Feckless heirs in the spotlight

From LinkedIn:

A great article in today’s Australian on the dangers of adult children waiting around for an ‘automatic’ inheritance given a number of recent judgements in this area.

A fundamental right here in Australia is the right of testamentary freedom – the right to leave your worldly goods to who you want when you die. However, that right is tempered by societal obligations and social norms, which means if you don’t leave proper provision for your family, they can challenge your Will to get proper provision.

This sort of challenge is known as Family Provision claim, and the law exists to stop people making capricious or mean spirited Wills that are designed to disinherit someone who should properly be provided for.

However, for too long the law has been used by people to make claims where they don’t have any real need or where the Will was not capricious or deliberately mean – and many of those claims are by adult children.

The importance of the case in this article is that Justice Pembroke is making it clear that he, at least, has had enough of those sorts of claims – and that the Will of a parent should not automatically be upended just because an adult child is not provided for.

Link to the rest at LinkedIn

Inheriting the copyright

From The Legal Genealogist:

The Legal Genealogist trusts that — by now — readers understand that copyright lasts for some time after the death of the person who created the work: the book; the photo; the painting.

Around the world, the minimum time generally is 50 years after the death of the creator. In the United States, it’s generally 70 years after the death of the creator.

What may not be as well understood is who owns the copyright at that point — and how that person comes to own it.

That’s clear from reader questions, like the one that came in yesterday: “In order to claim inheritance of a photo or collection of photos, does one have to explicitly have that inheritance stated in a will? For example, my dad passed away in 2019, and my sister and I were the sole beneficiaries of his will. He left us instructions on where the digital photos were stored and passed on boxes of physical photos…but they are not explicitly mentioned in his will. Do we own the copyright to his photos now?”

Here’s the bottom line: a copyright is just another piece of personal property, like somebody’s car or desk. The only difference is that the car or desk is tangible personal property; a copyright and other intellectual property is intangible personal property. But ownership passes to the deceased person’s heirs just the way that car or desk does.

And as genealogists we should know how property passes to the heirs: by testate succession (when there is a will) or by intestate succession (if there isn’t one). The Copyright Office makes it clear that works with copyrights as well: “You can bequeath a copyright by will or pass it along as personal property under applicable state laws of intestate succession.”

. . . .

In any given case, we start with determining if the copyright owner left a will. If he or she did, then:

• Does the will mention copyrights specifically or intellectual property generally? If so, that provision controls.

• If the will doesn’t mention copyrights, does it mention personal property generally? If so, that provision controls, but there’s a potential hitch here: the provision can’t be limited to tangible personal property.

• If the will doesn’t mention copyrights, or its personal property provision is limited to tangible property, then does the will have a residuary clause (“and all the rest and residue of my estate I leave to…”)? If so, that provision controls.

If the deceased copyright owner didn’t leave a will or if there is absolutely nothing in the will that covers personal property at all, then:

• What state’s law controls how any personal property would be distributed to descendants?

• What does that state’s law say about who’s entitled to inherit personal property?

• Who was alive when the copyright owner died who would have been included in that group?

• Who is alive today who might have a claim to any part of the copyright owner’s personal property?

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

PG says the bottom line for your copyrights and everything else you own is that your heirs will be very grateful to you if you have a will.

While he is not an expert on the laws of inheritance in nations other than the United States, he can say with some assurance that in any country whose laws are derived from the British Common Law and British legal traditions, following this advice is probably a good idea.

As mentioned in the OP, the inheritance laws of each state are somewhat different, but a properly drawn will in one state will almost certainly work about the same way in another.

Inheritance tax laws vary from state to state. Generally, the term “estate tax” refers to the tax imposed by the United States government on larger estates. The term “inheritance tax” refers to taxes imposed by the state where the person is living when they die.

As a general proposition, settling the affairs of a deceased person will be much more simple if that person has a will.

It is an excellent idea for you to hire a competent attorney to draft a will for you. A great many interesting court cases revolve around a will written by the decedent without legal assistance. Another group of interesting court cases is centered on a will drafted by an attorney to which the decedent (or maybe someone else) made handwritten changes.

Where a will is not correctly drafted, and any meaningful amount of money is involved, litigation may ensue.

PG will spare you the details of a war story, but long ago and far away, he managed to resolve litigation over the meaning of a will that had been ongoing for 16 years.

The decedent with an estate of considerable size had a will drafted by a local attorney, which she signed in the manner the law required. She then went on a cross-country trip to visit the significant number of individuals named in the will. She took the original will with her.

While on the trip, she made many handwritten changes to her will, crossing out words, handwriting (in pencil) notes and names and property descriptions with arrows going here and there.

After returning from her trip, the decedent died before she could take her marked-up will back to her attorney so he could make a new one. There was some question whether any of her local heirs might have had access to the will before it was filed with the Probate Court.

Suppose an individual or couple wish to have a will drafted that basically divides the property they own at death between a relatively small number of people or leaves it to a charitable organization. In that case, a lot of different attorneys can do that job without charging very much money.

If an individual or couple have property (including intangible property like copyrights to books) that is worth more than a few hundred thousand dollars, a qualified estate planning attorney may be able to help reduce the estate and inheritance taxes due to state and federal governments by for a legal fee that is significantly less than the amount of taxes due.

PG has been purposely vague in this discussion because, as mentioned, laws vary from state to state and there are factors that may impact probate and death taxes that may be unique to an individual or couple and impact what’s involved for the heirs after their deaths.

It is not unusual (and perfectly justified) that more than a few people may be concerned about what the attorney will charge for her/his services.

It is not at all impolite for you to make an appointment for a meeting with an attorney or, at the beginning of the meeting, to ask in a friendly manner how much the attorney will charge for a meeting to discuss your estate and, on a broad level, what death taxes are may be involved, again in round numbers.

During the meeting, if the attorney recommends that wills, trusts, etc., be drafted or redrafted, it is not impolite for you to ask what the costs will be for the attorney’s services in doing so if the attorney doesn’t include that information in the discussion with you.

It is possible that the attorney may legitimately not know or be able to estimate costs ahead of time due to matters that may arise only after he/she gets started. Quite often, she/he may be able to give you a general range in which your bill will fall.

If you don’t feel good about your meeting with the attorney, you can be assured there are others who perform the same services.

PG says the bottom line for your copyrights and everything else you own is
that your heirs will be very grateful to you if you have a will.

While he is not an expert on the laws of inheritance in nations other than
the United States, he can say with some assurance that in any country whose
laws are derived from the British Common Law and British legal traditions,
following this advice is probably a good idea.

As mentioned in the OP, the inheritance laws of each state are somewhat
different, but a properly drawn will in one state will almost certainly work
about the same way in another.

Inheritance tax laws vary from state to state. Generally, the term
“estate tax” refers to the tax imposed by the United States
government on larger estates. The term “inheritance tax” refers to
taxes imposed by the state where the person is living when they die.

As a general proposition, settling the affairs of a deceased person will be
much more simple if that person has a will.

It is an excellent idea for you to hire a competent attorney to draft a will
for you. A great many interesting court cases revolve around a will written by
the decedent without legal assistance. Another group of interesting court cases
is centered on a will drafted by an attorney to which the decedent (or maybe
someone else) made handwritten changes.

Where a will is not correctly drafted, and any meaningful amount of money is
involved, litigation may ensue.

PG will spare you the details of a war story, but long ago and far away, he
managed to resolve litigation over the meaning of a will that had been ongoing
for 16 years.

The decedent with an estate of considerable size had a will drafted by a
local attorney, which she signed in the manner the law required. She then went
on a cross-country trip to visit the significant number of individuals named in
the will. She took the original will with her.

While on the trip, she made many handwritten changes to her will, crossing
out words, handwriting (in pencil) notes and names and property descriptions
with arrows going here and there.

After returning from her trip, the decedent died before she could take her
marked-up will back to her attorney so he could make a new one. There was some
question whether any of her local heirs might have had access to the will
before it was filed with the Probate Court.

Suppose an individual or couple wish to have a will drafted that basically
divides the property they own at death between a relatively small number of
people or leaves it to a charitable organization. In that case, a lot of
different attorneys can do that job without charging very much money.

If an individual or couple have property (including intangible property like
copyrights to books) that is worth more than a few hundred thousand dollars, a
qualified estate planning attorney may be able to help reduce the estate and
inheritance taxes due to state and federal governments by for a legal fee that
is significantly less than the amount of taxes due.

PG has been purposely vague in this discussion because, as mentioned, laws
vary from state to state and there are factors that may impact probate and
death taxes that may be unique to an individual or couple and impact what’s
involved for the heirs after their deaths.

It is not unusual (and perfectly justified) that more than a few people may
be concerned about what the attorney will charge for her/his services.

It is not at all impolite for you to make an appointment for a meeting with
an attorney or, at the beginning of the meeting, to ask in a friendly manner
how much the attorney will charge for a meeting to discuss your estate and, on
a broad level, what death taxes are may be involved, again in round numbers.

During the meeting, if the attorney recommends that wills, trusts, etc., be
drafted or redrafted, it is not impolite for you to ask what the costs will be
for the attorney’s services in doing so if the attorney doesn’t include that
information in the discussion with you.

It is possible that the attorney may legitimately not know or be able to
estimate costs ahead of time due to matters that may arise only after he/she
gets started. Quite often, she/he may be able to give you a general range in
which your bill will fall.

If you don’t feel good about your meeting with the attorney, you can be
assured there are others who perform the same services.

 

 

 

 

PG says the bottom line for your copyrights and everything else you own is
that your heirs will be very grateful to you if you have a will.

While he is not an expert on the laws of inheritance in nations other than
the United States, he can say with some assurance that in any country whose
laws are derived from the British Common Law and British legal traditions,
following this advice is probably a good idea.

As mentioned in the OP, the inheritance laws of each state are somewhat
different, but a properly drawn will in one state will almost certainly work
about the same way in another.

Inheritance tax laws vary from state to state. Generally, the term
“estate tax” refers to the tax imposed by the United States
government on larger estates. The term “inheritance tax” refers to
taxes imposed by the state where the person is living when they die.

As a general proposition, settling the affairs of a deceased person will be
much more simple if that person has a will.

It is an excellent idea for you to hire a competent attorney to draft a will
for you. A great many interesting court cases revolve around a will written by
the decedent without legal assistance. Another group of interesting court cases
is centered on a will drafted by an attorney to which the decedent (or maybe
someone else) made handwritten changes.

Where a will is not correctly drafted, and any meaningful amount of money is
involved, litigation may ensue.

PG will spare you the details of a war story, but long ago and far away, he
managed to resolve litigation over the meaning of a will that had been ongoing
for 16 years.

The decedent with an estate of considerable size had a will drafted by a
local attorney, which she signed in the manner the law required. She then went
on a cross-country trip to visit the significant number of individuals named in
the will. She took the original will with her.

While on the trip, she made many handwritten changes to her will, crossing
out words, handwriting (in pencil) notes and names and property descriptions
with arrows going here and there.

After returning from her trip, the decedent died before she could take her
marked-up will back to her attorney so he could make a new one. There was some
question whether any of her local heirs might have had access to the will
before it was filed with the Probate Court.

Suppose an individual or couple wish to have a will drafted that basically
divides the property they own at death between a relatively small number of
people or leaves it to a charitable organization. In that case, a lot of
different attorneys can do that job without charging very much money.

If an individual or couple have property (including intangible property like
copyrights to books) that is worth more than a few hundred thousand dollars, a
qualified estate planning attorney may be able to help reduce the estate and
inheritance taxes due to state and federal governments by for a legal fee that
is significantly less than the amount of taxes due.

PG has been purposely vague in this discussion because, as mentioned, laws
vary from state to state and there are factors that may impact probate and
death taxes that may be unique to an individual or couple and impact what’s
involved for the heirs after their deaths.

It is not unusual (and perfectly justified) that more than a few people may
be concerned about what the attorney will charge for her/his services.

It is not at all impolite for you to make an appointment for a meeting with
an attorney or, at the beginning of the meeting, to ask in a friendly manner
how much the attorney will charge for a meeting to discuss your estate and, on
a broad level, what death taxes are may be involved, again in round numbers.

During the meeting, if the attorney recommends that wills, trusts, etc., be
drafted or redrafted, it is not impolite for you to ask what the costs will be
for the attorney’s services in doing so if the attorney doesn’t include that
information in the discussion with you.

It is possible that the attorney may legitimately not know or be able to
estimate costs ahead of time due to matters that may arise only after he/she
gets started. Quite often, she/he may be able to give you a general range in
which your bill will fall.

If you don’t feel good about your meeting with the attorney, you can be
assured there are others who perform the same services.

 

How to Use Real People in Your Writing Without Ending Up in Court

From Helen Sedwick:

Scarlett Johansson won a defamation suit against a French writer for creating a promiscuous character who happened to look like the movie star. A Georgia jury awarded $100,000 to a woman who claimed a character in The Red Hat Club falsely portrayed her as an “alcoholic s**t.”

Writers face three big risks when using real people in their writing: defamation, invasion of privacy, and misappropriation of the right of publicity. Yet every fiction writer bases characters on real people. Memoirists and nonfiction writers identify people by name. How can writers use real people in their work without risking a lawsuit?

First, a simple rule. If what you write about a person is positive or even neutral, then you don’t have defamation or privacy issues.

For instance, you may thank someone by name in your acknowledgements without their permission. If you are writing a non-fiction book, you may mention real people and real events.  However, if what you write about identifiable, living people could be seriously damaging to their reputation, then you need to consider the risks of defamation and privacy and how to minimize those risks. I am not talking about portraying your mother-in-law as a bossy queen bee; I am talking about portraying your mother-in-law as a drug dealer.

Common sense and a cool head are key.

First, let’s start with a quick summary of United States law. (The laws of other countries are more favorable to the targets. In today’s Internet environment, you could get sued in France for a blog written in California.)

Defamation

To prove defamation, whether libel for written statements or slander for spoken ones, a plaintiff (target) must prove all of the following:

False Statement of Fact.

If a statement is true, then it is not defamatory no matter how offensive or embarrassing. Opinions are also protected because they are not “facts.” Couching something as an opinion is not bullet-proof. Courts see no difference between “Joe is a pedophile” and “In my opinion, Joe is a pedophile.” The more specific a statement, the more likely it will be seen as a statement of fact. Parody is not defamatory if the absurdity is so clear no reasonable person would consider the statements to be true.

Of an Identifiable Person:

A defamatory statement must contain sufficient information to lead a reasonable person (other than the target) to identify the target. Typically, the target must be a living person, but companies and organizations have sued for defamation. Oprah Winfrey was sued by a group of Texas ranchers after saying she had sworn off hamburgers because of mad cow disease. (Oprah won the case.)

That is Published:

One person (other than the target) must read or hear the statement.

Causes reputational harm:

The statement must be more than offensive, insulting, or inflammatory. It must “tend to bring the subject into public hatred, ridicule, contempt, or negatively affect its business or occupation.”

Made With Actual Malice or Negligence:

If the target is a public official or a public figure, then the plaintiff must prove the statement was made with actual knowledge that it was false or with a reckless disregard for the truth. If the target is against a private individual, courts generally require some fault or negligence by the defendant.

Invasion of Privacy Claims

Even if you publish the truth, you may still be sued for invasion of privacy if you disclose private information that is embarrassing or unpleasant about an identifiableliving person and that is offensive to ordinary sensibilities and not of overriding public interest.

The target must have a reasonable expectation of privacy. Any conduct in public is not protected, particularly today when everyone carries a camera in their pocket. Similarly, public figures can have little expectation of privacy. A movie star lounging topless on a yacht should not be surprised that a camera with a long lens is pointing her way.

The disclosure must be more than embarrassing; it must harm a person’s personal and professional reputation. Typically, these cases involve incest, rape, abuse, or a serious disease or impairment. Sex videos have triggered a number of suits.

Even if the information is highly offensive, courts often decide there is no legal liability if the information is of public interest. Public interest does not mean high-brow or intellectual. Gossip, smut, and just about anything about celebrities is of public interest.

Frequently, courts find stories of rape, abuse, and incest to be of public interest if they are disclosed by the victims. As you can imagine, judges and juries are not sympathetic when the perpetrator makes a privacy claim.

In any situation, however, writers should try to get releases from people who will be recognizable in their work.

If you cannot get a release, then consider changing the person’s name and identifying characteristics. Yes, this is permissible, even in memoirs.

Another flavor of invasion of privacy is called false light. Suppose you post a photo of a criminal arrest. Jane Doe, a bystander, appears in the picture, a true fact. If the photo creates the impression that Jane was arrested and you do not take reasonable measures to dispel that impression, Jane could sue you for portraying her in a false light.

Misappropriation of the Right of Publicity

Using someone’s likeness, name, or identifying information for advertising, promotional, or commercial purposes may get you sued. Whether the person is a private individual or public figure, you would be liable for damages, including punitive damages. If the person is dead, you could still get sued in some states and foreign countries.

Right of Publicity claims are limited to:

  • Advertising: Using a person’s image in an advertisement. Same applies for using look-alikes or sound-alikes. Bette Midler won $400,000 from Ford after they used a singer to mimic her voice in an automobile commercial.
  • Merchandise: Selling t-shirts, mugs, greeting cards and other products with unauthorized images.
  • Impersonations: Impersonating a celebrity for commercial purposes. Yes, all those Elvis impersonators either have permission from Elvis’s estate or are taking legal risks.
  • Implied endorsements or relationship: Wrongfully implying that someone has endorsed your work or was involved in its production violates a number of laws.

Link to the rest at Helen Sedwick

Ms. Sedwick is an attorney who appears to have transitioned into an indie author. A check of the records of The State Bar of California shows her as inactive which means she is an attorney in good standing with the California Bar who doesn’t presently practice law.

To be clear, this is a voluntary status that a member of the California Bar can elect if she/he no long wishes to be involved in the practice of law, but does want to keep the option of returning to active practice open if she/he changes her/his mind in the future. The last time PG checked, an inactive member still has to pay some bar dues, but doesn’t have to spend the time and money to attend Continuing Legal Education classes.

PG is also a member of The State Bar of California. He is currently on Active status because he is practicing law.

When PG became a member of The Missouri Bar many years ago and practiced law exclusively in that state, he switched to inactive status in California. He kept that inactive status through his subsequent employment as an executive and in-house attorney at several high-tech companies, then changed to active status again when he resumed practicing law focusing on legal and contract problems faced by authors and small publishers.

Ms. Sedwick has written a book titled, Self-Publisher’s Legal Handbook. PG hasn’t read the book, but based upon what she has written in her blog post, he would expect that Ms. Sedwick knows a lot about this topic.

PG will caution that some elements of defamation, invasion of privacy, and misappropriation of the right of publicity exist under federal law and state law and, while the general rules may be similar, there may be some borderline cases that are actionable in some locations and not actionable in others.

The internet has added a whole new element to defamation law because a defamatory remark may originate in one state or nation but appear in all states and nations via the internet. There is even something called Twibel, libel via Twitter – See Pillsbury: Internet+Social Media for a discussion of Twibel.

An Erotica Pioneer Goes From Hero to Villain for Dozens of Authors

From The New York Times:

Anne Wills was a mother of four who doted on her children, was an active volunteer with a youth swim team, loved animals and was known to those around her as a generous, nurturing, motherly figure in her small town in rural Virginia.

When that life felt too tame for her, she became Bethany Burke, a bawdy, kink-loving erotica author who also made low-budget spanking films. She wrote them and occasionally even directed them.

She was an early online erotica entrepreneur with her subscription spanking site, Bethany’s Woodshed, and a hero and mentor to dozens of authors, most of them women, whom she published for the first time through Blushing Books, the company that grew out of her original site. Some of those authors started earning tens of thousands of dollars a year from what they had thought of as a secret hobby, not a profession.

Now, to many of those same writers, she is a villain.

“She has you, she owns you,” said Barbara Carey LaPointe, a retired social worker in Camden, N.Y., who writes romance under the pen name Stevie MacFarlane and who, like dozens of other authors, is fighting Ms. Wills to reclaim the rights to the stories she created.

“These are the only things I’ll be able to leave to my grandchildren,” Ms. LaPointe said.

In interviews with The New York Times, a dozen Blushing authors and seven former employees described a haphazardly run business that frequently failed to pay authors on time, and threatened them with lower royalties and defamation lawsuits if they defected. Some writers who spoke to The Times discovered they were not being paid for books that Blushing was selling through certain online vendors or in audio format. Others were locked into contracts that gave Blushing “permanent and exclusive” rights to their books and pen names, which publishing experts called onerous and outside of industry standards.

When asked by authors about the missing payments, Ms. Wills, 63, the chief executive, often called it an oversight or a glitch in the system. But several former employees said that delayed payments to authors were a result of Blushing’s routine mismanagement of finances.

. . . .

In December 2020, the Romance Writers of America, a trade group, announced that, following an ethics investigation, it had suspended the publisher’s membership for three years and barred Blushing from attending its conferences. The Authors Guild, an advocacy group, is representing 30 writers seeking to reclaim rights to their work from Blushing. So far, one of those authors has stopped Blushing from selling her books after filing copyright-infringement notices with retailers, showing that Blushing did not hold contracts for them. Umair Kazi, director of policy and advocacy at the Authors Guild, said that some of Blushing’s contract provisions and its treatment of some authors go against industry standards and raise “many red flags.”

In a statement to The Times, Ms. Wills declined to address specific allegations from authors, and said that her company’s policy was not to speak publicly about any “author’s contractual obligation with Blushing.” She also noted that Blushing had paid “millions of dollars in royalties just in the past five years.”

Under pressure from authors, Blushing has offered more transparency, and says that it is now providing monthly royalty payments, and that since the first quarter of 2020, it has used an automated royalty tracking system to generate payments.

A lawyer for Ms. Wills said that she “believes she has fulfilled her contractual duties to her authors and continues to do so” and that “Blushing wishes to move on from this small group of past authors and disgruntled past employees and put its energy into focusing on the talented and passionate authors they have the privilege to represent.”

. . . .

On top of major companies like Harlequin, Avon and Berkley, which are owned by large multinational corporations, a constellation of smaller, independent romance publishers sometimes operate in a gray area between corporate publishers and vanity presses, which charge authors to publish their work. The independent presses tend to offer writers small advances of four to five figures but a higher cut of royalties, a share of profits. Often, they attract writers, mostly women, who have little professional publishing experience and aren’t represented by lawyers or agents who can help them evaluate a contract.

“Writers who really want to get published are so easy to take advantage of, and there are more and more people out there to take advantage of,” said Mary Rasenberger, chief executive of the Authors Guild.

While every creative field has horror stories about artists who are underpaid and exploited, the dynamics of the romance industry can be especially difficult to navigate. Despite the ascendance of erotica, there’s a lingering stigma attached to the genre, which is written largely by and for women, and is still sometimes dismissed as shameful or unserious. Many romance authors publish under pen names and keep their professional and personal identities separate, and some write in secret for fear of being judged for writing about sex, and more particularly about women enjoying sex.

Ms. LaPointe, 66, became disillusioned with Blushing after she discovered it had added clauses to her contracts without telling her. The additions included claiming rights to foreign editions, audiobooks, and film and television adaptations, according to contracts shared with The Times. Her royalty payments were erratic — she said she sometimes made $3,000 in a quarter, and other times Blushing would claim she owed the company money for advances that it hadn’t made back in sales. She recently started self-publishing and is making far more on her own, but Blushing still has rights to 31 of her books.

She understands now how many questions she should have asked when she began publishing with Blushing in 2012.

“At the time you’re so thankful that a publisher is going to take your book,” she said. “Looking back, you realize how incredibly naïve you were,” she said.

. . . .

As she was building her erotica empire, Ms. Wills ran into legal trouble.

Under her married name from her first marriage, Anne Briggs, Ms. Wills was charged with embezzlement in Charlottesville, according to court records. In 2000, she pleaded guilty to embezzling funds in 1998 from a cafe where she worked as a bookkeeper and to credit card fraud in 1997. Around the same time, she was accused of taking tens of thousands of dollars from a youth swim team, according to reports in The Daily Progress, a Charlottesville paper, but she was never prosecuted. (A lawyer for Ms. Wills said that “the allegations regarding criminal charges are false.”)

In her other life as Bethany, she had grand ambitions for her publishing business, and recruited a large stable of authors. “She would wine and dine you,” said Victoria Rouch, a former editor in chief for Blushing, who writes under the name Ava Sinclair. “She always had this image of being extremely wealthy.”

She added: “She would get new writers and they would be the flavor of the month. She would treat them like queens.”

Ms. Wills bought many books outright as “work for hire,” meaning Blushing bought them outright and no royalties would be owed. For others, she offered a seven-year term to license the work, but in some contracts, she claimed permanent and exclusive rights, meaning Blushing could sell the books forever. To attract new writers, Blushing promised some a large cut of royalties — 50 percent, or 60 percent if authors agreed to publish exclusively with Blushing — far more than the typical 25 percent that most authors make for e-books with mainstream publishers. Those royalties were to be paid quarterly, but Blushing’s most successful authors were offered monthly payments.

. . . .

Some former employees said that they found her endearingly scatterbrained, and that they tried to create automated systems to keep track of royalties and to try to make sure authors were paid on time. Former employees said that they had asked Ms. Wills to create an escrow account for author earnings to protect them until royalties were paid, but she declined. An informal policy was to make sure the best-selling authors, and the ones who frequently complained — called “the yappers” by employees —- were paid first, while others had to wait, according to former employees.

As an avalanche of self-published erotica arrived after “Fifty Shades of Grey” came out in 2011, the dark, edgy category Blushing once thrived in was flooded. Ms. Wills looked for ways to stay visible in a cutthroat online marketplace.

. . . .

One of her workarounds was risky. Several former employees said that Ms. Wills had set up multiple Kindle publishing accounts on Amazon, around 10 at one point, a violation of Amazon’s one-account-per-publisher policy. Ms. Wills told employees that books performed better with Amazon’s algorithm when they came from accounts with fewer new releases. She also told them not to talk about the accounts — if Amazon learned of it, Blushing’s account could potentially be shut down, taking authors’ sales and careers with it.

But some former employees grew suspicious when they saw accounts opened in authors’ names, or when Ms. Wills used employee names, addresses and tax IDs to open an account, including Alta Hensley, a former editor in chief who quit after Ms. Wills tried to open an account in Nevada under her tax ID and address without Ms. Hensley’s permission. Ms. Hensley refused to sign the paperwork and later quit. Ms. Wills threatened to sue her if she said anything negative about the company, she said.

. . . .

At first, Wendy Weston, a clinical social worker who lives in Texas and writes as Alyssa Bailey, was ecstatic to see her books in print. “She published me first and I will always be thankful that she took a chance on me,” she said of Ms. Wills.

But now she fears she has signed away rights to her books forever. The company holds permanent and exclusive rights to 22 of her titles, including her historical romance series, “Lords and Little Ladies,” and her contemporary Western spanking romances. In 2019, her royalties fell to half what they once were. Once, when she received no royalties for eight months, she asked Ms. Wills why she hadn’t been paid.

“She said, ‘Oh we forgot to pay you,’” Ms. Weston said.

Some authors signed contracts that gave Blushing permanent rights to their pen names and series names, making it all but impossible for them to leave without sacrificing their careers and audience.

Ms. Wills also added a clause giving the company “permanent and exclusive rights” to titles, often without informing authors of the change, and instructed an employee to revert to the previous term of seven years only if authors noticed and asked for it, emails reviewed by The Times showed. “Based on what I’ve seen, some of these clauses read as predatory and not standard,” said the literary agent Kimberly Brower, who reviewed language in Blushing’s contracts at The Times’s request. “Some of these publishers count on the fact that authors do not have agents or cannot afford a lawyer.”

. . . .

Anya Summers, whose real name is Margaret Huth, is a former music teacher who lives in St. Louis and now writes romance full time. She started publishing her “Dungeon Fantasy Club” series, about a secret B.D.S.M. sex club, with Blushing in 2016. Her relationship with the company soured last year, when she ended her exclusive agreement with it and began self-publishing books on the side. Ms. Huth was alarmed when her royalty payments from Blushing subsequently plummeted, even though many of her latest Blushing books were ranking higher on Amazon than they had in the previous quarter, suggesting sales remained strong. Royalty statements from Blushing said one of her books had not sold a single copy, when Amazon reviews showed verified purchases.

. . . .

When she emailed Ms. Wills last October to ask why her royalties fell, Ms. Wills replied that her Blushing sales fell because she was self-publishing, and said that unless Ms. Huth agreed to publish exclusively with Blushing, her payments would shrink even more, according to an email reviewed by The Times. Ms. Huth wouldn’t agree to the terms, and subsequently, she said her payments fell by nearly 70 percent, amounting to thousands of dollars a month.

Ms. Huth recently learned that in 2017, the publisher registered a limited liability corporation under her pen name, Anya Summers, and that it also opened a Kindle publishing account in her name without her knowledge or permission.

. . . .

In a way, Blushing’s vast and growing catalog of erotica was itself something of an illusion, a fantasy in more ways than one. Blushing often treated its writers and their work as interchangeable, another kinky story to feed the bottomless appetite of Amazon’s algorithm.

To keep pumping out new releases, Ms. Wills padded inventory by taking older books and repacking them with new covers, sometimes under a different title and pen name, according to several former employees. One former Blushing author said Ms. Wills often rehashed older books as new titles and asked her to lightly rewrite some. “She had thousands of books by all kinds of authors that she claims she just owns and she can put other people’s names on,” the author, who writes as RJ Gray, said.

While Blushing can legally recycle books it bought as work for hire, the practice can trick readers into buying the same story twice.

That’s what happened to some fans of JoAnn Kinder, who started writing for Ms. Wills in 2001 and published more than 200 books with Blushing. When she died suddenly in June 2018, at age 67, many of her books did not have formal contracts.

She was in the process of finalizing agreements that specified that in the event of her passing, her royalties would go to her surviving family, including her husband, her two children and her grandchildren, according to her daughter, Christina Boes.

Ms. Wills told Ms. Kinder’s family that her books hadn’t been making much money and promised to send them a share of royalties, Ms. Boes said. “To say that she wasn’t making any money on her books is a complete falsehood,” said Ms. Boes, a home health nurse in Colorado, who added that her mother used to make $3,000 to $5,000 in royalties every quarter, though payments often arrived late.

Two former employees confirmed that Ms. Kinder’s books, which were written under 10 pen names, including Joannie Kay, still sold steadily.

Nearly two years after Ms. Kinder’s death, the company sent a contract to her husband, promising the family 10 percent of profits for her titles and claiming the right to revise and republish her work under new titles and pseudonyms. On the advice of a lawyer, Mr. Kinder signed the contract, a decision the family now regrets.

Ms. Boes said the family has not received royalties for her mother’s works, apart from $200 that Blushing sent for a chapter she submitted right before she died. The family and Blushing dispute the status of royalty payments. Beyond that, Ms. Boes is upset that her mother’s work is being revised and released, and that her mother would have been appalled by readers feeling deceived.

“They’re still selling all of these books and rewriting them,” Ms. Boes said.

RJ Gray said that in 2019, after Ms. Kinder’s death, Ms. Wills had asked her to add more explicit scenes to Ms. Kinder’s books, something Ms. Kinder had opposed, according to her family.

“She told me that she had access to Joanie’s material and she wanted me to rewrite it,” Ms. Gray said. “Joanie wrote clean, and she wanted to spice up her work and resell it.”

Ms. Gray said no, but Blushing pressed ahead with plans to keep Ms. Kinder’s books coming out posthumously.

. . . .

For a while, Ms. Wills was able to keep authors from speaking about the company through nondisclosure agreements in their contracts. But in 2019, a group of writers rebelled. The author organizing the uprising was Addison Cain, one of Blushing’s top sellers. Ms. Cain had gotten into a copyright dispute with another author after Ms. Cain claimed that her books had been plagiarized, and then discovered that Blushing had never copyrighted her books, a standard service that many publishers provide and that Blushing’s contracts said they would cover. (The accused author filed a lawsuit against Ms. Cain and Blushing, and received a judgment against Blushing, but the suit against Ms. Cain was dismissed after the plaintiff liquidated her company and missed court deadlines.)

Ms. Cain told some other authors, who learned that their books, too, had never been copyrighted. Some found their books on piracy sites but Blushing said it couldn’t do anything and discouraged authors from seeking to have them removed.

“Blushing was risking the livelihood of all of their authors,” Ms. Cain said.

The group, seven authors, hired a lawyer to send a demand letter to Blushing for breach of contract and reached a settlement with Blushing to get their rights reverted, but some had to file copyright-infringement notices with retailers to get Blushing to take their books down.

The departure of many of Blushing’s best-selling authors was disastrous for Ms. Wills, who faced mounting legal bills and shrinking profits, and had just spent $135,000 on an office building in Farmville, which was later sold at a $20,000 loss. She worried that other authors might defect, and she registered trademarks for successful series that she thought she might lose in her company’s name, not the author’s, according to trademark filings.

The conflict escalated in February 2020, when some routine financial paperwork caused everything to unravel.

That month, the seven authors who got their rights back received tax documents from Blushing. One of them, Zoe Blake, said she believed the form incorrectly labeled her earnings. In seeking to have it corrected, she was sent email correspondence that Blushing said was from an accountant, explaining no error had occurred. In fact, the email had been altered by Ms. Wills, according to email records and interviews.

Ms. Wills acknowledged in a phone call that she had changed the accountant’s email, but claimed she had only done so to make his meaning more clear, according to Ms. Lamon, who was on the call with two other employees. (In a statement to the Times, Ms. Wills said she had “never been contacted once by the I.R.S. informing us of any issues with tax documents.”)

Blushing’s production manager, accounts manager and editor in chief all promptly resigned. Before they left, the production manager paid herself and other employees their salaries and paid out royalties, including some that had been delayed, and she listed these payments in her resignation letter.

The next day, Ms. Wills filed a police report claiming that her production manager had embezzled from the company. A few weeks later, the former employee was arrested in her home in front of her husband, the deputy chief of police, and her children, and taken before the magistrate. A group of Blushing authors raised money for her legal fees, and Ms. Wills’s estranged husband and one of her children also offered to help.

Ms. Wills never provided any forensic accounting evidence of embezzlement, a lawyer representing the former employee said, and the charge, which was filed in the wrong jurisdiction, was later expunged, according to the Albemarle County Commonwealth’s Attorney’s Office. Ms. Wills filed a new complaint against the former employee, but no charges have been filed. (The woman spoke to The Times about the events that led to her arrest on the condition that her name not be printed.)

Link to the rest at The New York Times

This is a longer than usual excerpt than PG usually posts, but the original NYT article is longer still.

Here are a few bullet-point lessons authors can take from the OP:

  1. Read your contracts.
  2. Read every contract, even if it is supposed to be the same as an earlier contract. You can use MS Word Document Compare to assist in this process and help make sure you didn’t miss something small but important.
  3. You don’t have to accept the wording of a proposed publishing agreement. It’s an offer sent to you to enter into a binding contract. You can modify the wording of the agreement, sign it and send it back to the publisher. In legal lingo, this is a counter-offer. If the publisher signs the modified publishing agreement, that’s the binding agreement, not the first version they sent to you.
  4. In contract negotiations, PG is a proponent of doing unto others as you would have them do unto you, and PG begins negotiations in a friendly and cooperative manner. (Academic negotiations studies indicate this is the best way to reach an acceptable agreement, so PG has some scientific justification for his normal instincts in contract negotiations.)
  5. PG also applies his “do unto others” standard to the counter-party as well. If counsel for the publisher is friendly and cooperative, that’s the way PG would respond. If counsel is aggressive or a jerk, PG could move into that negotiation mode even if that wasn’t his first preference.
  6. As a general proposition, if the counter-party appears to be shady and devious, PG’s advice to a client would be not to do business with that sort of person or organization because the likelihood of a bad outcome is very high.
  7. If, as the OP implies might have been the case, these authors were pretty desperate to be published and an author, despite PG’s warnings, asked PG to move forward with contract assistance, PG would have no problem creating a modified version of the original unfair contract for the author to send back to a publisher like Blushing with modifications fixing the original unfair provisions. If PG regarded the original contract wording as devious, his response might well be devious, mirroring the publisher’s contract proposal.
  8. As sloppy an operation as the OP indicates Blushing was, PG would be surprised if anyone in the organization read a signed publishing agreement received from an author.

However, even with a reworded publishing agreement, the author would still not be in a very good position to do much with an organization like the one depicted in the NYT article.

Under a typical traditional publishing agreement, the publisher receives all the information concerning a book’s sales. As stated in the OP, at least some of Blushing authors claim the publisher misrepresented the sales numbers and money received from the sales of at least some of its books to the detriment of the authors. If the publisher was operated in the manner implied in the OP, PG would expect a high likelihood that its financial books and accounting are pretty much a black hole.

The first rule of creating a successful agreement is to make it with an individual or entity that will do what he/she/it promises to do competently. No amount of genius legal drafting will avoid problems if the other side of an agreement isn’t inclined to or capable of carrying out its obligations.

Given the high profile of The New York Times, PG would be surprised if a variety of taxing authorities don’t start audits of Blushing’s filings and financial records.

Amazon and other sellers of books published by Blushing may respond to the information in the article in a variety of different ways.

That said, all that PG knows about Blushing and Ms. Wills is what he read in the NYT article. He has not heard Blushing’s side of the story, which he expects would be much different than that published in the Times.

For the record, nothing included in PG’s commentary represents a legal opinion. You don’t obtain a legal opinion by reading a blog post written by an attorney. You obtain a legal opinion by hiring a competent lawyer who would do much more research than read a New York Times article. Facts not mentioned in the NYT article may have a substantial legal impact that would make some or all of the article or PG’s reflections based on the report incorrect.

PG doesn’t have any desire to get involved in this Blushing matter as an attorney. He’s not licensed to practice in Virginia and, while he spent a lot of time in court during a previous life, he has no desire or ability to enter any courtroom now or in the future unless he’s there as a spectator to watch other attorneys do all the work.

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

Why is PG posting this?

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

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

A brief tutorial:

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

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

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

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

A WORKING DEFINITION

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

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

. . . .

U.S. PARODY DECISIONS

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

A. The Second Circuit “New York” View

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

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

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

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

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

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

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

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

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

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

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

. . . .

B. The Ninth Circuit “California” View

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

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

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

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

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

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

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

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

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

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

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

The Rick Dees Case


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

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

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

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

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

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

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

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

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

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

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

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

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

PG’s comments (not legal opinions):

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

Assignments Aimed at “Requiring a Statement” of Ideological Belief from Students May Violate First Amendment

This case originated when Mari Leigh Oliver, a former student at Klein Oak High School in Texas, sued her former sociology teacher, Benjie Arnold, alleging that he violated her First Amendment rights by retaliating against her for her refusal to stand, salute the flag, and recite the Pledge of Allegiance.

The case is captioned Marie Lee Oliver vs. Benjie Arnold and was decided in the Fifth Circuit Court of Appeals on June 29, 2021.

From Reason:

Assignments Aimed at “Requiring a Statement” of Ideological Belief from Students May Violate First Amendment: So holds a Fifth Circuit panel (by a 2-to-1 vote), in an assignment requiring the writing of the Pledge of Allegiance, but the same argument would apply, I think, to compelled statements of other ideologies, whether related to patriotism, race, sex, sexual orientation, or anything else.

The case is Oliver v. Arnold, decided yesterday by the Fifth Circuit, in an opinion by Judge James L. Dennis joined by Judges Jack Weiner. I expect the opinion will be an important precedent in much of the litigation about compelled “diversity, equity, and inclusion” assignments in public schools. The fundamental precedent on which the case relies, W. Va. State Bd. of Ed. v. Barnette (1943), broadly forbade “compulsion of students to declare a belief,”and condemned all attempts “to coerce uniformity of sentiment in support of some end thought essential to their time and country.” Though the case involved a compelled flag salute and pledge of allegiance, its rationale went well beyond the particular patriotic expressions that were being compelled.

The key question will be where the line is drawn between (1) commonplace and presumably constitutional assignments aimed at encouraging students to believe the particular facts and modes of analysis being taught (whether in biology class, economics class, history class, or what have you), and requiring them to show that they’ve learned the material, and (2) forbidden assignments created “with the impermissible motive of requiring a statement of patriotism [or other ideological belief] from … students.” Such a line can, I think, be drawn, but it will take more litigation to establish it.

From the majority:

Under Texas state law, public school districts must require students to recite the United States Pledge of Allegiance … every school day. However, the law requires schools to excuse any student from this obligation “[o]n written request from a student’s parent or guardian.” …

Oliver is a young black woman who was enrolled as a student at Klein Oak High School … within [the Klein Independent School District] during the events that gave rise to this case. Oliver objects to the Pledge because she feels that the portion declaring America to be a nation “under God” fails to recognize many religions and does not match her personal religious beliefs. She further believes that, contrary to the words of the Pledge, there is not “freedom and justice for all” in America because she and other black people continue to experience widespread racial persecution. Oliver therefore declines to stand for or recite the Pledge ….

[In 2017,] Oliver took Arnold’s Sociology class. On August 18, 2017, the Klein Oak principal held a meeting with Oliver’s teachers, including Arnold, and instructed them that Oliver was not required to participate in the Pledge. Nonetheless, on September 20, 2017, Arnold gave the class an assignment to transcribe the words of the Pledge of Allegiance …. Although Arnold claims that the assignment had a pedagogical purpose, the district court found that his intentions were genuinely disputed, and we therefore must assume for purposes of this appeal that Arnold’s justification was pretextual and Arnold intended the assignment as a mandatory statement of patriotic belief from his students. Oliver refused to complete the assignment and instead drew a “squiggly line.”

During class the next day, Arnold told his students that anyone who did not complete the Pledge assignment would receive a grade of zero. Arnold then engaged in an extended diatribe, which we must assume was aimed at Oliver and motivated by his hostility toward her refusal to transcribe the Pledge, in which he lamented what he viewed as the decline of American values and decried a variety of people whose attitudes he deemed to be un-American, including communists, supporters of Sharia law, foreigners who refuse to assimilate into American culture, and sex offenders and those that argue for their rehabilitation….

In the days that followed, Arnold continued to exhibit hostility toward Oliver and treat her more harshly than other students as a result of her refusal to transcribe the Pledge, including by repeatedly moving her seat, intentionally calling her by the wrong name, and making disparaging comments about her accomplishments in extracurricular activities. Although Arnold denies treating Oliver differently than other students and maintains that he enforced his classroom rules evenly, the district court again found that these facts are genuinely disputed, and we thus must assume that Arnold singled Oliver out for hostile mistreatment as a result of her opposition to the Pledge assignment….

The district court … found that genuine disputes of fact existed regarding whether Arnold assigned transcription of the Pledge with the impermissible motive of requiring a statement of patriotism from his students, and the court therefore concluded that Arnold was not entitled to summary judgment on Oliver’s compelled speech claim. The court further determined that “a reasonable jury could conclude that Arnold exhibited hostility toward, and retaliated against, Oliver for refusing to write the pledge, and that he threatened to give a zero to anyone who refused to write the pledge (whether he acted on the threat or not).” “A jury could also reasonably find that Arnold’s speech to the class and threat to punish refusal to write the pledge with a zero would chill a person of ordinary firmness from exercising protected speech,” the district court concluded, which precluded a grant of summary judgment on Arnold’s claim for First Amendment retaliation….

The court of appeals concluded that, if the facts were as Oliver alleged, she could prevail on her legal claims:

[Arnold] contends that Oliver’s compelled speech claim fails because [Oliver’s mother] did not submit a [statutory] request and Oliver was thus required by state law to participate in the Pledge; because the Pledge assignment was given for pedagogical purposes, and, under Brinsdon v. McAllen Independent School District, 863 F.3d 338 (5th Cir. 2017) [which allowed a qualified immunity defense for an assignment in Spanish class that “required students to memorize and recite in Spanish the Mexican Pledge of Allegiance and sing the Mexican National Anthem” -EV], it does not violate clearly established law to require a student to participate in the Pledge for didactic reasons; and, relatedly, because a refusal to complete a class assignment given for pedagogical reasons is not expressive conduct protected by the First Amendment. But, as we have stated, the district court found these facts to be genuinely disputed, and we must assume due to the posture of this appeal that [Oliver’s mother] did submit a valid [statutory] request and that Arnold gave the Pledge assignment “for the purposes of teaching, fostering[,] and perpetuating the ideals, principles[,] and spirit of Americanism”—the intent the Supreme Court found impermissible in Barnette.

Similarly, Arnold argues that Oliver does not have a valid claim for retaliation because her refusal to complete the Pledge assignment was not constitutionally protected activity, because “the evidence” shows he did not harass her or treat her differently than other students, and because any adverse actions he took were not motivated by Oliver’s refusal to complete the Pledge assignment. But, again, because the district court found these facts to be genuinely disputed, we must assume for purposes of this appeal that Arnold gave the Pledge assignment for impermissible purposes, rendering Oliver’s refusal protected activity; that Arnold singled Oliver out and treated her differently than other students; and that these adverse actions were motivated by hostility to Oliver’s refusal to complete the Pledge assignment….

Arnold raises no argument as to why, if he did engage in the actions toward Oliver that she alleges and he was substantially motivated by opposition to Oliver’s refusal to complete the Pledge assignment, they nonetheless failed to cause Oliver “an injury that would chill a person of ordinary firmness from continuing to engage in that [protected] activity.” … [A]rguments that are not raised on appeal are waived.

Our dissenting colleague argues that Arnold simply gave an unconventional teaching assignment that no clearly established law prohibits. He further posits that, in holding that Arnold’s conduct, if proven, would violate clearly established rights, we open the door for students to sue over any classwork they deem offensive. But the dissent fails … to consider the facts in the light most favorable to Oliver. In this appeal, the “impure motive” we must assume Arnold had for giving the Pledge assignment is not simply “foster[ing] respect for the Pledge” as the dissent contends.

Instead, because the district court found that Arnold’s motives are genuinely disputed, we must presume here that Arnold was requiring his students to make precisely the sort of written oath of allegiance that the dissent acknowledges would be impermissible. We are not permitted to look beyond the district court’s findings of disputed facts to conclude that, based on the evidence in the record, Arnold was instead merely employing a “curious teaching method.”

The dissent also places much weight on the fact that what is at issue here is a “written assignment.” But the Court in Barnette stated, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” It is immaterial that, under the facts we must accept here, the required pledge was a written oath rather than an oral one and that the consequence for non-compliance was an academic penalty rather than an overt disciplinary action.

Barnette clearly states that teachers and other school officials may not require students to swear allegiance, and with the case in this posture, we must assume that this is what Arnold did. Thus, there is no danger that our decision will pave the way for students to file lawsuits over their being required to study Dr. Seuss or any of the other figures featured in the scenarios the dissent imagines. Unless a teacher is requiring students to swear their fealty and devotion to Dr. Seuss and his teachings, the assignments the dissent envisions are clearly not implicated by the present case….

Link to the rest at Reason

This case caught PG’s attention because most lawsuits brought under the First Amendment to The United States Constitution that protects freedom of speech and expression happen when an individual is prevented from speaking by a state actor.

In this case the opposite occurred, a student was punished for refusing to say something her teacher wanted her to say, The Pledge of Allegiance. This falls under the classification of Compelled Speech, which prevents the government from punishing a person for refusing to articulate, advocate, or adhere to the government’s approved messages.

Government power was involved in this case because the school involved was a public school and the teacher was a state employee.

To be clear, as the majority decision explains, it’s the pledging of allegiance that raises the constitutional problem. Requiring a student to recite the alphabet or “study Dr. Seuss” is still proper because there is no oath of allegiance to any nation or person involved in those materials.

Rare Tablet Bearing Ancient Epic Poem Forfeited to U.S.

From The New York Post:

Brooklyn federal prosecutors want an ancient artifact known as the “Gilgamesh Dream Tablet” returned to Iraq — where it was looted years ago before being sold to an unwitting Hobby Lobby for the arts and craft chain’s bible museum.

Brooklyn US Attorney Richard Donoghue’s office filed a civil action Monday asking that the $1,674,000 artifact, dating to 1600 BC, be handed over to the Iraqi government.

The Sumerian epic poem written in cuneiform on the clay tablet is considered one of the world’s oldest pieces of literature, officials said.

“Whenever looted cultural property is found in this country, the United States government will do all it can to preserve heritage by returning such artifacts where they belong,” said Donoghue in a statement.

“In this case, a major auction house failed to meet its obligations by minimizing its concerns that the provenance of an important Iraqi artifact was fabricated, and withheld from the buyer information that undermined the provenance’s reliability.”

Federal agents seized the 5-by-6-inch work in 2019 from the Museum of the Bible in Washington, DC.

In April 2003, an unnamed antiquities dealer purchased the tablet along with a number of other items from another dealer in London, prosecutors said.

In 2007, that dealer sold the tablet for $50,000 to another buyer, and allegedly provided a fake provenance letter, falsely claiming it had been legitimately obtained at an auction in 1981 before laws were passed restricting the importation of Iraqi artifacts.

The tablet was later sold by an unnamed international auction house to Hobby Lobby Stores in 2014, in a private sale for an eye-popping $1,674,000 for display at the Museum of the Bible.

Three years later, a museum curator contacted the auction to clear up some contradictory information about the item’s origins.

Despite inquiries from the museum and Hobby Lobby, the auction house failed to disclose details about how they had obtained the artifact and withheld the false provenance letter, which it knew would not hold up to “scrutiny in a public auction,” prosecutors wrote in court papers.

It’s unclear whether the museum, which cooperated with the investigation, alerted federal authorities to the suspected theft.

The piece is known as the “Gilgamesh Dream Tablet” since it contains a portion of the poem in which the protagonist describes his dreams to his mother.

Hundreds of thousands of artifacts have been looted from archaeological sites throughout Iraq since the early 1990s and sold on the black market, officials said.

Spokeswoman Charlotte Clay said the museum fully supports the effort to return the tablet to Iraq.

“The museum, before displaying the item, informed the Embassy of Iraq on Nov. 13, 2017, that it had the item in its possession but extensive research would be required to establish provenance,” she said in a statement.

Link to the rest at The New York Post

Here’s what the tablet looks like:

the Gilgamesh Dream Tablet

Provenance: Important, Yes, But Often Incomplete and Often Enough, Wrong

From Artnet News:

This essay addresses provenance issues in the context of a sale. Of course the provenance of a piece is an important factor in determining its authenticity, but how important to the seller and buyer is knowing that, for example, there were three private owners between the artist and the current owner. If one of those owners was Paul Mellon or a major museum, it might be very important. And, have the buyer and seller made that importance clear in their sale agreement?

• • •

Ask anyone at the next gallery opening or museum exhibition and you will find nearly universal agreement that the provenance (lit. “origin”) of a work of art is important.1 In fact, a New York federal judge recently observed that “[i]t is a basic duty of any purchaser of an object d’art to examine the provenance for that piece…”

Less clear is whether the standards that exist in the art world about what should be included in the provenance are followed with any regularity or even can be followed as a practical matter. While theoretically intended to be a “chain of title” that should include every owner of the work since its creation, provenance typically tends to be a non-exclusive listing of interesting facts concerning the background of the work, such as notable former owners (at least those who are willing to have their identities disclosed) and the exhibition of the work at prestigious venues. Should galleries which held the work on consignment be listed? Does a seller have potential liability if the provenance provided to the buyer turns out to be inaccurate in any material respect? What if it is merely incomplete?

Before addressing those questions, it is useful to consider how provenance is relevant to sales of art. Art litigation generally falls within one of three categories: disputes concerning ownership, disputes concerning authenticity, and, to a lesser extent, disputes concerning value. The provenance of a work may bear on each of those potential areas of dispute. Obviously, to the extent provenance represents a chain of title, it may bear quite directly on a dispute concerning ownership. (If “H.W. Göring, Berlin” is listed in the provenance, that is probably a red flag).

More typically, provenance will be scrutinized where questions of authenticity arise. A few years back, an issue arose concerning the authenticity of a century-old sculpture attributed to a 20th-century artist of iconic stature. The work was sold to a prominent collector through an auction house with a certificate of authenticity from a qualified and appropriately-credentialed scholar of the artist’s work. According to the provenance provided at the time of sale, the work had been acquired in Paris after World War II by an art history professor from an Ivy League university. When questions of authenticity arose several years later, an Internet search and a few telephone calls to the university revealed that no such art history professor ever existed. Also left off the provenance was the fact that just months prior to the multi-million dollar sale to the prominent collector, the work had been purchased from an obscure antique store owned and operated by someone who had served jail time for art insurance fraud. Had these “errors and omissions” in the provenance been discovered at the time of the sale, the sale itself and several years of costly litigation would have been avoided.

Many works of art acknowledged to be authentic carry some risk that in the future questions of authenticity may arise. After all, experts sometimes change their minds, new experts may disagree with the old consensus, and new facts or technologies may emerge. An impeccable provenance that can be verified serves to mitigate that investment risk. On the other hand, we have seen that a dubious provenance may itself be used as circumstantial evidence that the work is a fake. Thus, even where authenticity is not currently an issue, an inaccurate or incomplete provenance still could give rise to a claim in the future.

Recently an art dealer faced a claim that the provenance he provided with a painting was incomplete because it did not include all of the owners going back to the artist. According to the disgruntled buyer, this omission was material because the provenance included a gallery involved in a well-publicized forgery scandal and, therefore, the painting would be hard to re-sell at an appropriate price without a verifiable provenance going back to the artist. Significantly, the painting had been sold at auction a decade earlier and the dealer had provided the current buyer with exactly the same pre-auction provenance as the prominent auction house had provided at the time of the auction sale. The dealer did not think to second-guess or investigate the completeness of the provenance provided by the auction house and did not have the resources to do so. Previous owners of the work did not want their identities disclosed due to privacy concerns (which is not uncommon), so a more complete provenance was not even feasible. Nevertheless, the buyer claimed that he had been promised a “verifiable provenance” and sought to revoke the sale. The buyer did not contend that the work was not an authentic painting by the famous artist, but merely that it would be hard to re-sell without a complete and verifiable provenance going back to the artist. Although the dispute ultimately was resolved without litigation, this episode starkly highlights the potential risks a seller may be assuming by providing—without qualification—a provenance that he or she has no real reason to doubt.

Link to the rest at Artnet News

Forging Papers to Sell Fake Art

From FBI News:

Michigan art dealer Eric Ian Hornak Spoutz grew up in a family of artists. His namesake uncle, Ian Hornak, was famous among Hyperrealist and Photorealist painters, and his mother was a gifted painter as well.

Spoutz became an artist in his own right—a con artist peddling fakes. His specialty was forging the paperwork that he used as proof of authenticity to sell bogus works.

His deceit finally caught up to him on February 16, when he was sentenced in New York to 41 months in prison on one count of wire fraud for defrauding art collectors of $1.45 million. The judge also ordered Spoutz, 34, of Mount Clemens, Michigan, to forfeit the $1.45 million and to pay $154,100 in restitution.

Spoutz’s scam was straightforward but well executed. He contacted art galleries or auction houses and offered for sale previously unknown works by artists such as American abstract impressionists Willem de Kooning, Franz Kline, and Joan Mitchell. The art did not appear in any catalogs or collections of the artists’ known works, said Special Agent Christopher McKeogh from the FBI’s Art Crime Team in our New York Field Office.

“He was selling lower-level works by known artists,” explained McKeogh, who worked the case for more than three years with fellow agent Meridith Savona and forensic accountant Maria Font. “If it’s a direct copy of a real one, the real one is going to be out there and the fraud would be discovered.”

Before paying thousands of dollars for works of art, collectors and brokers want assurance the work is real—especially if the work is previously unknown, McKeogh said. Among other things, they look at the provenance—the paper history of an item that traces its ownership back to the original artist—for proof.

Spoutz, who also owned a legitimate art gallery, understood the value of provenance. He forged receipts, bills of sale, letters from dead attorneys, and other documents. Some of the letters dated back decades and looked authentic, referencing real people who worked at real galleries or law firms. Spoutz also used a vintage typewriter and old paper for his documentation.

The old typewriter turned out to be the smoking gun in the case. “We could tell all of these letters had been typed on the same typewriter,” McKeogh said. The type of a letter allegedly sent from a business in the 1950s matched the type in a letter allegedly sent by a firm in a different state three decades later. Spoutz also mistakenly added a ZIP Code to the letterhead of a firm on a letter dated four years before ZIP Codes were created.

Another red flag was that many of the people referenced in the letters were dead. And some of the addresses were in the middle of an intersection, or didn’t exist at all. “All these dead ends helped prove a fraud was being committed,” McKeogh said.

When marketing his fakes, Spoutz stopped just short of saying the works were authentic. “He tried to give himself an out and said they were ‘attributed to’ an artist,” McKeogh said.

. . . .

Spoutz produced the fake provenance, but not the fake art. “Spoutz was not known as an artist. He had a source he kept going back to,” McKeogh said. The FBI used experts in the field and artist foundations to determine the works Spoutz sold were forgeries.

Many of the fakes passed through auction houses in New York City, McKeogh said, and a suspicious victim eventually contacted the FBI. McKeogh inherited the case about three years ago, when another agent retired.

Although Spoutz has been sentenced, McKeogh and Savona do not believe they have seen the last of the fakes he peddled. The FBI recovered about 40 forgeries; there could be hundreds more that were sold to unsuspecting victims. “This is a case we’re going to be dealing with for years. Spoutz was a mill,” McKeogh said.

Link to the rest at FBI News

The OP’s are all dealing with the fringes of intellectual property, but, in each case, the original creator (or the individual creating the forgery) took something that had little to no intrinsic value — clay in the case of the Gilgamesh Dream Table, blank canvases in the case of the paintings — and added value to it

Are Fictional Characters Protected Under Copyright Law?

From Jane Friedman:

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

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

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

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

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

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

. . . .

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

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

. . . .

Public domain characters cannot be protected

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

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

. . . .

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

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

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

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

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

Link to the rest at Jane Friedman

PG is not entirely satisfied with the OP.

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

Copyright designs found weak when derived from common ideas

From Thompson Coburn LLP:

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

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

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

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

Link to the rest at Thompson Coburn LLP

Basics of Copyright 

From The Office of General Counsel, Harvard University:

What does copyright protect?

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

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

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

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

. . . .

What is “fair use”?

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

What is the test for fair use?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PG’s Thoughts

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

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

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

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

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

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

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

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

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

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

CNRS Commission Defends Roques in Response to Plagiarism Accusations

From Daily Nous:

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

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

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

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

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

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

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

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

Link to the rest at Daily Nous

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

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

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

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

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

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

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

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

Will Voice Recognition Tech Be the Target of a New Wave of Complaints?

Not really anything to do with writing and books (at least so far), but PG found this legal issue to be interesting.

From Class Actions Reporter:

How would you feel if you knew that, when you placed an order at a fast-food drive-up window, the fast-food company was recording your voice and voiceprint for future use in its artificial intelligence (AI) systems? The complaint for this class action alleges that’s what McDonald’s Corporation does when you order in some locations, and it claims the practice violates the Illinois Biometric Information Privacy Act (BIPA).

The class for this action is all individuals whose voiceprint biometric identifiers or biometric information were collected, captured, stored, or otherwise used by or on behalf of McDonald’s within Illinois, at any time within the applicable limitations period, and for whom McDonald’s does not have a written record of consent.

Biometrics are unique, personally-identifying features, like voiceprints, fingerprints, facial geometry, and iris configurations. They can be obtained by scanning, recording, or otherwise capturing records or images of these things.

Illinois passed BIPA because it recognized that biometrics are unlike other personal identifiers in that they cannot be changed. If someone steals your credit card number, you can cancel that credit card and get a new one with a different number. But if someone steals your fingerprints, you cannot get a new set of fingers with different prints. BIPA attempts to give private companies that deal with biometrics some oversight and basic regulation.

While many companies are now using biometrics for worker timekeeping purposes, that’s not the use this complaint objects to. Instead, the biometrics are collected for the use of an AI voice assistant McDonald’s is using in some of its drive-throughs.

McDonald’s is using voice recognition to allow customers to order without interaction with other human beings. The complaint alleges, “Critically, McDonald’s AI voice assistant’s voice recognition technology collect customers’ voiceprint biometrics in order to be able to correctly interpret customer orders and to identify repeat customers to provide a tailored experience.”

BIPA requires that private companies must do certain things if they wish to take an individual’s biometrics, as set forth in the complaint:

  • They must tell the subject in writing that their biometrics will be collected and stored.
  • They must tell the subject in writing “of the specific purpose and the length of time for which such biometrics are being collected, stored, and used[.]”
  • They must get a written release from the subject permitted them to collect the biometrics.
  • They must publish “a publicly available retention policy for permanently destroying biometrics when their use has been satisfied or within 3 years of the individual’s last interaction with the private entity, whichever occurs first.”

The complaint alleges, “However, McDonald’s has failed to comply with BIPA’s regulations and does not notify its customers that when they interact with McDonald’s AI voice assistant their voiceprint biometric information is used and collected, nor does McDonald’s obtain” their customers’ consent for this collection and use.

Link to the rest at Class Actions Reporter

Amazon has felt some heat about guaranteeing a right of privacy to users of Alexa voice-powered devices. It appears that the plaintiff’s tort bar in Illinois thinks McDonald’s is a nice target.

McDonald’s, which was once headquartered in the Chicago suburbs (and in DuPage County, which historically didn’t award big jury awards in suits by individuals against large companies), now has its headquarters west of the main business district in downtown Chicago (in Cook County, where juries are willing, sometimes anxious, to give large verdicts against large companies), not far from Greektown, one of the city’s many ethnic neighborhoods.

PG will have to rely on more recent residents of Chicago than he is to explain why that neighborhood is a good place for a huge company to build its headquarters. When PG last spent much time in the city, Dianna’s Grocery was the only attraction that could draw him to that general area.

Total Recall Technologies v. Luckey

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 palmertech@gmail.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.

. . . .

All motions are DENIED.

Link to the rest at Total Recall Technologies v. Luckey, No. C-15-02281-WHA, United States District Court, Northern District of California

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.

Photo of some of its products from Oculus VR

Warhol v. Goldsmith

From The Center for Art Law:

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

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

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

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

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

. . . .

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

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

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

. . . .

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

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

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

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

. . . .

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

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

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

. . . .

Fair Use Defense

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

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

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

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

. . . .

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

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

Link to the rest at The Center for Art Law

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

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

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

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

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

From the Stanford University Libraries:

What Is Fair Use?

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

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

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

Commentary and Criticism

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

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

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

Parody

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

Link to the rest at the Stanford University Libraries

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

Transformative Fair Use

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

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

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

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

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

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

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

There was a dissenting opinion in the Supreme Court case:

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

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

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

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

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

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

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

Legal/Philosophical Diversion – Feel Free to Skip

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

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

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

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

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

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

End of Diversion

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

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

Men feared witches

Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears.

Justice Justice Louis Brandeis, Whitney v. California, Concurring Opinion

The Freedom to Read Statement

From The American Library Association:

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

Link to the rest at The American Library Association

Businessman Charged with Running Elaborate Scheme to Defraud Amazon

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.

Link to the rest at The US Attorney’s Office, District of Rhode Island

From Business Wire:

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.

Link to the rest at Business Wire

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.

Link to the rest at The US Attorney’s Office, District of Rhode Island

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.

Foundry Lawsuit

From Locus:

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.”

Link to the rest at Locus

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.

Class Action Suit: Amazon & Publishers Face Price Collusion

From Personanondata:

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.

Link to the rest at Personanondata


Trigger Warning: Those susceptible to any adverse reactions or consequences as a result of reading an extended opinion of PG should stop reading NOW.

If such persons take the risk of reading further, they should notify a relative or friend that an intervention may be necessary to pull them back to some semblance of sanity following their consumption of an excessive dose of PG.

You Have Been Warned!!

Love and Kisses, Your Buddy,

PG

XXOOXX

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.

Link to the rest at The Balance

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.

Link to the rest at Practical Law Company

Back to Amazon and Big Publishing.

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.

Authors: Know Your Rights! Key Provisions in a Publishing Contract

From Anne R. Allen’s Blog… with Ruth Harris:

You finally received the call from your agent that you’re going to be a published author.

Congratulations!

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.

. . . .

Grant of Rights

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:

  1. reproduce (that is, make copies) your book;
  2. create derivative works based on your book;
  3. distribute your book;
  4. publicly display your book; and
  5. 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.

Licensing

Licenses are rights that are granted to a third party. There are three parts to a license that you need to consider:

  1. Exclusive licenses vs. non-exclusive licenses.
  2. Territory
  3. Term

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:

  1. US or North America (exclusive English language control in the US or North America)
  2. World English
  3. 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:

  1. “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)
  2. Approximate royalty and subsidiary right percentages:
  3. Hardcover – 10% – 15%
  4. Paperback – 6-8%
  5. 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:

  1. Translation – 75%/25%
  2. Audio – 25%
  3. Book club – 90%/10%
  4. Performance (book-to-film) – 80%/20%
  5. 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.

Link to the rest at Anne R. Allen’s Blog… with Ruth Harris

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.

Freelance Fight Goes National: Must-Know Info on The ABC Test

From Making a Living Writing:

[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:

Pro Act language

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.”

Link to the rest at Making a Living Writing

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 ‘Big Five’ publishers accused of ebook price-fixing

From The Guardian:

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.

Link to the rest at The Guardian

Rock-Stars Selling Publishing Rights

From Ultimate Classic Rock:

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.”

Link to the rest at Ultimate Classic Rock

PG notes that the reasons that these composers are able to cash in, both during their careers and later in their lives is because they retained ownership of the publishing rights to their songs.

Under the standard contracts used by traditional book publishers, the author grants all publishing rights to the book or books listed in the publishing contract.

The Nine Worst Provisions in Your Publishing Contract – Part 1

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.

Special Notes

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.

Disclaimer

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.

‘Copyright Troll’ Liebowitz Suspended From Manhattan Court

From Bloomberg Law:

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

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

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

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

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

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

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

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

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

How to Talk to a Lawyer

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.
  • How Much?
    • 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.
  • Legal Ethics
    • 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.
    • You can find a set of Model Rules of Professional Content created by The American Bar Association by clicking on the link.
  • 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.

The End

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.

How to Respectfully Disagree in Writing

From Grammarly:

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.)

Link to the rest at at Grammarly

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.

Vietnamese Publishing House Co-Founder Arrested

From Publishing Perspectives:

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.”

Link to the rest at Publishing Perspectives

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.

Led Zeppelin Wins ‘Stairway to Heaven’ Copyright Battle

From Variety:

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

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

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

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

. . . .

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

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

Link to the rest at Variety

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here’s the link to Skidmore vs. Led Zeppelin

Don’t Do Business with Incompetents

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:

  1. Don’t do business with crazy people.
  2. 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.

For authors:

  1. Don’t do business with a crooked publisher.
  2. 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.
  3. 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.

Scammers Impersonating Major Publishing Houses

From Writer Beware:

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:

Link to the rest at Writer Beware

PG had to talk a would-be author down from pursuing a scam like this.

If the excerpts above raised any more scammer red flags, they could be mistaken for Chinese New Year on Tiananmen Square

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

From The New York Times:

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

. . . .

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

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

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

. . . .

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

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

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

. . . .

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

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

. . . .

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

Link to the rest at The New York Times

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

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

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

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

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

Kuwait amends censorship law for books, but many questions remain unanswered

From The New Publishing Standard:

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.

Link to the rest at The New Publishing Standard

May the 4th be with Star Wars Intellectual Property

From Suiter/Schwantz:

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

. . . .

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

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

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

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

Link to the rest at Suiter/Schwantz

Amazon wasn’t the first

Per yesterday’s post, US Publishers, Authors, Booksellers Call Out Amazon’s ‘Concentrated Power’ in the Book Market, one of the contentions of the coven of Big Publishers and Company was:

“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

Law Alone Can’t Protect Free Speech

From The Wall Street Journal:

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.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

Simon & Schuster’s Mary Trump Book Temporarily Blocked by Restraining Order

From Publishing Perspectives:

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.”

Update

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.

Link to the rest at Publishing Perspectives

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.

Watership Down author’s estate wins back all rights to classic novel

From The Guardian:

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.”

Link to the rest at The Guardian

Plagiarism – 2020

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.

Link to the rest at Forbes

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

Indie Publishing in the Time of Covid

From Writers in the Storm:

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.

Link to the rest at Writers in the Storm

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.)

Suing Hollywood

From CrimeReads:

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 circlingNew 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.

The game was about to get ugly.

Link to the rest at CrimeReads

PG says if you want a calm and peaceful life, don’t do business with crooks. Even if you win, the mental and emotional cost is likely to be huge.

Not that anyone in Hollywood is or ever was or will be a crook, just a general observation concerning humankind as a whole.

Force Majeure

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.

From Law.com:

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. 

Link to the rest at Law.com

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.

Sovereign immunity

From The Legal Information Institute:

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:

  1. Governmental v proprietary function test (Was the actor functioning in a governmental fashion or a proprietary fashion?)
    1. 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
    2. 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
  2. Ministerial/operational v. discretionary functions/acts test (Was the actor performing a ministerial/operational task or a discretionary task?) 
    1. If the actor is performing a ministerial/operational action, then there is not immunity. 
    2. If the actor is performing a discretionary action, then there is immunity.
  3. Planning v implementational (Was the actor planning an action or implementing an action?)
    1. If the actor’s planning of policy results in harm, then there is immunity
    2. If the harm happens due to the government’s implementation of the plan, then there is not immunity  
  4. Non-justiciable v. justiciable
    1. 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.

Link to the rest at The Legal Information Institute

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. 

More about justiciability at The Legal Information Institute

When Should Writers Incorporate or Create an LLC?

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.

Link to the rest at Writers Digest

PG will provide a bullet point response:

  • 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.

No, Seriously, Don’t Try To ‘Trademark’ Coronavirus

From Law360:

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?

Link to the rest at Law360

ABA Journal: Market Spotlight

From Writers Digest:

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.

Link to the rest at Writers Digest

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:

  1. 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.
  2. Thus, the ABA is looking for stories that will interest both its members and non-members who may be wondering if they should join.
  3. 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.
  4. 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.
  5. 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.
  6. 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.

Copyright and Collective Authorship: Locating the Authors of Collaborative Works

From IPKat:

[Author Dr. Daniela] Simone assesses how UK law defines shared authorship and how authorship is then allocated among creative collaborators. The book confirms copyright’s reputation as a legal framework ill-suited for collaborative creative processes, arguing that it prefers single authorship (and ownership). As a result, rights tend to be concentrated in singular, rather than, multiple, hands.
Simone explains the ‘why’ for copyright’s bias for single authorship and where such bias might come from. Simone then challenges this bias by offering an alternative read on copyright and collective authorship.
The book opens with a description of sole versus joint-authorship under UK law (Chapter 2). Simone’s analysis of case law on joint authorship sheds light on the oddities and incoherencies of the doctrine.

. . . .

(1) Joint-authors are held to a higher standard. In comparing the tests of single authorship with that of joint-authorship, Simone reveals that UK courts hold parties to a higher standard when they seek ‘joint-authorship’, because they must demonstrate a more ‘significant’ or ‘substantial’ contribution to the work. This difference in threshold has no statutory basis, as the Copyright, Designs and Patents Act 1988 (CDPA) is neutral on this question (as was the text of the previous statutory formulations, e.g. here).
(2) The test for joint-authorship is built upon a small number of highly fact-sensitive cases. There is scant precedent on joint-authorship to turn to for guidance. The few case law authorities that we do have are difficult to apply because each case involves different types of creative work, creative processes and collaboration patterns.
(3) The joint-authorship doctrine is ‘polluted’ by concerns about shared ownership. Judicial discussion on the attribution of joint authorship often address whether it would be practical for the ownership of the work to be shared between multiple parties. This approach, Simone argues, conflates two different concepts of copyright (authorship and ownership), which copyright law takes such care to distinguish.
(4) The test for joint-authorship breaches the principle of aesthetic neutrality. It is a well-established principle of copyright law that copyright should apply regardless of the work’s aesthetics, artistic quality or genre. Judges keeping to this principle in the context of joint-authorship claims have complicated this jurisprudence. This principle has courts avoiding language that might refer to the aesthetics, genre or quality of the work. This is especially true when judges assess the evidence submitted by the parties on the creative process and their relative contribution to the work. But courts end up producing open-ended, vague, abstract, and inconsistent language by being overly cautious on this point. 

. . . .

Simone’s chief recommendation is to close this gap between the law and social norms on authorship and credits so that collective authorship enjoys its proper place within the framework of copyright. The author proposes to do so by importing into copyright law some of the more nuanced field-specific practices according to which collaborators negotiate authorship. Simone suggests that this should bring copyright into line with the expectations of creators on authorship and credits.

. . . .

These conclusions come after road-testing the joint-authorship doctrine on three types of collective authorship: Wikipedia entries (Chapter 4), Australian Indigenous Art (Chapter 5) and films (Chapter 6). The use of these three case studies in this way keeps Simone’s critique of the joint authorship doctrine rooted in concrete examples. 

Link to the rest at IPKat

PG suggests that a takeaway for authors is that, if you are writing a book with a co-author, you should have a signed contract that, among other things, specifies how authorship will be handled for copyright and book credit purposes.

As with a great many things legal, problems rear their ugly heads in this area of human relationships when money (often, but not always, significant amounts of money) is involved. On occasion, pride works almost as well as money.

EPO publishes grounds for its decision to refuse two patent applications naming a machine as inventor

From The European Patent Office:

The EPO has published its decision setting out the reasons for its recent refusal of two European patent applications in which an AI system was designated as the inventor. 

Filed by an individual in autumn 2018, the applications EP 18 275 163 and EP 18 275 174 were refused by the EPO following oral proceedings with the applicant in November 2019, on the grounds that they do not meet the legal requirement of the European Patent Convention (EPC) that an inventor designated in the application has to be a human being, and not a machine.

In both applications a machine called “DABUS”, which is described as “a type of connectionist artificial intelligence”, is named as the inventor. The applicant stated that he had acquired the right to the European patent from the inventor by being its successor in title, arguing that as the machine’s owner, he was assigned any intellectual property rights created by this machine.

In its decisions, the EPO considered that the interpretation of the legal framework of the European patent system leads to the conclusion that the inventor designated in a European patent must be a natural person. The Office further noted that the understanding of the term inventor as referring to a natural person appears to be an internationally applicable standard, and that various national courts have issued decisions to this effect. 

Moreover, the designation of an inventor is mandatory as it bears a series of legal consequences, notably to ensure that the designated inventor is the legitimate one and that he or she can benefit from rights linked to this status. To exercise these rights, the inventor must have a legal personality that AI systems or machines do not enjoy.

Finally, giving a name to a machine is not sufficient to satisfy the requirements of the EPC mentioned above.

Link to the rest at The European Patent Office

The thought randomly passed through PG’s morning mind while he was reading the OP.

Typically patent applications require some sort of attestation to the effect that the filer is the inventor and the facts in the application are true.

Here is the attestation language from a USPTO form for a Utility or Design application:

The above-identified application was made or authorized to be made by me.

I believe that I am the original inventor or an original joint inventor of a claimed invention in the application.

I hereby acknowledge that any willful false statement made in this declaration is punishable under 18 U.S.C. 1001 by fine or imprisonment of not more than five (5) years, or both.

Since the original applications in the OP named DABUS as the inventor, will a subsequent application signed by humans associated with DABUS be valid if someone has already attested that DABUS is the author and not the conniving humans who are trying to claim credit and rights to something they didn’t create?

Major Labels’ Billion-Dollar Payday Under Fire As Cox Communications Challenges ‘Shockingly Excessive’ Damages Verdict

From Music Business Worldwide:

In December, a jury ruled that US-based internet service provider Cox Communications was liable for the infringement of over 10,000 music copyrights by its users. The company was ordered to pay Universal, Sony and Warner a whopping $1bn in collective damages – equivalent to just over $99,000 for each of the 10,017 works infringed.

. . . .

Cooper noted Warner’s satisfaction with the ruling, which he pointed out was the fifth largest U.S jury award in the whole of 2019, and which, he said, “clearly demonstrates that juries understand piracy is not okay”.

Cooper noted that WMG and/or the record industry had also brought similar cases against four other ISPs: Charter, Grande, RCN and Bright House, “all of which should proceed to trial within the next 12 to 18 months”.

. . . .

Cox Communications just lodged a fierce legal motion challenging the $1bn damages verdict – calling it “unprecedented”, and suggesting that the amount of money it’s being told to pay is “grossly excessive”.

According to a Memorandum filed Friday (January 31) by Cox and obtained by MBW, the company calls for one of two new outcomes – either a remittitur (i.e. a reduction in the amount of damages awarded) or an entirely new trial.

The Memorandum, filed with the Eastern District of Virginia Court, argues: “The $1 billion award is a miscarriage of justice; it is shockingly excessive and unlawfully punitive, and should be remitted or result in a new trial.”

Cox adds: “The award of $1 billion appears to be the largest award of statutory copyright damages in history. This is not by a matter of degree. It is the largest such award by a factor of eight.

. . . .

“It is the largest such award for secondary copyright infringement by a factor of 40. It is the largest jury verdict in the history of this District by a factor of more than 30.

“It is by any measure a shocking verdict, wholly divorced from any possible injury to Plaintiffs, any benefit to Cox, or any conceivable deterrent purpose.”

Cox argues that the $1bn damages verdict “exceeds the aggregate dollar amount of every statutory damages award rendered in the years 2009-2016 by more than four hundred million dollars”.

The firm cites what it calls the three previous biggest copyright statutory damages awards in the States: (i) Atlantic Recording v. Media Group Inc in 2002 ($136m); (ii) Disney Enters., Inc. v. Vidangel, Inc in 2019 ($62.4m); and (iii) UMG Recordings, Inc. v. MP3.Com, Inc in 2000 ($53.4m).

Cox posits that all three of these verdicts “were rendered against direct infringers — people who actually misappropriated the copyrighted material for their own use and profit”. In most cases, it says, these infringers “were conducting businesses based upon copyright infringement” making them “adjudicated pirates”.

. . . .

As an ISP, Cox argues that such an accusation does not apply to its business, suggesting that rather than being a “direct infringer”, it should instead be classified as a “secondary infringer” in the December ruling.

Cox then points out that the largest statutory damages ever awarded against a secondary infringer happens to be against itself – $25m in BMG Rights Mgmt. LLC v. Cox Communications, Inc. (2015).

“The $1 billion award thus appears to be the largest ever against a [secondary] infringer situated like Cox — by a factor of 40,” it says.

Link to the rest at Music Business Worldwide

Gold among the dross

From Aeon:

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;
  • named fellowships;
  • membership on review committees for awards and fellowships;
  • membership on editorial boards of journals;
  • journal editorships;
  • 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;
  • committee chairs;
  • 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. 

Link to the rest at Aeon

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.

What’s in one’s own image (right)?

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.

Link to the rest at The Journal of Intellectual Property Law & Practice (multiple citations to statutes, cases, etc., omitted for the benefit of non-legal readers)

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.