsuit pursued jointly against both of them.
Hundreds of emails were deleted from the accounts of Robert Indiana and his caretaker in the period leading up to the artist’s death and the beginning of the legal battle over the rights to his works such as the iconic “LOVE” image, according to an independent consultant’s report filed in federal court Wednesday.
The attorney for the art dealer that is suing Indiana’s estate included the report with a letter, filed in U.S. District Court in New York, asking the judge to settle the lawsuit in his client’s favor, saying that caretaker Jamie Thomas, who also had power of attorney for Indiana, deleted emails that would have proven their case.
Luke Nikas, the lawyer for the Morgan Art Foundation, said the missing emails are important because they might reveal Indiana’s attitude and mindset about the work in dispute, as well as other issues in the lawsuit. He’s asking the judge for what he called “litigating-terminating sanctions” against Thomas and Indiana’s estate because key evidence was willfully destroyed.
James Brannan, the Rockland-based attorney who represents Indiana’s estate and is a subject in the Morgan lawsuit, called the move “a Hail Mary pass with no receivers in the end zone.”
. . . .
According to the report, about 500 emails were deleted, including 227 messages between Thomas and Indiana, leading up to and soon after Indiana’s death in his Vinalhaven home, the Star of Hope, in May 2018. In the suit it filed against Indiana the day before he died, the Morgan Art Foundation alleges that Thomas and others close to Indiana isolated him before his death and made fraudulent artwork under his name. The Morgan Art Foundation has held rights to many of Indiana’s best-known and most-valuable artworks, including his widely reproduced “LOVE” image, since the late 1990s, and contends the value of Indiana’s art and reputation were harmed by the actions of Thomas and others.
“Indiana’s knowledge and approval and state of mind were critical, and it was obvious he used email frequently, yet all his emails were destroyed,” Nikas said in a phone interview. “When a central witness who can no longer testify has had a substantial percentage of emails destroyed, the only way (forward) is to terminate the case in Morgan’s favor. It’s clear to us the deletion was intentional.”
In December 2018, celebrities and collectors jetted into South Florida for Art Basel Miami Beach, the annual contemporary art fair. Hundreds of people in blazers and party dresses crowded into the Rubell Family Collection, a private museum, for the opening of an exhibit of work by the late Purvis Young. Visitors wound through the rooms filled with paintings and snapped selfies destined for Instagram. They jammed onto a back patio where pink lights illuminated the palm trees. A bank sponsored the cocktail bar.
Young had made thousands of paintings during his lifetime, and this midcareer selection of about 100 pieces — which was grouped by motif: “Warriors,” “Drugs,” “Holy Men and Angels,” and so on — took up the museum’s entire ground floor. Perhaps the most famous painter to ever come out of Florida, Young had depicted the struggles and joys of Miami’s poor black community and was branded an “outsider artist.” His work is in the collections of New York’s Metropolitan Museum of Art and two Smithsonian museums. Lenny Kravitz, David Byrne and Jane Fonda are all professed fans.
Eddie Mae Lovest, a petite 62-year-old in jeans and a tank top, slid through the crowd from painting to painting, pausing for a few seconds at each. Young’s works were among the first things that she noticed when she stepped off a Greyhound bus into downtown Miami in the early 1970s, a pregnant teenager fresh from the woods of Georgia. “It was me coming from a little old country town,” she had explained the day before the art show. “It was so many lights and so many people, and all these big buildings.” She thought it was crazy that someone had nailed hundreds of paintings all over abandoned buildings in Goodbread Alley, a desolate stretch of 14th Street where, decades earlier, johnny cakes were sold out of shotgun shacks. The paintings, on scraps of wood and broken doors, depicted funerals, wars, celebrations. They were full of stringy figures with extra-long bellies, long arms stretched up to the sky. “I was like, ‘Who the hell let these kids be drawing on their buildings?’ ” Lovest said. “Where I come from, you don’t draw on people’s stuff!”
Walking to her job at a downtown dry cleaner, Lovest would pass the Bahamian restaurant where Young sometimes helped the owner. The artist had a thick build, serious face and a wisp of a mustache. Soon, “we became the best of friends. For 37 long years … I took care of him, and he took care of me, from the time I met him until the time he died. Never was married. Never was girlfriend and boyfriend. Just the best friend I could have ever had.”
Young never had a wife or biological children. When he died in 2010, he named Lovest and 12 of her daughters and grandchildren as the main beneficiaries of his will. He left hardly any cash, but he did leave 1,884 artworks. Lovest assumed a sale would eventually be arranged and her family given its due. So she was surprised in 2018 to learn that a judge had let lawyers take all of the art to satisfy a half-million dollars in bills racked up on Young’s behalf. Her family hadn’t gotten a cent — or a single painting.
. . . .
Purvis Young grew up in Overtown, a historically black neighborhood in Miami once known as “the Harlem of the South.” The area was devastated when Interstate 95 was built right through it as part of urban renewal efforts of the 1950s and ’60s. Released from prison in 1964 after serving three years for breaking and entering, Young could be seen working near the highway in paint-splattered clothes, his outfit sometimes topped off with a beret. Neighborhood guys would scrounge scraps of plywood for him to use as canvases. Firefighters who were painting hydrants would bring him what was left in their buckets.
. . . .
Young was moved by the troubles he saw in the news: the Vietnam War. Protests. Sit-ins. Angels, he said, visited him and told him to paint. “I didn’t have nothing going for myself. That was the onliest thing I could mostly do,” Purvis said in a 2001 book, “Souls Grown Deep.” He returned to the same subjects over and over again: refugees arriving on boats, busy cityscapes full of trucks and buses, wild horses. The people in his work danced, prayed and grieved — often in crowds, suggesting an urgency. Pregnant women were a frequent theme; Purvis imagined them giving birth to angels and bringing forth a new nation. Sometimes his pregnant women had dozens of squiggly babies around them.
When he wasn’t painting, Young, a high school dropout, spent hours at the library, flipping through volumes about Vincent van Gogh and Henri de Toulouse-Lautrec, which charmed the librarians. When he learned about the “Wall of Respect,” a 1967 mural in Chicago that celebrated black history, he nailed up his own paintings in Goodbread Alley. “My feeling was the world might be better if I put up my protests,” he said in “Souls Grown Deep.” “I figured the world might get better, it might not, but it was just something I had to be doing.”
Young fit into the “self-taught,” “outsider” or “folk artist” genre that started gaining steam in the ’70s. His librarian friends arranged an exhibit of his work. The city hired him to do a few murals. Curious tourists coming off the new highway would stop and buy paintings for cash.
. . . .
By the mid-’70s when the buildings in Goodbread Alley were demolished, Young was being taken seriously as an artist. In 1989, a Miami art dealer, Joy Moos, signed Young to an exclusive contract and introduced his work to contemporary art galleries in New York and Chicago. Now 87, Moos recalled taking the artist to the dentist and helping him open his first bank account. In some ways, she said, “it was like taking a child.”
A Cuban Santeria priest named Silo Crespo acted as Young’s manager. According to Moos, Crespo told her that Young deserved a $30,000 or $60,000 base salary, plus commissions. When Moos balked — Young’s pieces sold for a few hundred or few thousand dollars, which she shared with the artist in an industry standard 50-50 split — Crespo put Santeria curses on her family. She hired a priestess to remove them: “I had to have the gallery cleaned. I had to do all this voodoo stuff with a cut chicken head.”
Leon Rolle, then a practicing lawyer, said Young asked him for help ending his contract with Moos so the artist could be free to negotiate with Gerard C. “William” Louis-Dreyfus — billionaire energy mogul, father of actress Julia Louis-Dreyfus and collector of self-taught artists. In Rolle’s telling, Louis-Dreyfus offered Young $3 million for 1,500 pieces and dangled the idea of sending him to Paris to paint. But the collector was worried about oversupply and wanted Young to destroy a third of his inventory. Rolle said Young rejected the deal, griping, “They never told Shakespeare he wrote too much!” (Both Crespo and Louis-Dreyfus have since died. Jeffrey Gilman, president of the William Louis-Dreyfus Foundation, doubted the billionaire would have wanted art destroyed: “He couldn’t even bring himself to sell anything!” Moos said Rolle and Crespo had unrealistic expectations of the value of Young’s work and didn’t understand the market.)
Young’s standing in the art world was solidified in 1994, when the Smithsonian American Art Museum (SAAM) bought one of his works, an untitled piece from around 1987.
. . . .
By the mid-’90s, Young had moved into a studio in Miami’s industrial Wynwood neighborhood, where he slept in a recliner with three TVs blaring at once. “One with Fox News,” said Sharon Rolle, “and one for the sex movie” — Eddie Mae laughed — “and one with his History Channel.” “And jazz music playing,” added Leon.
As his artwork piled up, the space became a fire hazard, and in 1999, Young faced eviction. By coincidence, art collectors Don and Mera Rubell, who had helped launch the careers of Keith Haring and Jeff Koons, admired Young’s work at a friend’s house and dropped by his studio. “With him, it’s all in the gesture,” Mera Rubell said at her museum this spring. “He could put 100 figures in a crowd just with his single wiggle and you could know they’re in protest, or a crowd witnessing a funeral.” She compared him to Edgar Degas, Georges Seurat and Alberto Giacometti.
The Rubells offered to buy his entire inventory, more than 3,000 pieces. Mera Rubell declined to disclose the price, but locals have speculated that it was anywhere from $60,000 to $1 million. Young told Lovest it was $85,000, but she’s not sure that’s right either. Whatever the amount, it was enough to save him from eviction. The Rubells vowed never to sell Young’s work and have gifted 493 of his pieces to institutions. When they gave 91 pieces to the Tampa Museum of Art in 2004, Sotheby’s appraised the gift at $1 million, an average of nearly $11,000 per piece; 109 works donated to Morehouse College in 2008 were valued at more than $1 million, over $9,000 apiece.
In Wynwood, around 2005, Young also met a gallerist named Martin Siskind who became his new manager. Now 78 and operating a gallery in Little Haiti, Siskind recalled the artist had a touch of cunning: “Everyone talks about, ‘He was a friendly giant, very ignorant, didn’t know the ways of the world.’ That couldn’t be further from the truth! People would try to take advantage of him. He felt he took advantage of them! Soon as they bought 10, 20 paintings, he’d say, ‘Man, I could paint another 20 paintings this afternoon.’ ”
It wasn’t long, though, before Young came to believe Siskind was the one trying to take advantage of him. He complained that Siskind allotted him just $500 a week, refused to provide an accounting of art sales and changed the locks to the warehouse where his paintings were stored, according to a lawsuit the artist later filed against Siskind. In January 2007, while Young was in the hospital for a kidney transplant, he fired Siskind from his bed in intensive care and retained a lawyer, Richard Zaden, to sue him. “We stopped what we were doing and put his case to the front burner,” Zaden recalled. Siskind argued their relationship had been a partnership and demanded 50 percent of Young’s inventory — about 1,000 pieces — to end it. He also told a probate judge that Young required a guardian. Young found out only when a court-appointed lawyer appeared at his bedside to perform an evaluation.
Guardianship is intended to protect vulnerable people, such as those with dementia, from mismanaging their finances or making harmful decisions. But critics of the system say it’s too easy to put a ward under a guardianship and give a stranger power over his life. Under Florida law, any adult can file a petition alleging that another is incapacitated. A three-person team investigates and reports to a probate judge. (One of the three must be a physician.) The judge decides whether to appoint a guardian, who can suggest which of the ward’s rights — such as voting or determining his own residence — should be taken away. Any high school graduate can become a professional guardian if they fulfill certain requirements, which include completing a 40-hour course and passing an exam, a credit check and a background check. Guardians are paid by the ward, as are lawyers brought in for court proceedings. As these bills add up, they can drain a ward’s savings. Critics also complain of coziness between judges and lawyers who work closely in guardianship courts.
People close to Young felt Siskind had sought the guardianship as retaliation, but Siskind insists he only had good intentions. “I thought [the guardians] would take care of him, and I could step aside and hope for the best,” he told me.
Miami-Dade probate court judge Maria Korvick, who oversaw Young’s guardianship case, declined to comment for this story, citing ethics rules, but in a 2018 court transcript, she remembered Young as someone who was in “very, very bad shape. … He didn’t like to listen to doctors, and he didn’t like to eat what he was supposed to, but he was a darling man.” She appointed two guardians: Anthony Romano, as “guardian of the person,” was tasked with overseeing Young’s housing and medical care; and David Mangiero, as “guardian of the property,” was charged with overseeing the artist’s assets and finances.
The OP reminded PG of a dispute over an estate that had been going on for over 13 years when he became involved.
The estate was worth about $1 million when the woman had died. She was unmarried and had no children. She signed a will, but then took a long road trip around the country to visit friends and relatives and took her will with her.
During this trip, she made a great many written changes to her will, some in ink and others in pencil. In addition to changing the terms of the will, some of her changes conflicted with other changes she had made. Some changes were partially crossed-out, leaving portions of bequests intact.
PG was hired by a nephew of the deceased to represent him after the 13 years mentioned. He managed to persuade the judge to set a court date for a trial of everyone’s claims. Over 20 attorneys showed up along with about 75-80 heirs and would-be heirs.
The judge told the attorneys that, if their clients did not agree on a settlement, he was going to enter a judgment that almost everyone in the courtroom would not like. He then announced that he would start the trial in three hours unless the case had been settled by then.
The attorneys got together in another room in the courthouse. They first agreed that no one wanted to attempt to try the case because 1) it would take anywhere from several days to several weeks, 2) no one had the slightest idea how the judge would rule and 3) regardless of how the judge ruled, someone would appeal the verdict, it would take a very large time for the appellate court to review the case and it was almost certain that court would find something the trial judge did wrong and, potentially, send the case back for a retrial.
Over the course of two hours, the lawyers came to an agreement that gave everyone something, but nobody as much as they wanted. They then presented the agreement to their clients (some via long-distance telephone [this was before cell phones were in common use, so all the landline phones in the court clerk’s office plus the telephones in various law firms within walking distance of the courthouse were used]). It took about an hour and PG would not want to have heard some of the phone conversations, but finally all the clients agreed and the case was settled.
The moral behind the OP and PG’s war story is that everyone, particularly people like artists and authors who own intellectual property, needs an estate plan. Whether that plan will entail a will or a trust or both will be up to the individual after counseling with an attorney, but anything the attorney prepares will be better than nothing.
And, for heaven’s sake, if you want to make changes later, go to the original attorney or another one to get a little help so that your 30-year-old heirs won’t be over 40 by the time they receive their share of the estate and won’t have to pay most of their inheritance to one or more lawyers.
For the avoidance of doubt, PG hasn’t created an estate plan for well over 20 years and is not going to re-start doing so now.
Unless you are a very wealthy person, any number of attorneys can competently handle the creation of the documents that will make your death easier on your heirs. (PG makes no representations concerning whether any documents will make your death easier for you or not.)
Make sure you tell your attorney about the books, stories, poems, etc., that you have written, the copyrights you have obtained respecting those items and any outstanding publishing agreements you have signed that affect those items so she/he can make provision for their distribution. Preparing a list of such items before you visit the attorney is almost certainly a good idea.
A Missouri bill intended to bar libraries in the US state from stocking “age-inappropriate sexual material” for children has been described by critics as “a shockingly transparent attempt to legalise book banning” that could land librarians who refuse to comply with it in jail.
Under the parental oversight of public libraries bill, which has been proposed by Missouri Republican Ben Baker, panels of parents would be elected to evaluate whether books are appropriate for children. Public hearings would then be held by the boards to ask for suggestions of potentially inappropriate books, with public libraries that allow minors access to such titles to have their funding stripped. Librarians who refuse to comply could be fined and imprisoned for up to one year.
. . . .
PEN America’s deputy director of free expression research and policy, James Tager, called Baker’s bill a “shockingly transparent attempt to legalise book banning in the state of Missouri”. He said it was “clearly aimed at empowering small groups of parents to appoint themselves as censors over their state’s public libraries” and said that books containing sexual themes, LGBTQ characters and exploring the impact of sexual assault could be “on the chopping block if this bill is passed”.
“Every reader and writer in the country should be horrified, absolutely horrified, at this bill,” said Tager. “The fact that a librarian could actually be imprisoned for following his or her conscience and refusing to block minors from access to a book, that tells you all you need to know about the suitability of this act within a democratic society.”
Readers might remember that, a couple of years ago, this blog reported on a lawsuit filed in Italy by former Argentinean footballer Diego Armando Maradona against Italian fashion house Dolce&Gabbana.
The use, by the defendants, of his name on a jersey (below) worn by a model during a fashion show held in Naples in 2009 [Maradona played for Napoli for a few years, and in that city he reached the peak of his career]. The jersey, which was sold neither before nor after the show, carried the number ‘10’, ie the same number used by Maradona while at Napoli, and had the same colour combination as Napoli jerseys. Images of the jersey appeared on general interest media and also on the Dolce&Gabbana website.
. . . .
Maradona sued and claimed damages for EUR 1 million (!) due to the unauthorized commercial exploitation of his name. He submitted that Dolce&Gabbana’s use of his name had allowed them to take an unfair advantage of his repute and also likely misled the public into believing that there would be a commercial partnership between himself and the defendants.
News has reached The IPKat that now the Milan Court of First Instance has issued its decision on the matter, finding in favour of Maradona. The court noted that [the translation from Italian is mine]:
Without any doubt, the use of a decorative element which reproduces a third-party distinctive sign or name, leads – to say the least – to the establishment of an association with that person. If the sign is well-known, also and above all in a non-commercial sector, and conveys – like the sign at issue – particular impressions of historical allure and football excellence, it cannot be freely used by third-party undertakings without the permission of the rightholder.
Generally speaking, PG suggests that you’ll have a quieter life as a fiction author if you create fictional characters with fictional names.
Briefly, there are two classes of potential claims if you use the name of a real person.
In the US, these are state laws, so there is no federal law you can rely on across the US. As you can see from the OP, there are also similar laws in some other countries, so if you publish internationally, you, too may be subject to the laws of Italy even if you live in Wichita.
The two types of claims are usually characterized as follows:
1. “The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona, which shall be referred to in this article as the “individual’s identity”. Protecting the individual from the loss of commercial value resulting from the unauthorized appropriation of an individual’s identity for commercial purposes is the principle purpose of this body of law.” See Findlaw for more.
2. “Invasion of Privacy: Appropriation of a Name or Likeness
An individual may have a cause of action for invasion of privacy when their name, likeness, or some other personal attribute of their identity has been used without permission. For example, a business may use an individual’s personal photograph without consent to advertise its product. Alternatively, a person may use the name and personal information of another without consent for professional gain.
To succeed in an appropriation lawsuit, you must prove that:
1. You didn’t grant permission for the use of your identity.
2. The defendant utilized some protected aspect of your identity.
(The law varies state-by-state on what constitutes a protected aspect of identity. For example, California law expressly protects a person’s name, likeness, voice, signature, and photograph, whereas Florida statutory law is more limited, protecting only a person’s name, likeness, portrait, and photograph. State statutory law differences are frequently minimized by case law, but these differences nonetheless can affect the strength and scope of your claim.)
3. The defendant used your identity for their immediate and direct benefit.
(This “benefit” is typically commercial, as in the use of a personal photograph for advertising. Some states, such as Florida, limit liability to situations involving a commercial benefit. In other states, however, liability may attach even if the defendant appropriated the identity for a noncommercial benefit, such as impersonation for professional gain.)” See Findlaw for more.
PG suggests that you don’t really need to use Kim Kardashian’s name in your novel. Search on the term “name generator” and you will find lots of websites that will help you create a fictitious name for your wealthy Beverly Hills heroine.
The following item is a bit more on the legal side than PG posts on TPV. Since the article is written by a law school professor and discusses a book written by another law school professor, it is highly legal. For PG at least, it does show how the less-traditional forms of property have some fuzzy edges around them.
However, it’s a discussion of the origin of the concept of property in the United States. Property comes in a variety of different forms. First a couple of easy property concepts:
Real Property is what we might usually call real estate – land – a farm, a lot upon which someone builds a house or apartment building, etc. These days, ownership of real property is usually acquired when a seller who owns the property transfers title to the property to a buyer. A deed is usually involved, describing the real property being conveyed with enough detail so the property conveyed won’t be mistaken for other property. Deeds are typically recorded with a local government agency and are part of a public record that allows anyone who has questions about a piece of real property and its past and present ownership to examine the record and the documents transferring title.
Personal Property is all kinds of other stuff that isn’t real estate. Your clothing is personal property. An automobile is personal property. The furniture and furnishings in your house (as opposed to the house itself and the land on which it sits) is personal property.
Intellectual Property is a right to intangible property created by someone – a painting, book, photograph, sculpture, etc., etc. Intellectual Property usually includes not only the right to own, transfer, etc., the original of the painting, photo, etc., but also the right to make copies of the original creation and/or to permit others to make copies, whether exact copies of the original or copies that derive from the original – a novel that is adapted into a play is but one example.
Strictly speaking, when a photographer makes a photo using a traditional film camera, the photographer is creating a negative which appears after proper chemical development. From that negative, one or more positive prints can be made. The photographer owns the negative and the exclusive right to make prints of the negative. If the photographer takes a photo of a painting created by someone else, there can be a couple of different types of intellectual property involved – the IP of the painter that is associated with the painting and the IP of the photographer associated with the creation of the photo.
With that quick and dirty introduction, here is an article about Pierson v. Post (footnotes are omitted, but you can see them in the original, of course).
Most American law students are familiar with Pierson v. Post, a case that has been a fixture in American property law casebooks for well over half a century. Decided by the New York Supreme Court in 1805, Pierson v. Post is used in property law courses to illustrate the question of how property rights arise in wild animals. Today, it is frequently taught alongside cases exploring how property rights arise in contemporary contexts such as ground water, human genetic materials, baseballs hit into stadiums crowded with fans, and the like. The facts of Pierson are simple and memorable: Post is in pursuit of a fox on a beach in Long Island when Pierson interrupts the hunt and kills the fox. Has Post acquired a property interest in the fox by virtue of the fact of being engaged in pursuit of it? The New York court deciding the case canvassed a range of European authorities going back to Justinian. The majority ruled that no property rights could arise in a wild animal unless it was captured. The rule it advanced has the virtue of clarity. But it risks being unfair to Post, particularly if he was at the point of killing the fox and/or if his labors had made it easier for Pierson to kill it. The dissent, in a witty opinion by Judge (and future U.S. Supreme Court Justice) Henry Livingston, would have allowed for property rights in the fox to arise through something short of actual capture, namely, imminent taking. The dissent’s solution might be fairer to Post, perhaps, but specifying what counts as an imminent taking is no easy task, entailing more work for lawyers and judges.
In my own property law course, Pierson v. Post has appeared either at the beginning or the end, but in neither instance have I devoted more than half an hour of a single class session to it. I teach Pierson v. Post because it neatly illustrates the difference between clear rules and blurry standards, but also because it is a “classic.” I do not want my students to leave the course without having a glancing familiarity with something they are “supposed” to have run into in law school.
What has been a minor pedagogical experience for me and my students has been, it is fair to conclude, an obsession for Angela Fernandez. She has spent a decade working on her new book, Pierson v. Post: The Hunt for the Fox, and has recently authored a “rewrite” of the Pierson v. Post dissent in which she adopts the style of someone writing in 1805 but advances feminist and animal rights sensibilities. My review will cover both the book and the “rewritten” dissent and will set them in relationship to one another.
Fernandez offers us a history of Pierson v. Post backed by impressive archival research. She shows how our simple lawyerly rendering of Pierson as a choice between different rule regimes obscures the complex literary, social, and intellectual universes that shed light on, even as they are illuminated by, the case. However, Fernandez follows no linear narrative, advances no neat argument, offers no simple “takeaway.” Instead, she picks up on the different leads the case presents and follows each into different archives. The result is a book without a stable center. The reader is offered exhaustive treatments of the following, each of which speak to some aspect of the case: the ribaldrous masculinist culture of literary games and theater engaged in by Anglo-American lawyers in the early nineteenth century; the practices of hunting foxes and whales; the lives of the Pierson v. Post litigants, their lawyers, and the judges; the relations between Native Americans and settlers in early nineteenth century New York; different legal characterizations of land and animals; the appropriation of Pierson v. Post in nineteenth century treatises and twentieth century casebooks; and so on. Fernandez even gives us photographs of the beach on Long Island where that famous fox hunt took place over two hundred years ago.
. . . .
Apart from its structure, to my mind, the most important contribution of Fernandez’s book is the way it foregrounds the plurality of what law is. We might think of law as giving us rules to solve problems. In one sense, it is that. Fernandez would surely agree. Pierson is, after all, a case that presents us with different rules for deciding when wild animals become private property. However, in the book, Fernandez shows brilliantly that law has been—and continues to be—a great deal more. Specifically, she highlights the many ways in which the law relates to, produces, and offers up things that are not instrumental in any simple sense, things that constitute a kind of excess, things that refer back to themselves. Here I have in mind Fernandez’s exploration of the famous Livingston dissent in the Pierson case that takes us into the early nineteenth century masculinist legal culture of literary allusion, games, and theater and, later in the book, her investigation of the world in which law is the writing of treatises and case books all relating to and revising one another. The law, as she describes it for us, is these things—all of them excessive or self-referential in important respects—as much as it is about solving any particular dispute or problem. I agree entirely.
With this as background, I want to suggest that Fernandez’s “rewritten” dissent in Pierson v. Post—her act of “updating” the case to reflect her feminist and animal rights sensibilities in the voice and tone of someone writing in 1805—is yet another instantiation of this self-referential, excessive, allusive, theatrical or game-like legal tradition she explores in such depth. What is the point of “rewriting” a dissent to a two hundred-year old opinion, one might well ask? Why not just ignore the opinion, or criticize it, or declare it to be unjust or wrong? Why go through the laborious exercise of “rewriting” it? What is this if not a literary exercise—another act of self-referential theater or a game–in which the object points to itself as much as to the new politics it seeks to perform?
What is the relationship between this kind of self-referential legal-literary exercise with the conventional disciplinary historical one of situating Pierson v. Post “in context”? One of Fernandez’s stated goals in the book is to change our understanding of the case itself. As she herself puts it: “My intention in this book is to disrupt any previously dominant understanding of Pierson by changing the way we think about it.” (P. 326). We know an enormous amount about Pierson v. Post thanks to Fernandez’s attempt to track down everything related to it. But we do not really get a clear sense of how her hunt for details and the consequent massive building up of context relates to the self-referential, literary, theatrical, game-like quality of the law reflected in the original opinions in Pierson v. Post, the subsequent appropriation of the case by legal writers, and in Fernandez’s own decision to “rewrite” the Pierson dissent after learning all that seems humanly possible to learn about it. How does one historicize a game? Is history the best way of understanding a game? Is playing the game a better way?
Fernandez does both. On the one hand, she historicizes the games of law: the book can be read as history. On the other, as revealed in the book and the “rewritten” dissent, Fernandez plays the games of law herself, both in structuring her book like a fox hunt (itself a sport) and following her prey wherever it takes her and in artfully “rewriting” the Pierson v. Post dissent to transpose her political sensibilities into the language of the early nineteenth century. She offers novel ways of doing history and playing with and in history. For these reasons, her work merits our attention.
Politicians and social critics who worry about “the curse of bigness”—and vow to rewrite antitrust law to break up Facebook and Google—forget what happened the last time the government used the law against a Silicon Valley company. In 2012 the government successfully sued Apple for daring to compete with Amazon in selling e-books. The unintended result was not exactly a victory for the consumer or for competition: the continued dominance of Kindle, Amazon’s e-book format and reading device; increased e-book prices; and suppressed e-book innovation.
Chris Sagers, a law professor at Cleveland State University, explains in “United States v. Apple: Competition in America” what he sees as confusion about antitrust law. His analysis can be helpful—he notes the long history of companies invoking claims of “predatory pricing” as a cudgel against more efficient competitors and stresses that consumers often benefit when industries and companies are driven out of business—but he is confused about the case itself.
His thesis is that Apple’s entry into the e-book market was so clearly a violation of antitrust law that critics of the case must not believe in competition. But critics object to an interpretation of antitrust law that ended up punishing Apple for introducing a new pricing approach—an approach that is now common in every other area of online sales. Mr. Sagers forgets the guardrail rule of antitrust: Don’t bring cases against innovations that create more competition.
Consumers were delighted when Amazon launched its Kindle e-reader in 2007, and book publishers were happy to sell books in digital form. But there was an unusual feature. In its selling of e-books, Amazon operated according to the same pricing arrangement that had governed the sale of print books—that is, it bought e-books wholesale and chose its own price for them, just as bookstores had long done with print books. Brick-and-mortar bookstores needed this pricing flexibility for many reasons, not least to clear their inventory of unsold books by means of lower prices. The arrangement let Amazon sell e-books for years as a loss-leader—at the low price of $9.99—to boost profitable sales of its Kindle devices.
Around the same time, Apple had set about licensing music, video and games so that consumers would have reasons to buy its iPad. Apple realized that, for digital goods, there was no reason to follow the wholesale model. It could simply set up a revenue-sharing formula. Content owners and app developers—think of an iPad or iPhone game, such as “Minecraft” or “Fortnite,” that offers premium features—could pick their own price, even choosing to offer content free, and Apple would take 30% of any sales as a commission.
When Steve Jobs decided to include e-books on the iPad in 2010, Kindle had a 90% market share. So book publishers were again delighted—that Apple would be entering the market with its revenue-share model and letting publishers set the prices for their e-books. The largest publishers met among themselves to agree on the terms for licensing their books to Apple. The government sued, claiming an unlawful conspiracy masterminded by Apple.
Mr. Sagers sees this as an open-and-shut case of an unlawful pricing conspiracy and expresses surprise that there was so much support for the book publishers and Apple. He rightly dismisses the self-serving argument that books are so culturally important that publishers and Apple deserved an antitrust exemption. He is also right to note that Amazon was not, despite its huge market share, an unlawful monopolist—big is not always bad.
. . . .
Mr. Sagers believes that opposition to the Apple case shows that Americans are ambivalent about competition. There are times, he says, when “competition seems destructive.” When antitrust law requires firms to compete in such circumstances, then “antitrust itself has seemed like a failure.” The government claimed that Apple conspired with book publishers, risking higher prices, but the case was perceived as a government favor to Amazon, which it was.
Indeed, people objected to the Apple case because it was ill-advised—limiting consumer choices and blocking lower prices. Appeals Court Judge Dennis Jacobs made this point, writing in his 2015 dissent that Apple’s conduct “immediately deconcentrated the e-book retail market, added a platform for reading e-books, and removed barriers to entry by others.” With Apple in the game, Amazon’s 90% market share fell to 60%. Now it’s back up to 83%, according to the latest industry estimate. As competition decreased, prices increased. The typical price for a Kindle best seller is now in the range of $14.95.
. . . .
The Apple case violated the first rule of antitrust: First, do no harm.
PG hasn’t read the book that is the subject of the WSJ review. However, the author of the review wildly misstates the purposes, activities and actions of Apple and all but one of the largest publishers in the United States.
Let us review the actions and actors in this matter (which were extensively documented and discussed on TPV during the days of yore):
While Amazon was not the first entity to sell ebooks, it was the first to sell ebooks from traditional publishers at a substantial discount from their list prices, which correlated with the suggested list prices for printed versions of the same books.
Amazon also was revolutionary in permitting self-published books (including ebooks) to be listed and sold side-by-side on the same basis as traditionally-published books.
The six largest publishers in the United States – Random House, Hachette, HarperCollins, Macmillan, Penguin, and Simon & Schuster had developed a cozy little dinner group consisting of their CEO’s who met about every three months in a private dining room in Manhattan to talk about their mutual concerns – most often Amazon’s habit of discounting the prices of their books and what they could do about it. These six produced the majority of books sold in the US and were receiving complaints from their traditional bookstore customers about Amazon’s low prices. The publishers did not want to “cannibalize” their sales of printed books and were the recipients of a growing number of complaints from their traditional bookstore customers. No company attorneys were present during these dinner discussions.
PG will note that private meetings of the top executives of large companies that dominate an industry to discuss the pricing of their products are almost always a bad idea and, by themselves, raise a big red antitrust flag. Competent corporate counsel would always advise against such a practice.
Apple was planning to introduce its iPad in January, 2010, and include an iBookstore as one of the product’s attractions.
PG notes that Apple has never been a fan of significant discounts for the products it sells.
In December, 2009, Apple’s senior VP of Internet Software and Services, Eddy Cue, contacted the members of the Publishers dinner group to set up meetings.
During these meetings, Cue said that Apple:
Would sell the majority of e-books between $9.99 and $14.99, with new releases being $12.99 to $14.99, higher prices than Amazon was charging.
Apple would use the same “agency pricing model” that it used in the App Store for ebooks.
Agency Pricing allowed the Publishers control the retail price of the e-books with Apple receiving a 30% commission.
Most significantly, Apple would require what is generically described as a “Most-favored nation” clause in its contracts with publishers that allowed Apple to sell e-book at the lowest price of its ebookstore competitors (read “Amazon”).
PG doesn’t recall if the publishers had another private CEO dinner or not, but evidence at the later antitrust trial showed the Big Six publishers called each other over 100 times in the week before signing the Apple agreements. Everyone except Random House boarded this bandwagon.
In January 2010, Apple held one of its typically flashy product launches for the iPad together with its associated ebook, music and video stores.
During the post-launch mingling, Wall Street Journal reporter Walter Mossberg asked Steve Jobs why people would pay $14.99 for a book in the iBookstore when they could purchase it for $9.99 from Amazon. In response Jobs stated that “The price will be the same… Publishers are actually withholding their books from Amazon because they are not happy.” In other words, the publishers would force Amazon to raise its ebook prices to match those in the iBookstore.
Amazon complained to the Federal Trade Commission and, rather than not being able to sell any ebooks of the major publishers, switched to the agency model after negotiations with the major publishers. This resulted in an average per unit e-book retail price increase of 14.2% for their new releases, 42.7% for their NYT Bestsellers, and 18.6% across all of the Publisher Defendants’ e-books.
Back to the book reviewed in the OP, there was nothing wrong with Apple “introducing a new pricing structure” – agency pricing. Had Apple only done that, no antitrust violation would have occurred. However, when Apple conspired with a group of the largest publishers to force Amazon (and anyone else selling ebooks) to adopt agency pricing when such had not previously been the case, that was an antitrust violation, particularly in the light of what happened to ebook prices after the coordinated joint action took place.
Had the big publishers individually been willing to lose the highly-profitable ebook sales on Amazon as a potential consequence of telling Amazon it had to raise its prices and/or agree to let the publisher set the price, that would probably not have triggered any antitrust concern. Coordination between the publishers to use their combined power to force Amazon raise prices was where the publishers crossed a clear legal line.
With respect to what happened in the court case, each of the publishers admitted guilt, settled the antitrust claim and promised not to do any price-fixing in the future. Apple litigated the antitrust case to the max and lost at every stage.
Although Amazon was not a party to the litigation, Amazon won.
More significantly (in PG’s majestic and resplendent opinion), authors won. Indie authors in particular won. In June, 2010, a couple of years before any antitrust litigation had been commenced, Amazon introduced its 70% ebook royalty option which has put a great deal of additional money into authors’ pockets ever since.
Last week, independent production company Magic City Films announced that it would be bringing James Dean back from the dead. Not literally, but digitally, using full-body CGI and existing footage and photos. The Rebel Without a Cause actor will become the secondary lead in a new Vietnam War film called Finding Jack. The two directors, Anton Ernst and Tati Golykh, said they searched for a suitable actor but, after months of research, Dean was chosen for the part.
The news has been met with a barrage of criticism from the Hollywood elite, with Chris Evans calling it awful and the lack of understanding “shameful,” while Elijah Wood just said “nope.” But James Dean isn’t the first entertainer to be digitally resurrected, and he certainly won’t be the last.
In 2017, Peter Cushing, who died in 1994, was brought back to life to reprise his role as Grand Moff Tarkin in Rogue One. Similarly, Philip Seymour Hoffman and Paul Walker, who both died during production of their respective films, were digitally re-created to finish their movies. Carrie Fisher was also famously digitally re-created for the ninth installment of the Star Wars saga.
On Tuesday, newly-formed IP licensing firm Worldwide XR announced that it holds the rights to more than 400 dead celebrities, actors, historical figures, musicians, athletes, and others. The lid of Pandora’s box has flung wide open, and we could be about to see a whole glut of dead celebrities reappearing on our screens.
. . . .
“We were being approached by some filmmakers who wanted to make their, movie and they wanted to hire James Dean,” says Worldwide XR CEO Travis Cloyd. “It was aligned with our objectives, and we did our vetting, and we read the script, and we talked it over with the family, and it just felt like it was a good time.”
Mark Roesler started CMG Worldwide in 1982 after finding that deceased celebrities had no one to represent them post-mortem. Roesler carved out a niche in representing the estates of dead stars, and the families of these celebrities began approaching CMG looking for representation. Elvis Presley and James Dean became the firm’s first two clients.
These representation rights give the company the “right of publicity” under the US-based state-by-state law, which is at the heart of dead celebrities’ image rights. The right of publicity was enshrined in Californian state law in 1985 and declares that the rights to use a celebrity’s image, including their voice and likeness, will be transferred to the deceased actor’s estate once that actor passes away, with any money from licensing going to the estate. Anyone wanting to use that actor’s image must gain permission from the actor’s estate.
The UKIPO (United Kingdom Intellectual Property Office) updated its Formalities Manual on the 28th of October 2019,adding under 3.05 a provision that “An AI Inventor is not acceptable as this does not identify “a person” which is required by law. The consequence for failing to supply this information is that the application is taken to be withdrawn under s. 13(2)”.
Although one could question how important and breathtaking this amendment is, still, it signals the intention of the UKIPO and the way that it perceives AIat this point of time. It is difficult to be sure what has triggered this new provision,, but it could be related to the patent applications submitted in the UKIPO, UPSTO and EPO, respectively, concerning (i) a new form of beverage container based on fractal geometry and (ii) a device for attracting enhanced attention valuable for search and rescue operations. What these patent applications have in common is the inventor, an AI called Dabus.
Naturally, humans are involved in these patent applications, namely in the form of the applicants, two professors from Surrey University. The question is, of course, why the applications name the AI program as the inventor, if not to provoke a reaction from major patent offices.
. . . .
Professor Ryan Abott, also a professor at Surrey University, is the head of the application’s project. One of his statements available on the website of Surrey University states,
“Powerful AI systems could hold the key to some of the mega challenges facing humanity – from the cure for cancer to workable solutions for reversing climate change. But if outdated IP laws around the world don’t respond quickly to the rise of the inventive machine, the lack of incentive for AI developers could stand in the way of a new era of spectacular human endeavor.”
In fact, the patent applications are part of a project, the Artificial Inventor project.
Plaintiff sued its former employee and alleged, among other things, that defendant violated the anticircumvention provisions of the Digital Millennium Copyright Act (17 USC 1201). While defendant was still an employee, she used her username and password to access and download copyrighted material stored on plaintiff’s server after she had already accepted an employment offer from a competitor.
. . . .
The court’s holding centered on what the DMCA means by “circumvent a technological measure”. The statute requires that for there to be circumvention, one must “descramble a scrambled work . . . decrypt an encrypted work, or otherwise . . . avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.”
. . . .
The court found that even if the use that defendant made of that access was not something that plaintiff would have authorized her to do, i.e. copy the materials at issue, defendant’s alleged abuse of her logon privileges did not rise to the level of descrambling, decrypting, or otherwise avoiding, bypassing, removing, deactivating, or impairing anything.
PG assures one and all that TPV is not going to become a legal blog.
However, the Digital Millennium Copyright Act, enacted in 1998, is an important protection for authors, especially where ebooks are involved.
As anyone paying attention knows, pirated intellectual property in digital form is a lovely thing for those who don’t want to pay creators, are cash-strapped college students, etc., etc. While making a copy of a physical book doesn’t require any particular skill, it does require time and labor. Making a copy of an ebook is much less difficult, even if it is protected by DRM (Digital Rights Management) software.
Here’s a link to one of many online descriptions of how to remove DRM protection. This particular link includes a step-by-step description of how to use Calibre plus a third-party DRM Removal Plugin to remove copy protection from every major ebook format. Under current law, doing this is illegal as is creating software to remove DRM protection, even for your own use.
The provisions of the DMCA that prohibit this are generically referred to as the anti-circumvention provision and are found in n 17 U.S.C. 1201(a), 1203, and 1204.
The core of the prohibition is included in 1201(a)(1)(A)
(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
1201(a)(3) provides a couple of relevant definitions:
(3) As used in this subsection—
(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
The Electronic Frontier Foundation has filed suit to invalidate these anti-circumvention provisions or otherwise neuter them. Here’s a link to a recent status report on the litigation written by Cory Doctorow.
POM Wonderful’s advertising claims were false and deceptive. That’s the conclusion of the United States Court of Appeals in upholding the FTC’s ruling. We think it’s a momentous victory for our two clients: American consumers and the cause of truth in the marketplace. You’ll want to read the entire opinion, of course, but here are twelve quotes from the D.C. Circuit’s decision that businesses, attorneys, and law enforcers will be citing for years to come.
“The FTC Act proscribes – and the First Amendment does not protect – deceptive and misleading advertisements.” Companies often cite the First Amendment as a defense in FTC cases. They forget the foundational principle that misleading ads get no constitutional protection.
“The Commission had no obligation to adhere to notice-and-comment rulemaking procedures before imposing liability in its adjudicatory proceeding.” POM claimed that the FTC had to undertake a rulemaking – rather than bringing a lawsuit – because it was imposing a major change to its substantiation standard. Wrong on two counts, the Court concluded. First, the FTC is “not precluded from announcing new principles in an adjudicative proceeding.” But the bigger point is that the legal principles the FTC applied were well-settled “business as usual” standards. As the Court held, “With respect to POM’s establishment claims, the substantiation standard applied by the Commission is consistent with Commission precedent. When an advertiser represents that claims have been scientifically established, the FTC has long held the advertiser to the level of evidence required to convince the relevant scientific community of the claim’s truthfulness.”
“The Commission is often in a better position than are courts to determine when a practice is deceptive within the meaning of the FTC Act, and that admonition is especially true with respect to allegedly deceptive advertising since the finding of a § 5 violation in this field rests so heavily on inference and pragmatic judgment.” Courts give administrative agencies a lot of deference when it comes to subject matters within their purview. For the FTC, that includes determinations of what an ad conveys and when it’s deceptive under Section 5. Why such a standard? Given its decades of collective institutional experience, that’s the FTC’s bread and butter.
“The Commission examines the overall net impression left by an ad and considers whether at least a significant minority of reasonable consumers would likely interpret the ad to assert the claim.” Nothing new there, but the D.C. Circuit offers a succinct reminder of that touchstone. People can interpret ads more than one way and advertisers must substantiate all reasonable interpretations consumers take from their ads.
“In identifying the claims made by an ad, the Commission distinguishes between efficacy claims and establishment claims. An efficacy claim suggests that a product successfully performs the advertised function or yields the advertised benefit, but includes no suggestion of scientific proof of the product’s effectiveness. An establishment claim, by contrast, suggests that a product’s effectiveness or superiority has been scientifically established.” This, too, should be old hat for advertisers. If an ad conveys an efficacy claim, the advertiser needs a reasonable basis to support it. The FTC analyzes that under the Pfizer factors the type of product, the type of claim, the benefit of a truthful claim, the ease of developing substantiation for the claim, the consequences of a false claim, and the amount of substantiation experts in the field would consider reasonable. But once advertisers claim to have a certain level of proof, they’ve upped the ante and “must possess the specific substantiation claimed.” What if an ad conveys a non-specific establishment claim – for example, by saying that a product has been “medically proven” to work or by using visuals that suggest it’s “based upon a foundation of scientific evidence”? In that case, the advertiser “must possess evidence sufficient to satisfy the relevant scientific community of the claim’s truth.”
. . . .
“The use of one or two adjectives does not alter the net impression, especially when the chosen adjectives (such as “promising”) provide a positive spin on the studies rather than a substantive disclaimer.” That’s a quote from the FTC opinion cited favorably by the D.C. Circuit. POM tried to disavow its numerous establishment claims by arguing that it just said the scientific research was “promising,” “initial” or “preliminary.” As the FTC countered, “Those sorts of modifiers do not neutralize the claims made when the specific results are otherwise described in unequivocally positive terms.” The message to marketers: Don’t sprinkle a few adjectives here and there and expect them to undo the net impression conveyed to the buying public.