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.
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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.
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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.
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Ask questions; empathize some more
Questions can politely point to what you want without seeming unduly demanding or unkind. Picking up where we left off with your landlord above, you might next ask this:
“Is there any way to expedite the installation? If not, could we negotiate a reduction to our rent or our portion of the heating bill in the meantime, since our kitchen is so drafty?”
Questions also keep the conversation moving forward and show you value the other person’s input. And if you’re worried the many questions you’re asking will become annoying, a concise way to acknowledge as much is, “Not to belabor this, but…” (That said, do try to read the vibe and avoid belaboring anything you don’t have to.)
PG completely endorses the approaches Grammarly recommends.
Unless you suspect a dispute may be coming down the road.
PG isn’t talking about a polite disagreement about when the new stove will be installed, but rather what happens if the new stove is never installed or if it’s installed by an idiot and starts a fire.
In other words, if some sort of a legal dispute is foreseeable.
If there’s a fight that ends up in Small Claims Court or if each side lawyers-up, a statement made for the purpose of smoothing ruffled feathers might be subject to a different interpretation.
In social situations, when discussing a past event with friends, PG might be inclined to say something like, “I might be wrong, but I remember that Chipper had too much to drink and took the first swing, but perhaps I’m confused about what happened.”
If PG were later asked about Chipper, his state of mind and what he did in some sort of formal setting, perhaps with a judge nearby, if he said something like, “Chipper was drunk and tried to punch Buzz in the nose,” Chipper’s counsel might ask if PG had admitted he might be confused or wrong on a prior occasion.
Scheduled to address an October 15 discussion at Frankfurter Buchmesse on the freedom to publish, a co-founder of the 2020 Prix Voltaire-winning Liberal Publishing House has been arrested. An alert from Amnesty International issued within an hour of this writing warns that Pham Doan Trang is “at grave risk of torture.”
Amnesty’s director of campaigns, Ming Yu Hah, says that Pham Doan Trang “may face up to 20 years in prison” as “an internationally-recognized author and human rights defender who has been repeatedly targeted by the Vietnamese authorities solely for peacefully exercising her right to freedom of expression.”
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One of the participants in the upcoming event at Frankfurt, Will Nguyen, has tweeted out a letter left by Pham Doan Trang in case of her detention. In “Just in Case I Am Imprisoned,” she writes, in part, “If prison is inevitable for freedom fighters, if prison can serve a pre-determined purpose, then we should happily accept it.”
. . . .
“The men and women who work for the Liberal Publishing House every day risk their freedom and even their lives just to publish books. The award that we receive today does not just recognize our tireless efforts but it represents the bravery of tens of thousands of Vietnamese readers who have been harassed, who have been arrested, and interrogated simply for reading our books.”
PG suggests we all remember Pham Doan Trang in our thoughts and prayers and be thankful that many of us live in countries like the United States whose First Amendment to its Constitution reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
and the European Union, within which Article 11 of the Charter of Fundamental Rights applies. Article 11 reads as follows:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
This also means the freedom and pluralism of the media shall be respected.
PG was going to insert similar statements concerning freedom of expression in the UK and Canada, but his research did not locate any similar statement that does not include some parliamentary or judge-made exceptions.
It appears that libel and slander laws (which are also present in the United States) have been and, apparently, continue to be usable as a bludgeon to constrain freedom of expression to a greater extent than similar laws can be applied for such purposes in the US.
PG is happy to be corrected or have his understanding clarified by those who know more about this subject in Canada and the UK.
The U.S. Supreme Court on Monday declined to take up the long-running copyright battle over Led Zeppelin’s “Stairway to Heaven,” leaving in place a ruling that rejected infringement allegations over the 1971 song.
The justices denied a petition aimed at reviving the case, ending six years of litigation over claims that the song’s writers, Jimmy Page and Robert Plant, plagiarized the song’s iconic intro from the 1968 song “Taurus” by the group Spirit.
The decision follows a March victory for the group in which the 9th Circuit Court of Appeals upheld a jury verdict finding the song did not infringe on “Taurus.”
Journalist Michael Skidmore filed the suit in 2014, on behalf of the estate of Randy Wolfe, the late Spirit frontman. After losing at trial, Skidmore appealed to the 9th Circuit.
. . . .
The appeals court’s en banc ruling marked a win for the music industry, which had felt besieged by frivolous copyright suits since the “Blurred Lines” trial in 2015. The appeals court overturned the so-called “inverse ratio rule,” a standard that set a lower bar for similarity if plaintiffs could prove a higher level of access to the infringed work.
The 9th Circuit also made it harder to claim infringement based on a “selection and arrangement” of unprotectable musical elements. Finally, the ruling expressed skepticism about claims based on just a handful of notes.
PG admits that the first little bit of each song do sound quite similar.
But, as the OP describes, these are only a “handful of notes” and examining what is really going on in the two introductory portions shows that there are some significant differences. Once past the intro, the two songs are much different.
Additionally this particular pattern of descending notes also appears in more than a few other musical pieces which predate the creation of both songs. That fact alone might indicate that the plaintiff’s copyright claims lack much strength.
PG writing “It was a dark and stormy night” doesn’t provide any substantial basis for PG claiming a copyright to the phrase. “It was a dark and stormy night in Des Moines” isn’t really much different.
Specifically, the court found that eight measures of the two songs were similar. However, Stairway to Heaven is much, much longer than eight measures and the plaintiff had only registered a copyright for a single page of sheet music.
Here is what the the copyright infringement claim was based upon, taken from the copyright filing made by the Plaintiff and included in the Court’s opinion:
Here’s a comparison between the original and the Led Zeppelin version, also from the court’s opinion:
The top two lines are from Taurus, the alleged copyright-protected original, and the bottom two lines are from the introduction to Stairway to Heaven.
The court opinion included the following portion of the testimony of a music expert hired by the the defendants:
PG notes that when a judge or panel of judges quote a principal expert witness for the defendant, the plaintiff may conclude that she/he/they will not be happy with the court’s decision.
In addition to almost everyone else, judges and lawyers commonly use analogies to describe something complex that is difficult to accurately describe in words. Courts issue their decisions using words and sentences, not musical compositions.
In this respect, Dr. Ferrara, the expert testifying on behalf of the defendants in the pull-quote, earned his almost-certainly large fee by providing analogies that even a tone-deaf judge could understand.
“Crab” and “absent” both contain the letters “ab” in sequence, but the entire words are completely different.
“Senator” and “treason” each contain exactly the same letters, but the order in which the letters appear in the two words is different and the meaning of the two words are not at all the same.
Perfectly lovely analogies that are far easier for 99% of law school graduates to understand than “descending notes of a chromatic musical scale” and “a different ascending line that is played concurrently with the descending chromatic line, and a distinct sequence of pitches in the arpeggios.”
Here’s a video that includes recordings of the melodies created by the plaintiff and the allegedly infringing portion of the defendants’ song.
Since some visitors had problems with an embedded PDF PG included in a recent post, PG will link to a copy of the 9th Circuit Court of Appeals opinion which the US Supreme Court decided to let stand and decline to review.
The opinion is 73 pages long, so you will need to read it to understand the decision and the copyright principles involved. PG’s fluffy little summary is not an adequate substitute for reviewing the whole thing.
However, since you are not facing a final exam in copyright law, you can do whatever you like without receiving a bad grade.
Over many years of practicing law at a very retail level (unlike what he does today), PG developed a couple of aphorisms for his own law business and has since concluded they apply on a broader scale:
Don’t do business with crazy people.
Don’t do business with crooks (unless you practice criminal law and get paid in full up front).
In a small-town law practice, all sorts of people walk in through the door. PG always hired the smartest secretaries/paralegals he could find and paid the good ones more than they could earn anywhere else in the local economy so they would stick around. These wonderful women spared PG a great many encounters with crazy people. (PG wasn’t biased against men, but none ever applied.)
Once in awhile, a crazy person would slip by PG’s sharp watchdogs, however. (A lawyer friend once told him, “The problem with fools is that they can be so ingenious.” Ditto for crazy people.)
On a couple of occasions, a crazy person who slipped by the support staff also eluded PG’s crazy person screen. On a couple of other occasions, the Legal Aid office asked PG to help a poor unfortunate crazy person and PG agreed, sight unseen.
(Legal Aid is a generic name for a variety of organizations in the United States that help provide legal assistance for those who need it and can’t afford an attorney. In many cases, Legal Aid staff attorneys are able to provide the needed help. For other cases, staff attorneys don’t have the necessary expertise or aren’t able to solve the problem for other reasons and practicing attorneys are asked to help, either for no fee or for a fee that Legal Aid pays that is much lower than the attorney would ordinarily charge. Legal Aid organizations generally limit their services to civil matters while Public Defenders, paid by the local, state or federal government, represent criminal defendants who are indigent and unable to afford private counsel.)
While crazy clients make for some colorful war stories that lawyers swap at bar association dinners, they are apt to consume an enormous amount of time and effort on the part of counsel and staff and generally disrupt what is already a very busy business environment. (One crazy client of PG decided she would occupy PG’s waiting room until he agreed to speak with her at length for the thousandth time about what a terrible person her estranged husband was, a topic that wasn’t relevant to the division of marital property under state law. After efforts to persuade her to depart failed, the local police were called and the client screamed, “Rape!” over and over again as she was forcibly removed from PG’s office.)
This long, long prelude to PG’s equivalent advice to authors is over.
Don’t do business with a crooked publisher.
Don’t sign long-term publishing agreements with a small-time publisher, regardless of how pleasant he or she is, that will tie up your books for a long, long time unless you don’t really care much about your book or receiving many royalties from its sales.
Don’t do business with an incompetent publisher, regardless of how well-meaning the publisher may seem.
PG will speak briefly [correction – not very briefly at all] about incompetent publishers, based upon a recent encounter about which he cannot divulge details because of obligations of confidentiality to a client.
To the best of PG’s knowledge, there is no law or regulation in the United States that places any limitation on whoever can call themselves a publisher. An individual who has spent her entire adult life as a plumber can retire from plumbing one day and open Plumber’s Publishing the next morning.
There are a surprising number of people who do something like PG’s plumbing hypothetical in the United States. Sometimes a printer or someone who has been in the printing business will decide to become a publisher. Sometimes, the owner of a successful bookstore expands into publishing. Both these people know may be an expert on an aspect of the book business, but that doesn’t make them knowledgeable enough to become a reliable publisher.
While PG takes religion in general and his personal religious beliefs in particular seriously, he doesn’t hesitate to say that more than a few religious publishers fall into this don’t-know-much-about-publishing basket.
One of the common practices of incompetent publishers is to take a copy of a publishing agreement from another incompetent publisher, change the name of the publisher to Plumber’s Publishing, and call it their own.
Then, just like the incompetent publisher before them, Plumber’s Publishing starts rewriting this and adding that.
In the end, an unwitting author is presented with the 15th generation of a publishing agreement that may not have been particularly well-written by the original creator, lawyer or not, and certainly has not been improved by the tweaks and the tweaks-of-tweaks that it has undergone since then.
An unwitting author may believe that a legal document with Plumber’s Publishing Publishing Contract at the top is an official and reliable publishing agreement, especially when Jane Plumber says, “This is our standard publishing contract.”
What reasonable person would question a “Standard Contract” fresh off a cheap inkjet printer?
If an author is smart enough to organize and write a decent book, that author likely possesses a higher level of general intelligence than Jane Plumber does.
PG has seen enough publishing contracts to assure one and all that there is no “Standard Publishing Contract.”
A Random House imprint has a Standard Contract that is regularly modified by savvy lawyers or agents working with an author.
A Simon & Schuster imprint has a Standard Contract that is not the same as a Random House Standard Contract. Simon & Schuster’s Standard Contracts are regularly modified by savvy lawyers or agents working with an author.
As PG has said on more than one previous occasion, if you sign a bad rental contract for an apartment, it may cost you some money, but it won’t last forever. If you sign a bad purchase agreement to buy an automobile, it may cost you some money, but it won’t last forever.
Most unfortunately, a bad publishing contract and 99% of “Standard Publishing Contracts” will last forever, absent expensive legal interventions after the contract is signed.
This is because, in dull legalese, most book publishing contracts give the publisher the exclusive right to publish the book “for the full term of the copyright” or something similar.
Under current US copyright law, “the full term of the copyright” is the rest of the author’s life plus 70 additional years. Copyrights last for similar periods of time in other major Western nations.
Everyone currently working for the publisher will almost certainly be dead long before the “Standard Publishing Contract” expires. The current owners of the publisher will almost certainly be dead before the contract expires.
Anyone working for the publisher can quit and go to work somewhere else, taking their accumulated talents and abilities with them.
But the author can’t “quit” the “Standard Publishing Contract”.
The best book the author has ever written or will ever write will always be published by Plumbers Publishing unless someone persuades whoever owns Plumbers Publishing to give up its rights to the author or the author’s heirs. This persuasion will almost certainly involve money paid to Plumbers Publishing or to expensive lawyers who sue Plumbers Publishing on behalf of the author or the author’s heirs.
A couple of weeks ago I wrote about scammers impersonating reputable literary agents. These are not isolated incidents: I have a growing file of reports and complaints about this growing phenomenon–including from writers who’ve lost large amounts of money.
Now publishers are being impersonated as well. Here are a couple of examples of the kind of thing I’m seeing.
Here’s the pitch one author received from “Michael Smith” of “HarperCollins” (see the email address):
To pass the “1st stage of the acquisition” of their book, and move on to “an exclusive contract,” the author had already been persuaded (by “agent” Arial Brown, who is as fake as this offer) to hand over more than $8,000 for a new website and YouTube video. Now, in order to proceed to the next stage, they must shell out still more cash for “Developmental Editing and Content Editing.” But not to worry–all that spending is in aid of big rewards down the line:
Addison Cain was living in Kyoto, volunteering at a shrine and studying indigenous Japanese religion. She was supposed to be working on a scholarly book about her research, but started writing intensely erotic Batman fan fiction instead.
It happened almost by accident. It was 2012, and Ms. Cain — who grew up in Orange County, Calif., under a different name — was three years out of college, alone abroad with a lot of time on her hands. Her command of Japanese was halting, and English titles in bookstores were wildly expensive. So Ms. Cain started reading things she could find for free online, and soon discovered fanfic — stories by amateurs that borrow characters and plots from established pop-cultural franchises.
Ms. Cain began devouring works set in the world of Christopher Nolan’s “Dark Knight” trilogy. She decided to write some of her own, featuring Batman’s nemesis Bane as a sexy antihero, and posted them for free online. She quickly developed a fan base, becoming something of a star in her sub-subgenre.
A few years later, she was living in Arlington, Va., and working as a bartender when she began to wonder if she could turn her hobby into a business. Her husband and parents discouraged her from pursuing something so impractical. Agents were equally dismissive, rejecting or ignoring Ms. Cain’s queries for more than a year. Then, a fellow writer helped Ms. Cain send a manuscript to Blushing Books, a small publishing house in Charlottesville. An editor read it overnight and sent her a contract the next day.
In the spring of 2016, she published “Born to Be Bound,” an adaptation of her fanfic. The story takes place on a future earth where most of humanity has died from a plague and survivors live under a dome, divided into a wolfpack-like hierarchy of dominant Alphas, neutral Betas and submissive Omegas. A powerful, brutish Alpha named Shepherd takes an Omega woman named Claire captive, and they engage in rough, wolfish sex.
Ms. Cain’s fans posted nearly 100 positive reviews on Amazon, enough to get her some visibility. “Unapologetically raw and deliciously filthy,” read one glowing blurb. The debut was a hit. She rushed out several more titles, and the series grossed some $370,000, according to her publisher.
For the next two years, Ms. Cain published at breakneck speed, producing a novel every few months by repurposing her older fan fiction, keeping her books in the algorithmic sweet spot of Amazon’s new releases and turning herself into a recognizable brand. “Dip your toes into the erotica pool,” she said on a 2016 sci-fi and fantasy podcast. “There’s nothing to do here but make money.”
Then, in 2018, Ms. Cain heard about an up-and-coming fantasy writer with the pen name Zoey Ellis, who had published an erotic fantasy series with a premise that sounded awfully familiar. It featured an Alpha and Omega couple, and lots of lupine sex. The more Ms. Cain learned about “Myth of Omega” and its first installment, “Crave to Conquer,” the more outraged she became. In both books, Alpha men are overpowered by the scent of Omega heroines and take them hostage.
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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.
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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.”
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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.
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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.
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“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.”
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Last year, an author who writes in a popular romance subgenre called “Reverse Harem High School Bully Romance” — a trope in which a teenage female character has several aggressive male suitors — claimed that another author had copied her books, and demanded that she remove them. The accused author briefly removed her work from Amazon, but restored them after consulting a lawyer.
Other authors have tried to use trademarks to go after their rivals. Writers have attempted to trademark generic phrases like “dragon slayer” and even the word “dark.” In 2018, the self-published romance author Faleena Hopkins caused a scandal after she registered a trademark for the word “cocky,” and sent infringement notices to other romance authors who used the word in their titles. Amazon temporarily removed some books, including “Her Cocky Firefighters” and “Her Cocky Doctors.” After suing several people unsuccessfully, Ms. Hopkins backed down.
Like Cockygate, the Omegaverse case reveals how easily intellectual property law can be weaponized by authors seeking to take down their rivals. Under the Digital Millennium Copyright Act, individuals or companies can send takedown notices to retailers as long as they have a good faith belief that their work has been infringed. Retailers are protected from being named in related litigation if they remove the material, and many websites comply with D.M.C.A. notices without even investigating the claims. Legal experts say the system is easily abused.
“We’ve seen lots of examples of people sending D.M.C.A. notices when it’s pretty obvious that they didn’t think there was copyright infringement,” said Mitch Stoltz, a senior staff attorney for the Electronic Frontier Foundation, a nonprofit digital rights group. “There’s not much accountability.”
On May 21, the U.S. Copyright Office released a report detailing how the 22-year-old D.M.C.A. has failed to keep pace with the anarchic digital ecosystem, as online platforms have been overwhelmed by a crushing volume of takedown notices. Between 1998 and 2010, Google received fewer than three million such notices; in 2017, the company got more than 880 million — an increase of more than 29,000 percent, according to the report. Many requests are legitimate, but the report notes that other motives include “anti-competitive purposes, to harass a platform or consumer, or to try and chill speech that the rightsholder does not like.”
Amazon agrees that it’s a problem. As the rise of self-publishing has produced a flood of digital content, authors frequently use copyright notices to squash their competition. During a public hearing hosted by the U.S. Copyright Office in 2016, Stephen Worth, Amazon’s associate general counsel, said that fraudulent copyright complaints by authors accounted for “more than half of the takedown notices” the company receives. “We need to fix the problem of notices that are used improperly to attack others’ works maliciously,” he said.
In the Omegaverse case, Ms. Cain’s claim of copyright infringement against Ms. Ellis has struck some as especially tenuous. “They are not very original, either one of them,” said Kristina Busse, the author of “Framing Fan Fiction,” who has written academic essays about the Omegaverse and submitted expert witness testimony for the case on Ms. Ellis’s behalf. “They both stole from fandom or existing tropes in the wild.”
Intellectual property experts say copyright protection applies to the expression of ideas through particular phrasing, but doesn’t cover literary tropes and standard plot points. The writer of a crime novel, for example, can’t copyright the notion of a body discovered in the first act and the killer getting caught in the end.
But the Omegaverse case is likely the first time these legal arguments have been invoked in a dispute over works that grew out of a corpus of fan fiction generated informally by thousands of writers.
PG will note that, both before and after the NYT article was published, a couple of truly nasty lawsuits between the two authors and/or their publishing entities were being fought.
PG will observe that, among lawyers, if litigation of any sort features attorneys being replaced by new attorneys on either or both sides during the litigation, uninvolved attorneys may conclude that the case may be a difficult one for a variety of reasons. Some lawyers, as a matter of general policy, will refuse to accept a case in which prior counsel quit or was fired (assuming that prior counsel is among the few practicing attorneys generally known to be an idiot, a situation which is even more rare than a client wanting to switch legal horses in the middle of a stream).
That said, Ms. Cain was successful in getting the suit filed against her and/or associated entities by Ms. Ellis dismissed.
Here’s a link to Ms. Cain’s story of the lawsuit. In her story, Ms. Cain claims The New York Times did not present the facts behind the dispute with complete accuracy.
PG doesn’t know if Ms. Ellis has made any public comment concerning the disposition of the case. If any of the visitors TPV knows of such a comment by Ms. Ellis, PG would be happy to review it if he receives information about it. The Contact link on TPV is an easy way to send such information to him.
Prior to the new law a 12-member censors committee met twice a month and decided which books would be permitted or banned. Now books can be published first, and banned after. Previously banned books remain banned.
Amendments to Kuwait’s notoriously restrictive press and publications laws were passed by the Kuwait National Assembly this week, in what was described as “an important step in terms of increasing freedom with a balanced commitment to moral, legal and national controls (and) a gift to writers, intellectuals, creators and everybody involved in culture.”
Amendments include a condition that for imported books the importer will bear the legal responsibility for the ideas and opinions expressed in the publication.
. . . .
Kuwaiti activist Abdullah Khonaini told Gulf News:
The freedom of expression is already restricted in Kuwait on multiple levels, this law doesn’t fix it. The amendment shifts the power of censorship away from the executive branch and to the judicial branch. We still need to work on the prohibition section in the law, which needs a stronger political lobby and mature political and societal awareness.
Since the first film of the Star Wars saga, released in 1977, George Lucas and Lucasfilm have become profoundly adept at dealing with legal matters concerning intellectual property. With 205 patents, 1,077 individual trademark applications, and 3,489 registered copyrights under the Lucasfilm empire, it is clear that Lucas and Lucasfilm have been nothing but persistent in protecting their intellectual property rights.
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As noted above, Lucasfilms owns over 1,000 individual trademarks. Furthermore, many of Lucasfilm’s trademarked phrases and words include registrations in multiple international classes, claiming protection in a wide variety goods and services. Unsurprisingly, Lucasfilm has trademarked the term “Star Wars” (U.S. Registration No. 1127229), which was issued December 4, 1979. Additionally, many Star Wars characters have been trademarked, including R2-D2, Darth Vader, Luke Skywalker, Princess Leia Organa, Ben (Obi-Wan) Kenobi, and Chewbacca. Lucasfilm uses the “Star Wars” and related Star Wars trademarks on a variety of goods, such as clothing, costumes, toys, and entire theme parks. To take its IP protection even further, Lucasfilm has even trademarked fun Star Wars-related phrases, such as “May the 4th be With You.” Additionally, a trademark application for Han Solo’s famous line “I got a bad feeling about this” is currently pending with the United States Patent and Trademark Office (USPTO).
George Lucas and Lucasfilm have even received trademark protection for the popular word “Droid,” a term coined by Lucas in the 1977 film Star Wars Episdoe IV: A New Hope when referencing R2-D2, C-3PO, and other automatons. Due to the fact that the term “droid” is protected by trademark, companies that wish to use the term in shows or films now have to pay Lucasfilm to use the word, or prepare to have possible legal action taken against them.
Lucasfilms has registered over 3,489 copyrights since 1978. The copyrights, a range of artistic expressions including scripts, sound recordings, and movie posters. Other copyrighted works include read-along story books with CDs, such as “Star Wars: Attack of the Clones,” adventure books, and chapter books. The copyrighted chapter book titled “Darth Vader and Friends,” a humorous title which plays on Darth Vader’s infamous sullen attitude and lack of many friends, explores the many friendships that have developed within the Star Wars saga.
Lucasfilm has even gone as far as to copyright movie taglines. For example, the tagline, “The next chapter in the Skywalker saga continues as Rey develops her newly discovered abilities with the guidance of Luke Skywalker, who is unsettled by the strength of her powers.” is from newest Star Wars film set to premier this Thursday, December 14th.
“as the subcommittee’s hearings have laid bare, the competitive framework of the publishing industry has been fundamentally altered in recent years—and remains at serious risk of further diminishment—because of the concentrated power and influence of one company in particular: Amazon.”
In response to a comment to that post, PG went off on a frolic in mid-20th Century book history and produced the following:
The contemporary framework of publishing was in the process of fundamental alteration before Bezos sold his first book.
Big publishers were sucking up small and mid-sized publishers like minnows on a trout farm. In the 1950’s and 60’s, there were dozens of independent publishers in New York and elsewhere, some of which were discovering important authors and different voices.
Here are a handful of books published by organizations no longer in existence:
Catcher in the Rye was first published by Little, Brown Fahrenheit 451 – Ballantine Books Lord of the Flies – Faber and Faber Lolita – Olympia Press – in French (after the book was turned down by Viking, Simon & Schuster, New Directions, Farrar, Straus, and Doubleday) The Lion, The Witch and The Wardrobe – Geoffrey Bles (UK) On the Road – Viking Press To Kill a Mockingbird – J. B. Lippincott & Co. Slaughterhouse-Five – Delacorte One Flew Over the Cuckoo’s Nest – Viking Press & Signet Books The Bell Jar – Heinemann A Wrinkle in Time – Ariel Books The Godfather – G. P. Putnam’s Sons Do Androids Dream of Electric Sheep? (Blade Runner, #1) – Doubleday Dune – Chilton Book Company
Cancel culture notwithstanding, legal commentator Ken White argues that “this is a golden age for free speech in America.” For decades, he notes, the Supreme Court has protected all manner of objectionable speech, from burning the American flag to homophobic protests outside servicemen’s funerals. That’s true—but those victories rest on a broad cultural consensus. If campus norms continue to displace free speech culture, judges and lawyers will eventually start to ignore the First Amendment or, worse, chip away at it until it is meaningless.
Free-speech culture gave us the First Amendment to begin with. It kept free speech alive in the tumultuous 19th century. It reinvigorated the First Amendment in the 20th century. It informs interpretations of the First Amendment today—and it will determine whether free-speech protections will survive.
That’s very much in doubt, considering the state of those norms in higher education. Our organization was founded in 1999. Back then, if Princeton investigated a professor because he wrote an op-ed disagreeing with activist demands, or the public called on Auburn to fire a professor for expressing antipolice views online, or a conservative University of North Carolina-Wilmington professor was hounded to suicide for abrasive public statements, it would be a very bad semester. All this happened within two weeks last month, and the fall semester hasn’t even begun. As students graduate, cancel-culture norms spread beyond campus, to newsrooms, corporate boardrooms—and sooner or later courtrooms.
What is free-speech culture? Folk wisdom like “it’s a free country” is one window into cultural values, and free-speech values pervade our idioms. Sentiments like “to each his own” and “everyone’s entitled to an opinion” can be found all over First Amendment law. “Freedom to differ is not limited to things that do not matter much,” the justices observed in West Virginia Board of Education v. Barnette (1943). In Cohen v. California (1971), they declared that “one man’s vulgarity is another’s lyric.”
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[W]ithout a corresponding culture, free-speech law becomes a mockery. Consider the following constitutional provisions:
• “Everyone shall be guaranteed freedom of thought and speech.”
• “Citizens are guaranteed freedom of speech, the press, assembly, demonstration and association.”
• “Everyone has the right to express and disseminate his/her thoughts and opinions by speech.”
Each of these promises sounds similar to the First Amendment’s Free Speech Clause. But Russia, North Korea and Turkey, respectively, lack the free-speech culture necessary to make them real. Even in freer countries such as Spain, Britain and France, people have been imprisoned for rap lyrics, social-media posts, and reading choices.
Even as John Bolton’s The Room Where It Happened: A White House Memoir continues to roil the American political scene, its publisher, Simon & Schuster, now has seen yet another move against it on the month’s upcoming release, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man. by Donald Trump’s niece Mary.
Publishing Perspectives readers will remember that an attempt to block Mary Trump’s book was lodged late in June in the Queens County Surrogate’s Court. The judge quickly rejected the case and the book is set for a release on July 28. You may recall the growing level of interest in the world publishing community in this, as the International Publishers Association issued a statement of support for Simon & Schuster.
On Tuesday afternoon (June 30), however, a new court action temporarily blocked publication of the book.
We’ll walk through the pertinent steps here because, as Simon & Schuster’s attorneys at Davis Wright Tremaine led by Elizabeth McNamara are writing overnight, a successful halt to publication of the Mary Trump book “would be unprecedented in this country,” a violation of what the world publishing community refers to as the “freedom to publish.”
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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.”
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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.”
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Simon & Schuster CEO Karp—a former journalist with the Washington Post, the Miami Herald, and the Providence Journal—recounts in his affidavit, filed overnight with the memorandum of law, that S&S won an auction for Mary Trump’s book. He says he understands that nine or 10 other publishers were in contention for it.
In signing an “individual guarantee” with Simon & Schuster as part of her deal, Karp writes, “Ms. [Mary] Trump warrants and represents, in relevant part, that she has the ‘full power and authority to make this agreement and to grant the rights granted hereunder’ and that she ‘has not previously assigned, transferred or otherwise encumbered [the rights].’ agreement
“The agreement also includes Ms. Trump’s representation that these warranties are ‘true on the date of the execution of this agreement’ and ‘true on the date of the actual publication’ of the book. Further, the agreement provides that the ‘publisher shall be under no obligation to make an independent investigation to determine whether the foregoing warranties and representations are true and correct.’”
Karp goes on to say that nothing has given Simon & Schuster any reason “to doubt the accuracy” of Mary Trump’s warranties and that in a meeting with her about her proposal for the book, “She revealed that she was the primary source for the Pulitzer Prize-winning New York Times article “Trump Engaged in Suspect Tax Schemes as He Reaped Riches From His Father.”
An appellate court has reversed a New York trial court’s order stopping the publication of the Trump book, so S&S has told its printers to keep running the presses 24/7 and shipping books as soon as they’re boxed to flood the world copies with before another judge stops it from publishing.
From various and sundry online publications, it appears that Simon & Schuster won an auction for the book on May 14. In its filing yesterday, six weeks following the end of the auction, Simon & Schuster reported that “75,000 copies already were printed and bound” and “thousands” have been shipped.
Is the publisher’s inventory/shipping system so crude that it doesn’t know how many books it has shipped? That might cause a Simon & Schuster authors to question the accuracy of their royalty reports.
The quoted publishing contract language:
“Ms. [Mary] Trump warrants and represents, in relevant part, that she has the ‘full power and authority to make this agreement and to grant the rights granted hereunder’ and that she ‘has not previously assigned, transferred or otherwise encumbered [the rights].’ agreement”
So, apparently Ms. Trump may have conveniently forgotten about her previously-signed nondisclosure agreement that the Trump heirs claim prohibits her from making some information in the book public.
Simon & Schuster is shouting about the First Amendment, but the only right it has to publish Ms. Trump’s book is because Ms. Trump purportedly gave S&S the right to do so. S&S has no independent right to publish and the magic of publishing doesn’t give it the right to publish something when the author didn’t have the right to publish that same document.
The S&S contract conveniently includes a clause in the Trump contract stating “publisher shall be under no obligation to make an independent investigation to determine whether the foregoing warranties and representations are true and correct.”
In effect the publisher is saying it will rely solely on the author’s representations and warranties in the publishing agreement and won’t look at anything that might seem fishy about whether the author is prohibited from writing the book and giving S&S the right to publish it.
Ms. Trump is certainly bound by what PG will describe as a “willful blindness” clause, but the Trump heirs are not. The fact that Ms. Trump has previously involved in litigation with other heirs would raise a red flag for any attorney representing a publisher who was planning a tell-all book about the Trump family if the publisher were trying to avoid litigation with a notoriously litigious family.
S&S is essentially arguing that it is an innocent bystander that has spent money to publish a book and waving the First Amendment to protect itself.
However, PG contends there are only so many red flags that S&S can ignore and still claim its sanctity under the First Amendment.
PG would argue that the OP description makes S&S appear to be acting much more like a co-conspirator with the author to assist the author in violating the privacy of the Trump family and commit an act that the author apparently promised not to do – open the family secrets to the whole world – and for which the author received a lot of money from family members who wanted privacy and the family secrets kept secret.
PG is far from a fan of President Trump, but confidentiality agreements are quite common in American business and personal contracts.
Should a person desire to work for Apple or Microsoft or CitiBank or Goldman Sachs or General Motors or The United States Army or Simon & Schuster in a position that would permit that individual to access important information about the organization that would benefit competitors of the organization, that person would be expected to sign the sort of confidentiality and non-disclosure agreement that Ms. Trump apparently signed.
If a person violates a confidentiality agreement with the Army, that person could charged with treason. PG doesn’t know if treason still merits a firing squad or not, but whatever the punishment, he expects it would be severe.
To be clear, PG is not suggesting that Ms. Trump or anyone at Simon & Schuster be executed or sent to prison.
However, PG does suggest that the knowing behavior of both of those parties is not the sort of thing The First Amendment should reward with a lot of money or anything else.
The estate of Watership Down author Richard Adams has won back all of the rights to the late author’s classic novel about anthropomorphised rabbits, in a high court ruling against the director of the famed animated adaptation.
The high court in London ruled on 27 May that Martin Rosen, the US director of the 1978 adaptation of Adams’s novel, had wrongly claimed that he owned all rights to the book, in which a group of rabbits fight to survive the destruction of their warren.
The court heard that Rosen, who owned the motion picture rights to Watership Down under his original 1976 contract, had entered into contracts worth more than $500,000 (£400,975) while claiming that he held all rights to the novel. Rosen also made $85,000 from an unauthorised licence for an audiobook adaptation, and also failed to pay the estate fees and merchandising royalties from the 2018 BBC/Netflix television adaptation, on which he served as an executive producer.
In his ruling, Judge Hacon ordered Rosen and his companies to pay an initial $100,000 in damages for copyright infringement, agreeing unauthorised license deals and denying royalty payments. Rosen and his companies were also directed to provide a record of all license agreements involving Watership Down, and pay court costs and the estate’s legal fees totalling £28,000. Rosen is set to pay additional damages, to be determined at a later hearing.
The court also terminated the original contract in which motion picture rights for Watership Down were granted to Rosen.
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“As custodians of this most beloved novel, our family has an obligation to protect the publishing and other rights for Watership Down and to preserve the essence of our father’s creation,” Johnson said. “After many years trying to resolve matters directly with Martin Rosen, we are extremely pleased with the high court’s ruling. We can now look forward to the future and develop new projects that honour the powerful and pertinent messages of Watership Down about the environment, leadership and friendship.”
Speaking to the Guardian, Johnson said she was “utterly exhausted … it has taken a long time to pull it all together and say, dad didn’t get his due.”
PG has been looking into contemporary plagiarism over the past several days and will be writing more than one post about the topic.
The problem is three-fold (or maybe more than three-fold. PG has learned about three elements):
1. When Amazon and others permit an author or plagiarist to self-publish books around the world in a large number of languages. How does an author even discover that plagiarism is taking place?
2. College and university professors (and some high school teachers) are increasingly likely to screen student papers use plagiarism detection software – Turnitin is one of the most popular tools. Some time ago, students learned that copying and pasting a paper or segments of various papers they found online was an easy shortcut to creating a paper to turn in by a class deadline. Sometimes the online sources even included footnotes formatted in proper academic form. Plagiarism detection software is designed to catch such activities.
3. Where there are electronic plagiarism weapons, almost inevitably, there will be electronic or other defenses that prevent detection of plagiarism – paraphrasing the plagiarized information is one tactic that has been used since well before Turnitin came into being. For further information, see, for example, How to Beat Turnitin in 2019 and Get Away with It
4. While many of the ways of beating academically-oriented plagiarism detection are focused on manipulating a student paper, other, more sophisticated computerized tools often referred to as “Spinners” or “Article Spinners” can be used to not only fool college plagiarism checkers, but also make it difficult for the author of a book to discover plagiarism and prove copyright infringement in court.
Article Spinners were developed for a period prior to Google’s search engines developing the intelligence they have today.
The goal for some search engine optimizers was to generate as many pages with key words of interest to Google and, thus, advertisers. The spinners were created to substitute various synonyms for parts of an article on a topic. Thus, “good” in the original article would be changed to “great” “super” “excellent”, etc., etc. Several different words would be spin-treated. Thus, one four paragraph article on fishing lures could be spun into a thousand articles about fishing lures, each seeming to be a different page to Google. If someone was searching for fishing lures, Google would rank the site with a thousand articles about fishing lures higher than a site with one article.
Google has become smarter, so spinning doesn’t work there any more, but spinning software is still around and has reportedly become more sophisticated. Pour the text of a romance ebook into spinning software and out comes another romance that has a similar plot but different character names, places, descriptions, etc.
PG understands that the products of current spinning software require a significant amount of editing, but, if you’re planning to sell an 80,000 word romance, it’s a lot less work to do a quick copy edit than to write a book, develop characters, etc., from scratch.
5. Artificial Intelligence software has become more and more sophisticated in the past couple of years and no one expects progress to stop. And it is currently being used to write stories. Bloomberg generates about half of its articles about public companies and their latest earnings releases using artificial intelligence.
From Forbes magazine in February, 2019:
How do you know I am really a human writing this article and not a robot? Several major publications are picking up machine learning tools for content. So, what does artificial intelligence mean for the future of journalists?
According to Matt Carlson, author of “The Robotic Reporter”, the algorithm converts data into narrative news text in real-time.
Many of these being financially focused news stories since the data is calculated and released frequently. Which is why should be no surprise that Bloomberg news is one of the first adaptors of this automated content. Their program, Cyborg, churned out thousands of articles last year that took financial reports and turned them into news stories like a business reporter.
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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.
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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.
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The AP estimates that AI helps to free up about 20 percent of reporters’ time spent covering financial earnings for companies and can provide better accuracy. This gives reporters more time to concentrate on the content and story-telling behind an article rather than the fact-checking and research.
Contemporary artificial intelligence is leagues beyond article spinners and detecting that the work of another author (or several other authors) as the source material for an AI writing romance or other types of book-length fiction or non-fiction may already be difficult or next to impossible.
PG is interested in this issue as it relates to copyright infringement in the 21st century and will have a few more posts
When New Jersey went into lockdown on March 21st, I foolishly thought that I would get infinite amounts of writing done. During the day, I am the author acquisitions manager at IngramSpark and by night I like to write humorous personal non-fiction and romance novels. In my mind, I thought that the pandemic would give me a small reprieve from business as usual that included a very busy travel schedule.
I didn’t expect that business as usual would take on a whole new meaning.
As the publishing world began to screech to a halt with independent bookstores closing, publishers furloughing staff, Amazon focusing on essential items, and other printing plants closing, all of a sudden Ingram and the IngramSpark felt the burden, more than ever, to uphold our commitment to the publishing industry to keep it all humming. Needless to say, the writing really hasn’t happened.
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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.
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#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.
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#2- Direct to Reader Sales are the Future
Early on in the pandemic, both indie authors and publishers saw the benefit in direct-to-reader sales. Larger retailers became overtaxed with the influx of orders and shipping has been taking longer than the two days Amazon has spoiled us to expect. Why not sell directly to your fans?
There are plenty of great ways sell directly to readers.
Shopify and other services can plug into your social media.
Ingram has a great direct to consumer tool called Aer.io that is very easy to use.
There has been a lot of buzz around Bookshop.org, an online bookshop run by the American Booksellers Association.
Why the buzz about Bookshop.org?
10% of all proceeds from Bookshop.org sales are put in a pot and given to independent bookstores. With those stores closed now, this is a wonderful way to support your indie bookstore. They have raised $1.1 million dollars already! The real perk about Bookshop.org is that you can set up your own affiliate shop.
Early adoption of these tools has given indie authors and publishers personal relationships with their readerships and a whole new sales vertical to explore. That brings me to #3…
#3- Direct Engagement with Readers is Powerful
Selling directly to readers is the perfect way for indie authors and publisher to engage directly with their readers and create personal, lasting relationships with them. These relationships create super fans which in turn create an army of evangelists for their books.
Authors and publishers have also found that direct sales are an opportunity to capture valuable information about your reader like their email address. If a reader opts to give their email address, this provides the huge bonus opportunity for long term engagement in the form of email blasts and personal, targeted communication.
The more an author engages with their fans, the more lifelong readers they will capture.
PG notes that Ingram Spark is effectively a sort-of competitor of Kindle Direct Publishing. In PG’s stunningly personal opinion, KDP is probably the best way into Amazon. Ingram provides “connections” to Amazon, libraries, Barnes & Noble and indie bookstores. Whether those connections ever generate any meaningful sales is another question.
PG also notes that if an indie author wishes to qualify for the 70% royalty on ebooks under KDP Select (which includes Kindle Unlimited and the Kindle Owners Lending Library which provide additional ways to increase ebook royalty revenues), she/he will not be able to sell the same titles as ebooks via Ingram Spark. Adding new content and/or bonus content that doesn’t appear in the KDP ebook to an Ingram Spark ebook won’t fly if you want to stay in the 70% royalty tier on KDP Select.
Amazon will definitely bounce a book out of KDP Select if it discovers an author doing this sort of thing or otherwise violating the KDP Select Terms and Conditions. The same warning that applies to Ingram Spark and KDP Select also applies to other independent epublishing outlets like Smashwords.
As a general proposition, if an author wants to stay in KDP Select and try out Ingram Spark or another route to non-Amazon bookstores, PG strongly advises the author to carefully read the Terms and Conditions Governing KDP Select (URL for US terms) or an alternative version applicable to KDP Select Ts&Cs in her/his country of residence.
If an indie author wants a hardcover version of his/her book, Ingram a way to go because Amazon only offers ebook and POD paperback options for indie authors.
As usual, PG will remind one and all that he doesn’t provide legal advice via his comments on TPV. If you want to obtain legal advice, you will need to hire PG or another lawyer of your choice.
(PG is not quite certain how he got the drop-cap in the prior paragraph with his recently updated WordPress theme, but he likes the look and won’t try to figure out how to undo the giant A.)
No writer wants to sue a Hollywood studio. It’s expensive, it’s terrifying, and it’s emotionally exhausting You’ll be publicly called out as a crank, a liar, a money-grubber, a loser, an opportunist, and a troll. You’ll hear that age-old threat: you’ll never work in this town again.
And you’ll almost certainly lose.
In their article “Death of Copyright, The Sequel”, entertainment attorneys Steven Lowe and Daniel Lifschitz reviewed over fifty copyright infringement cases filed in the Ninth Circuit by writers against studios and networks between the years 1990 and 2010. Every single writer lost. Those fifty lawsuits represent just the tip of the iceberg; no doubt there are many other justifiably aggrieved writers who didn’t have the money to hire a lawyer, or the emotional stamina to charge into battle against a studio. As Reed Martin writes in his book about filmmaking, The Reel Truth:
One respected journalist who covers the film industry has described screenplay theft as such a regular occurrence – almost as rampant as file sharing – that it has become a sad rite of passage for aspiring screenwriters, “proof that they can write screenplays worth producing.”
Most writers who work in the industry understand that suing a studio, no matter how justified their lawsuit, is a losing proposition—and it’s the writer who almost always loses. Knowing this, why would any writer risk everything to charge into battle as David against Goliath?
I’ll tell you why: because we’re angry and refuse to let them get away with it. I know, because I’ve been there and done that. I’ve seen the dark side of Hollywood.
. . . .
My journey started on a joyous note. It was 1999 and I had just finished writing my space thriller novel Gravity, about a female medical doctor/astronaut who is stranded alone aboard the International Space Station after the rest of her crew is killed in a series of accidents. Sick and dying aboard ISS, she fights to survive, while on earth, her astronaut-husband desperately hunts for a way to reach her. Heavy on technology, with extensive details about orbital life, ISS, and shuttle operations, the novel took me two years to research and write. I compiled thousands of pages of notes, interviewed dozens of NASA sources, and made site visits to NASA facilities in Texas and Florida.
A mere week after I mailed the finished manuscript to my editor at Pocket Books, I received a baffling phone call from a Variety reporter asking for my reaction to the movie buzz about my novel Gravity. I had no idea what he was talking about because, as far as I knew, my manuscript was still on my editor’s desk. I later learned that “hot” new novels are sometimes sneaked out of publishers’ offices and quickly land in the hands of movie producers before they’re officially submitted.
Gravity was just such a “hot” new novel, and studios were already circling. New Line Cinema made a pre-emptive bid to buy the rights, and the seven-figure deal was splashed across the front page of Daily Variety:
New Line and Artists Management Group (the production company) view “Gravity”as a major event pic and look to move quickly to put the elements in place, with a release in either summer of 2000 or 2001. AMG will likely package the project with as many of the banner’s clients as possible, and Rick Yorn told Daily Variety that he expects to have most major above-the-line talent in place within the coming weeks.
It was one of those “pinch me I’m dreaming” moments in a writer’s career. Gravity would be a major event pic, and veteran screenwriter Michael Goldenberg (Contact) was hired to write the screenplay. The finished script was a faithful adaptation of my novel—perhaps too faithful, as my novel’s climax didn’t have a visually cinematic finish. The third act needed reworking, I was told, and until that happened, nothing could go forward.
Since I already had experience as a screenwriter (my original script “Adrift” aired as a CBS TV Movie of the Week in 1993) I decided to jump-start the stalled Gravity project by rewriting the last fourteen pages of Goldenberg’s script.
. . . .
In May 2000, Daily Variety reported that the script would be sent out to directors that week, with filming expected by the end of the year, but Gravity became mired in development. Months went by. Feature film rights passed (briefly) to Twentieth Century Fox, then bounced back to New Line. The project faded into oblivion.
In 2008, Warner Bros. acquired New Line in a takeover that “ended New Line’s 40 years as an independent studio.” While this was big news in the film industry, I wasn’t even aware of it because I was too busy writing books. “Rizzoli & Isles,” the television series based on my crime novels, was a smash success on TNT (it would go on to a seven-season run) and my novels were regularly hitting bestseller lists around the world. As far as I knew, my Gravity film project was dead and buried, and I didn’t give it another thought.
Until 2010, when fans began to email their congratulations about the upcoming Warner Bros. space movie Gravity, which they assumed was based on my novel.
The new movie would be directed by Alfonso Cuaron, and the original screenplay was written by Cuaron and his son Jonas. Online, I found a description of the plot:
The movie’s plot revolves around astronauts repairing the Hubble telescope who are hit with an avalanche of satellite junk. In a plot akin to “Cast Away,” the surviving astronaut must fight her way back to Earth, where she hopes to reunite with her daughter.
I felt a twinge of nausea which only worsened when I found a more detailed description of the plot and learned that Cuaron’s heroine ends up stranded aboard the International Space Station. I knew of no connection between Cuaron and my Gravity project ten years earlier, but the shooting down of a satellite, the debris destroying ISS, the female astronaut desperate to reunite with a loved one on earth, the series of Titanic-like catastrophes leaving her stranded aboard ISS, and the identical title added up to a whopping series of coincidences. True, Cuaron’s tale had none of my novel’s medical details or my long lead-up to the crisis, but there was enough there to give me a jolting sense of familiarity. It’s as if the screenwriters threw out the first three-quarters of my novel and based their entire film on my final chapters.
Had Cuaron heard about my story and reworked it into his script?
. . . .
In October 2013, Cuaron’s Gravity, produced by Warner Bros., was released to great fanfare and went on to gross more than seven hundred million dollars at the box office. Sitting in the theater wearing 3-D glasses, I was awed by the movie’s spectacular visual effects, but that sick feeling of familiarity was back. The satellite debris destroying ISS—that was the scene I’d written in my re-write of the third act. The Sandra Bullock character who worked eighteen-hour shifts in a hospital—wasn’t that the MD astronaut from my novel? The script had changed since the earlier descriptions in the press—the heroine’s daughter was now dead—but I could still see the bones of my story on that movie screen.
Days later, while I was speaking at an Indiana library event, readers again congratulated me on “my” movie.
. . . .
New York, my literary agent gets a startling phone call, from a Reliable Source who’d worked with the original production team that tried to develop my Gravity into a movie back in 1999-2000. The Reliable Source had a bombshell piece of information to share: Back when my Gravity movie was still in active development, a director had been attached to the film.
That director was Alfonso Cuaron.
“Now I think you need a lawyer,” my agent said.
. . . .
The Reliable Source signed a sworn affidavit and told us where we could find the supporting documents should we go to discovery, but I was still not certain I wanted to sue. My attorney advised me that if I did sue, it could not be for copyright infringement, because of one simple fact: I did not own the film rights. I had sold those rights to New Line Cinema in 1999, and because Warner Bros. had acquired New Line in 2008, Warner Bros. was now in control of my Gravity film rights. Warner Bros. held the copyright, so they had the legal right to make the movie.
“If you do sue them,” he told me, “It will be for breach of contract.”
. . . .
To prevail in a copyright infringement lawsuit, a writer must demonstrate there is substantial similarity between his creation and the defendant’s, and in court this standard proves to be almost impossible to meet. If a producer steals the plot of a novel, changes the character’s names and locations and re-orders a few scenes, those changes alone may be enough to make it impossible for the novelist to win a copyright infringement lawsuit.
But “Buchwald vs. Paramount” established that in breach-of-contract lawsuits, a different standard applies. If a contract exists between the writer and the studio, and if the movie shares only a material element or is merely inspired by the original work, then the movie is considered “based upon” that work—even if adaptation has drastically changed the story. This explains why so many movies adapted from novels may end up wildly different from the original stories, yet retain the “based upon” label.
. . . .
My contract also had an assignment provision (something every film-rights contract should include):
ASSIGNMENT: Owner agrees that Company may assign this Agreement, in whole or in part, at any time to any person, corporation, or other entity, provided that unless this assignment is to a so-called major or mini-major production company or distributor or similarly financially responsible party or purchaser of substantially all of Company’s stocks or assets which assumes in writing all of Company’s obligations, Company shall remain secondarily liable for all obligations to Owner hereunder.
In addition, it included a Continuing Guaranty, requiring a “full and faithful performance” of the studio’s obligations to me, even if film rights to Gravity passed to another studio:
No assignment permitted by the Agreement will relieve Guarantor of its obligations to (Author) with respect to Guaranteed Obligations.
No matter where my Gravity film rights ended up, those clauses ensured that what was promised to me in the contract would be delivered. What I coveted most in the contract was the “based upon” credit. Like every novelist, I want to be recognized for my work—and I want to sell books. If my novel Gravity had been re-released as an official movie tie-in book, how many hundreds of thousands, even millions, of additional copies could I have sold around the world?
. . . .
Then I came across an article about how the Cuarons had written their screenplay.
They regrouped in the elder Cuaron’s London home one afternoon and began talking about the theme of adversity, about knowing when to fight and when to give up, and the theme of rebirth. And two images drove them: an astronaut spinning into the void and someone getting up and walking away. “Gravity was a metaphor, the force that keeps pulling us back to life,” says Jonas Cuaron.
A first draft was written in three weeks.
I thought about the two years of full-time research and writing I’d devoted to Gravity. I thought of my obsessive attention to details about ISS, the shuttle, EVAs, astronaut training, NASA lingo, aerospace medicine, and everyday life in orbit. I thought about how hard I’d worked to describe a scenario so accurately that even a NASA engineer would not find fault. And here the clever Cuarons had gone from “image of astronaut spinning in space” to a finished screenplay in a mere three weeks.
That’s when I got angry.
. . . .
A jury trial is what every plaintiff hopes for. And it’s what a studio will try to avoid at all costs.
“The best scenario is for this to be settled out of court,” my lawyer said. “But let me warn you now, they will never give you a based-upon credit, because that would be a public slap in Cuaron’s face. They won’t allow that.”
“Whatever happens,” I said, “I want to be able to talk about this. I refuse to sign any nondisclosure agreement.”
I’m sure he must have sighed at that point, because nondisclosure agreements are part of most Hollywood settlements. Lawsuits that make a big splash in the newspapers will suddenly vanish from sight, never to be heard of again, because plaintiffs are paid to shut up, or threatened with financial penalties if they don’t.
Warner Bros. attorneys quietly inquired if I was willing to go to mediation. I said I was. Perhaps this will be handled in a civilized manner after all, I thought. Perhaps they understood that money wasn’t even necessary, just acknowledgment of my grievance. Judge Margaret M. Morrow was assigned to my case, and I hoped she could convince us all to sit down and talk together.
Instead, Warner Bros. hired outside law firm O’Melveny & Myers, known for its ruthless defense of studios, to oppose me. “This means they intend to fight you every step of the way,” my lawyer warned. Alfonso Cuaron’s reputation was at stake and the studio was gong to protect him at all costs. Which meant I had to be destroyed.
Maybe a bit different than the usual fare on TPV, but PG hadn’t thought about the impact of Force Majeure clauses may have on a variety of different industries, including the book business.
For the record, PG doesn’t ever remember seeing a Force Majeure clause in an agreement between an author and a publisher.
I remember learning about Force Majeure in law school as a 1L. It seemed like such a fringe topic that I instinctively pushed it to the back of my mind as a contract provision that must be rarely triggered in real life and therefore would likely not be tested. A Force Majeure clause is a contract provision that absolves both parties from performing under the contract because an event that is beyond either of their control (e.g. a natural disaster or a terrorist attack) has occurred and made performance under the contract “inadvisable, commercially impracticable, illegal, or impossible.” It is generally true that outside of a natural disaster like a hurricane, tornado, tsunami, earthquake, forest fire, or other natural disaster Force Majeure is rarely talked about.
Now, Force Majeure is front and center as a significant portion of America’s businesses are anxiously wondering if a number of crucial contracts that they entered into can be voided as a result of the Coronavirus. There is no telling exactly how much money could be lost by American businesses because of Force Majeure claims, but it can safely be assumed that the potential exposure figure is well into the billions, and it will certainly be the subject of litigation proceedings for a significant time to come.
To make matters worse, not all Force Majeure claims are triggered by the same events and some events that seem sufficiently out of a party’s control, like insolvency, may not trigger Force Majeure. For example, in the state of New York, if performance under the contract is only impossible because it would push an entity to bankruptcy performance will still not be excused under Force Majeure (via 407 E. 61st Garage, Inc. v. Savoy Fifth Ave. Corp.). Although it is helpful to look to the courts for guidance regarding what event may warrant a Force Majeure claim, it is often not as helpful as looking to the specific language of the contract and discovering whether or not your contract even contains a Force Majeure clause and if there are any qualifying events already enumerated by it.
Finding out if you have one of these clauses and, if you do have one, what exactly is outlined in it is certainly not easy since companies may have hundreds or thousands of contracts that they are actively a party to. For a significant portion of companies, manually reviewing (even with the help of Ctrl+F) all of their contracts to determine their potential Force Majeure exposure is a nearly impossible task that would take days.
In response to the Coronavirus crisis, AI is now being used in legal departments to search through all the contracts that they are a party to for Force Majeure clauses and then pulls the exact language of the clause.
If you’re interested in what a Force Majeure clause looks like, here’s an example:
Neither party shall be liable for any costs or damages due to delay or nonperformance under this Data Access Services Addendum arising out of any cause or event beyond such party’s control, including, without limitation, cessation of services hereunder or any damages resulting therefrom to the other party as a result of work stoppage, power or other mechanical failure, computer virus, natural disaster, governmental action, or communication disruption.
The sovereign immunity refers to the fact that the government cannot be sued without its consent.
. . . .
Sovereign immunity was derived from British common law doctrine based on the idea that the King could do no wrong. In the United States, sovereign immunity typically applies to the federal government and state government, but not to municipalities. Federal and state governments, however, have the ability to waive their sovereign immunity. The federal government did this when it passed the Federal Tort Claims Act, which waived federal immunity for numerous types of torts claims.
. . . .
When determining whether a citizen may sue a state actor (someone acting on behalf of the state: i.e. a state worker), courts will typically use one (1) of four (4) tests:
Governmental v proprietary function test (Was the actor functioning in a governmental fashion or a proprietary fashion?)
If the actor was performing a proprietary function (i.e. acting for financial gain for itself or its citizens; doing something that is not historically a governmental function; doing something that can be performed by a private corporation/contractor), then the actor is subject to liability
If the actor was performing a governmental function (i.e. acting for the general public; doing something ordained by legislature; performing a historic gov function), then the actor is not subject to liability
Ministerial/operational v. discretionary functions/acts test (Was the actor performing a ministerial/operational task or a discretionary task?)
If the actor is performing a ministerial/operational action, then there is not immunity.
If the actor is performing a discretionary action, then there is immunity.
Planning v implementational (Was the actor planning an action or implementing an action?)
If the actor’s planning of policy results in harm, then there is immunity
If the harm happens due to the government’s implementation of the plan, then there is not immunity
Non-justiciable v. justiciable
If the action is justiciable under regular tort principles, then there is no immunity. If the issue is not justiciable under regular tort principles, then there is immunity.
And, since you were curious about what justiciabile means:
Justiciability refers to the types of matters that a court can adjudicate. If a case is “nonjusticiable,” then the court cannot hear it. Typically to be justiciable, the court must not be offering an advisory opinion, the plaintiff must have standing, and the issues must be ripe but neither moot nor violative of the political question doctrine. Typically, these issues are all up to the discreion of the court which is adjudicating the issue.
Disclaimer: I am not a lawyer or CPA. So I’m not in a position to give individualized and specific legal or tax advice. This article is meant to give general guidance on considerations. However, it would make sense to consult a lawyer and CPA before acting on this general guidance, because benefits and drawbacks will change from state to state.
With that out of the way, this is one of those questions I receive every so often from writers. In most cases, the writers are not earning a significant income from their writing yet, but I get it. I’m a writer too, and I feel like writers are especially gifted at dreaming up possibilities—both good and bad.
. . . .
Reasons I’ve heard writers give for incorporating or forming an LLC usually have to do with protection. Some people have heard that incorporating as an S Corp or creating an LLC will protect them from lawsuits and provide tax benefits.
. . . .
One reason writers give for considering incorporating or creating an LLC is to put a wall between their freelance business and personal assets. On its surface, it sounds like a good reason. However, the most common liability for writers is different than other businesses that have employees, investments in production, and other business costs.
The most common liabilities for writers are tied to possible lawsuits for defamation, privacy, or infringement. In all those cases, plaintiffs would likely file suits against both the company and the writer. This is why most publishing contracts have language to cover them against the actions of their writers.
The good news is that you’re not completely helpless if this is a concern for you. Writers can look into Business Liability and/or Media Liability insurance policies. If you go this route, be sure that your policy covers defamation, privacy, and infringement claims.
Get tax advice from a CPA or qualified tax accountant, not another writer. Some writers won’t gain any tax benefit from a corporation or LLC (Limited Liability Companies – they are definitely not the same when it comes to taxes) while other writers will.
Is the writer married? Does the spouse have an income?
Does either the writer or the spouse own assets not related to writing?
Does the author live in a community property state?
Are inheritance or estate taxes going to be involved if the author dies while married? Unmarried?
Get legal advice from a lawyer, not another writer.
Laws relating to defamation, privacy, or infringement claims vary, sometimes substantially, from state to state.
There are very good reasons that many corporations, including most very large corporations, incorporate in Delaware rather than the state in which most of the corporation’s assets exist. (About two-thirds of Fortune 500 companies are Delaware corporations.)
There are very good reasons why many LLCs (and an increasing number of closely-held corporations) are formed in Nevada even though the parties creating them and the assets of these entities are outside of Nevada.
Laws relating to the types of third-party claims from which an LLC or corporation may shield a shareholder of a corporation or owner of an LLC interest vary from state to state.
More than one lawsuit has been avoided or won because of legal speed bumps lying between the claimant and an award of damages.
As an example, if a plaintiff lives in Illinois and the defendant/author contends a Nevada LLC owns the copyright to the book involved and the LLC files a proceeding in Nevada against the plaintiff claiming improper actions on the part of the Illinois plaintiff and that Nevada, not Illinois, is the only proper place to pursue the litigation of the claims of the LLC, at a minimum, it is almost certain the plaintiff will need to hire a Nevada attorney to respond.
There are many, many other potential speed bumps between a complaint and cash in the plaintiff’s pocket that a determined author and competent counsel can place create. This is one reason why many litigation attorneys require a substantial up-front payment from an individual plaintiff and will not take a case on a contingency fee basis unless there is an insurance company or some other deep pocket who will pay if the judgment goes against them. You can assume that 99.999% of the attorneys who advertise on television fall into that category.
Finally, PG notes that he is a member of The State Bar of California and claims no legal or professional expertise with respect to the tax laws of any government entity nor the laws of Illinois, Delaware or Nevada. If you wish to understand tax laws, you need to hire a competent accountant or tax attorney and if you wish to understand the laws, including the corporation and LLC laws and the laws and court rules relating to litigation in a state, you need to hire a competent attorney who is admitted to practice law in that state.
UPDATE: PG didn’t mention the suggestion in the OP that an author consider acquiring Business Liability and/or Media Liability insurance. PG will note that such policies are very complex documents that include provisions that limit the policy’s coverage in various ways and will almost certainly include provisions for a large deductible that the author must pay.
PG is not opposed to appropriate insurance (and has the lawyer’s version of such insurance himself), it may not be easy for most authors to understand the protection that the policy provides and what potential losses the policy will cover and what it will not cover. Additionally, such insurance will be in force for a set period of time and renewal will require payment of another premium, even if the author does not plan to write any additional books. Maintaining the existence of a corporation or LLC may well be less expensive than premiums on such insurance. Note that nothing precludes an author from doing both – corporation/LLC plus liability insurance.
PG will also note that liability coverage connected to insurance on real estate or automobiles you may own will not cover claims made against an author relating to the author’s literary works.
A rush of misguided trademark applications for “COVID” and “coronavirus” has already begun, replaying a bizarre legal phenomenon in particularly tasteless fashion.
Trending terms from news and pop culture are routinely followed by a flood of applications at the U.S. Patent and Trademark Office, filed by opportunistic applicants who think they can lock down exclusive rights on something that’s captured the national conversation.
Only this time, it’s not a viral presidential typo or a Super Bowl moment — it’s an ongoing pandemic that threatens millions and has ground daily life to a halt around the globe.
“This isn’t about lightweight entertainment,” said Julia A. Matheson, a trademark attorney at Hogan Lovells. “It’s about people’s lives.”
As of Wednesday, more than a dozen applications have been filed at the USPTO seeking to register trademarks involving “COVID” or “coronavirus.”
. . . .
For trademark lawyers, the pattern is predictable.
Back in 2017, when President Donald Trump accidentally tweeted the word “Covfefe,” it was followed by 42 separate attempts to register it as a trademark. After the Philadelphia Eagles ran the famous “Philly Special” trick play in Super Bowl LII, 10 such applications were filed.
Just three days after the Boston Marathon bombing in April 2013, four applications had already been filed to register “Boston Strong” — the rallying cry for the city in the wake of the attack. Eventually, seven more were filed.
“Depending upon how you look at it, it reflects the best and worst of the capitalist ethos and desire to get rich quick from widespread trending events,” Matheson said.
It also reflects a deep misunderstanding of how trademark law works.
For starters, U.S. trademark law doesn’t simply reward whoever is quickest to file a piece of paper with the government. Applicants must show that they have a bona fide intent to use the term on a particular set of goods and services — something most “coronavirus” applicants are unlikely to do.
“It’s a get rich quick scheme, but like most of these schemes, they fail,” said Eric Ball, a trademark attorney at Fenwick & West LLP. “Trademark law doesn’t support the warehousing of marks. You have to actually use the marks to get rights.”
One other small problem: Terms like “COVID” are, for the most part, incapable of functioning as trademarks in the first place, made so by the very attribute that attracted the applicants.
By its nature, a trending term has been widely used by countless third parties. How, then, can it somehow uniquely identify an applicant as a source of goods?
The ABA Journal is the flagship magazine for members of the American Bar Association. With a circulation around 400,000, it’s considered the magazine for lawyers and the legal profession. As such, it’s a very competitive market with a reputation of paying competitive rates to freelancers.
The editors say, “The ABA is the largest voluntary professional association in the world. With more than 400,000 members, the ABA provides law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public.”
What They’re Looking For
ABA Journal does not review unsolicited manuscripts. Rather, the editors want freelancers to query with their resumé and published clips. They expect articles to include multiple sources and opposing points of view.
The editors say, “The ABA Journal considers queries from professional writers or from potential sources who wish to contact us regarding subjects that might be of interest to our readers.”
Estimated length and payment are discussed upon assignment.
Many years ago when he practiced a much different type of law than he does now, PG had a regular monthly column in The ABA Journal, so he became very familiar with the topics that would interest the publication.
A few preliminary points for those who are not attorneys:
The American Bar Association is a voluntary organization. Unlike the state bar associations which attorneys are required to join (and pay dues to) for the privilege of practicing law, nobody is required to be a member of the ABA.
Thus, the ABA is looking for stories that will interest both its members and non-members who may be wondering if they should join.
Non-members can see many (maybe all?) parts of The ABAJ online – https://www.abajournal.com/ so you can get an idea of the types of stories that have been publishing recently.
Like every other bar association, mandatory or voluntary, the ABA charges dues ranging from $75-$450 per year, depending upon how many years an attorney has been in practice. The amount of the dues payment has been a sore point for solo and small firm attorneys since forever. The ABA dues payment is on top of the mandatory payment required from the state bar and the combination can go over $1,000 per year.
Among solo and small firm attorneys, it is not unusual to find those who believe the ABA is relevant for attorneys in large firms and specialized practices and doesn’t have much to offer those who don’t meet that description.
One of the reasons PG was offered a regular column in ancient days was because, at that time, he was in solo practice in a small town, so he didn’t fit the stereotype. Additionally, PG had learned a lot about using computers in his own practice which was not understood by the average lawyer in either a large or small firm.
So, if PG were putting together a pitch for a story to the ABAJ today, he would look for a story about an attorney who didn’t work for a large firm in a large city and who was doing something different than typical lawyers were doing.
Bar associations of all types love to tout the work attorneys do without being paid, pro bono publico (Latin: “for the public good”) usually shortened to pro bono.
Some state bar associations require that attorneys perform XX hours of pro bono work each year or give them credit for those hours against state-mandated Continuing Legal Education (which usually costs money) requirements that must be reported to the state bar periodically.
A story about a small-town lawyer who represented an indigent juvenile repeat offender, got the kid get out of juvenile detention and helped her to get into Harvard would be close to ideal.
PG has no idea about how much The ABA Journal pays for articles these days. In ancient times, he was definitely satisfied with the payment he received from them each month.
Another area that seems to be evergreen for ABAJ articles is how lawyers use computer or other technologies in their practices. For as long as PG has known anything about computers in law offices, a significant portion of attorneys have not been very good with technology. Perhaps too many humanities majors realize they’ll never make a living in their chosen field and apply to law school.
The ABA has hosted a successful annual legal geekfest called ABA Techshow for a very long time (in tech years).
Each year, great flocks of geek attorneys circle O’Hare Airport and descend upon an unsuspecting convention hotel in downtown Chicago. They call to each other and the leaders display their latest tech accomplishments for competitors and compatriates to admire.
(During PG’s time, there was no widespread mating that occurred at Techshow, but he can’t speak for today.)
Techshow provides a fertile field for finding stories about attorneys doing unusual things with their computers, tablets, smartphones, etc., in court, in their offices and on the road.
[Author Dr. Daniela] Simone assesses how UK law defines shared authorship and how authorship is then allocated among creative collaborators. The book confirms copyright’s reputation as a legal framework ill-suited for collaborative creative processes, arguing that it prefers single authorship (and ownership). As a result, rights tend to be concentrated in singular, rather than, multiple, hands. Simone explains the ‘why’ for copyright’s bias for single authorship and where such bias might come from. Simone then challenges this bias by offering an alternative read on copyright and collective authorship. The book opens with a description of sole versus joint-authorship under UK law (Chapter 2). Simone’s analysis of case law on joint authorship sheds light on the oddities and incoherencies of the doctrine.
. . . .
(1) Joint-authors are held to a higher standard. In comparing the tests of single authorship with that of joint-authorship, Simone reveals that UK courts hold parties to a higher standard when they seek ‘joint-authorship’, because they must demonstrate a more ‘significant’ or ‘substantial’ contribution to the work. This difference in threshold has no statutory basis, as the Copyright, Designs and Patents Act 1988 (CDPA) is neutral on this question (as was the text of the previous statutory formulations, e.g. here). (2) The test for joint-authorship is built upon a small number of highly fact-sensitive cases. There is scant precedent on joint-authorship to turn to for guidance. The few case law authorities that we do have are difficult to apply because each case involves different types of creative work, creative processes and collaboration patterns. (3) The joint-authorship doctrine is ‘polluted’ by concerns about shared ownership. Judicial discussion on the attribution of joint authorship often address whether it would be practical for the ownership of the work to be shared between multiple parties. This approach, Simone argues, conflates two different concepts of copyright (authorship and ownership), which copyright law takes such care to distinguish. (4) The test for joint-authorship breaches the principle of aesthetic neutrality. It is a well-established principle of copyright law that copyright should apply regardless of the work’s aesthetics, artistic quality or genre. Judges keeping to this principle in the context of joint-authorship claims have complicated this jurisprudence. This principle has courts avoiding language that might refer to the aesthetics, genre or quality of the work. This is especially true when judges assess the evidence submitted by the parties on the creative process and their relative contribution to the work. But courts end up producing open-ended, vague, abstract, and inconsistent language by being overly cautious on this point.
. . . .
Simone’s chief recommendation is to close this gap between the law and social norms on authorship and credits so that collective authorship enjoys its proper place within the framework of copyright. The author proposes to do so by importing into copyright law some of the more nuanced field-specific practices according to which collaborators negotiate authorship. Simone suggests that this should bring copyright into line with the expectations of creators on authorship and credits.
. . . .
These conclusions come after road-testing the joint-authorship doctrine on three types of collective authorship: Wikipedia entries (Chapter 4), Australian Indigenous Art (Chapter 5) and films (Chapter 6). The use of these three case studies in this way keeps Simone’s critique of the joint authorship doctrine rooted in concrete examples.
PG suggests that a takeaway for authors is that, if you are writing a book with a co-author, you should have a signed contract that, among other things, specifies how authorship will be handled for copyright and book credit purposes.
As with a great many things legal, problems rear their ugly heads in this area of human relationships when money (often, but not always, significant amounts of money) is involved. On occasion, pride works almost as well as money.
The EPO has published its decision setting out the reasons for its recent refusal of two European patent applications in which an AI system was designated as the inventor.
Filed by an individual in autumn 2018, the applications EP 18 275 163 and EP 18 275 174 were refused by the EPO following oral proceedings with the applicant in November 2019, on the grounds that they do not meet the legal requirement of the European Patent Convention (EPC) that an inventor designated in the application has to be a human being, and not a machine.
In both applications a machine called “DABUS”, which is described as “a type of connectionist artificial intelligence”, is named as the inventor. The applicant stated that he had acquired the right to the European patent from the inventor by being its successor in title, arguing that as the machine’s owner, he was assigned any intellectual property rights created by this machine.
In its decisions, the EPO considered that the interpretation of the legal framework of the European patent system leads to the conclusion that the inventor designated in a European patent must be a natural person. The Office further noted that the understanding of the term inventor as referring to a natural person appears to be an internationally applicable standard, and that various national courts have issued decisions to this effect.
Moreover, the designation of an inventor is mandatory as it bears a series of legal consequences, notably to ensure that the designated inventor is the legitimate one and that he or she can benefit from rights linked to this status. To exercise these rights, the inventor must have a legal personality that AI systems or machines do not enjoy.
Finally, giving a name to a machine is not sufficient to satisfy the requirements of the EPC mentioned above.
The thought randomly passed through PG’s morning mind while he was reading the OP.
Typically patent applications require some sort of attestation to the effect that the filer is the inventor and the facts in the application are true.
Here is the attestation language from a USPTO form for a Utility or Design application:
The above-identified application was made or authorized to be made by me.
I believe that I am the original inventor or an original joint inventor of a claimed invention in the application.
I hereby acknowledge that any willful false statement made in this declaration is punishable under 18 U.S.C. 1001 by fine or imprisonment of not more than five (5) years, or both.
Since the original applications in the OP named DABUS as the inventor, will a subsequent application signed by humans associated with DABUS be valid if someone has already attested that DABUS is the author and not the conniving humans who are trying to claim credit and rights to something they didn’t create?
In December, a jury ruled that US-based internet service provider Cox Communications was liable for the infringement of over 10,000 music copyrights by its users. The company was ordered to pay Universal, Sony and Warner a whopping $1bn in collective damages – equivalent to just over $99,000 for each of the 10,017 works infringed.
. . . .
Cooper noted Warner’s satisfaction with the ruling, which he pointed out was the fifth largest U.S jury award in the whole of 2019, and which, he said, “clearly demonstrates that juries understand piracy is not okay”.
Cooper noted that WMG and/or the record industry had also brought similar cases against four other ISPs: Charter, Grande, RCN and Bright House, “all of which should proceed to trial within the next 12 to 18 months”.
. . . .
Cox Communications just lodged a fierce legal motion challenging the $1bn damages verdict – calling it “unprecedented”, and suggesting that the amount of money it’s being told to pay is “grossly excessive”.
According to a Memorandum filed Friday (January 31) by Cox and obtained by MBW, the company calls for one of two new outcomes – either a remittitur (i.e. a reduction in the amount of damages awarded) or an entirely new trial.
The Memorandum, filed with the Eastern District of Virginia Court, argues: “The $1 billion award is a miscarriage of justice; it is shockingly excessive and unlawfully punitive, and should be remitted or result in a new trial.”
Cox adds: “The award of $1 billion appears to be the largest award of statutory copyright damages in history. This is not by a matter of degree. It is the largest such award by a factor of eight.
. . . .
“It is the largest such award for secondary copyright infringement by a factor of 40. It is the largest jury verdict in the history of this District by a factor of more than 30.
“It is by any measure a shocking verdict, wholly divorced from any possible injury to Plaintiffs, any benefit to Cox, or any conceivable deterrent purpose.”
Cox argues that the $1bn damages verdict “exceeds the aggregate dollar amount of every statutory damages award rendered in the years 2009-2016 by more than four hundred million dollars”.
The firm cites what it calls the three previous biggest copyright statutory damages awards in the States: (i) Atlantic Recording v. Media Group Inc in 2002 ($136m); (ii) Disney Enters., Inc. v. Vidangel, Inc in 2019 ($62.4m); and (iii) UMG Recordings, Inc. v. MP3.Com, Inc in 2000 ($53.4m).
Cox posits that all three of these verdicts “were rendered against direct infringers — people who actually misappropriated the copyrighted material for their own use and profit”. In most cases, it says, these infringers “were conducting businesses based upon copyright infringement” making them “adjudicated pirates”.
. . . .
As an ISP, Cox argues that such an accusation does not apply to its business, suggesting that rather than being a “direct infringer”, it should instead be classified as a “secondary infringer” in the December ruling.
Cox then points out that the largest statutory damages ever awarded against a secondary infringer happens to be against itself – $25m in BMG Rights Mgmt. LLC v. Cox Communications, Inc. (2015).
“The $1 billion award thus appears to be the largest ever against a [secondary] infringer situated like Cox — by a factor of 40,” it says.
The higher education system is a unique type of organisation with its own way of motivating productivity in its scholarly workforce. It doesn’t need to compel professors to produce scholarship because they choose to do it on their own. This is in contrast to the standard structure for motivating employees in bureaucratic organisations, which relies on manipulating two incentives: fear and greed. Fear works by holding the threat of firing over the heads of workers in order to ensure that they stay in line: Do it my way or you’re out of here. Greed works by holding the prospect of pay increases and promotions in front of workers in order to encourage them to exhibit the work behaviours that will bring these rewards: Do it my way and you’ll get what’s yours.
Yes, in the United States contingent faculty can be fired at any time, and permanent faculty can be fired at the point of tenure. But, once tenured, there’s little other than criminal conduct or gross negligence that can threaten your job. And yes, most colleges do have merit pay systems that reward more productive faculty with higher salaries. But the differences are small – between the standard 3 per cent raise and a 4 per cent merit increase. Even though gaining consistent above-average raises can compound annually into substantial differences over time, the immediate rewards are pretty underwhelming. Not the kind of incentive that would motivate a major expenditure of effort in a given year – such as the kind that operates on Wall Street, where earning a million-dollar bonus is a real possibility. Academic administrators – chairs, deans, presidents – just don’t have this kind of power over faculty. It’s why we refer to academic leadership as an exercise in herding cats. Deans can ask you to do something, but they really can’t make you do it.
. . . .
If the usual extrinsic incentives of fear and greed don’t apply to academics, then what does motivate them to be productive scholars? One factor, of course, is that this population is highly self-selected. People don’t become professors in order to gain power and money. They enter the role primarily because of a deep passion for a particular field of study. They find that scholarship is a mode of work that is intrinsically satisfying. It’s more a vocation than a job. And these elements tend to be pervasive in most of the world’s universities.
But I want to focus on an additional powerful motivation that drives academics, one that we don’t talk about very much. Once launched into an academic career, faculty members find their scholarly efforts spurred on by more than a love of the work. We in academia are motivated by a lust for glory.
We want to be recognised for our academic accomplishments by earning our own little pieces of fame. So we work assiduously to accumulate a set of merit badges over the course of our careers, which we then proudly display on our CVs. This situation is particularly pervasive in the US system of higher education, which is organised more by the market than by the state. Market systems are especially prone to the accumulation of distinctions that define your position in the hierarchy. But European and other scholars are also engaged in a race to pick up honours and add lines to their CVs. It’s the universal obsession of the scholarly profession.
. . . .
At the very pinnacle of the structure of merit badges is, of course, the Nobel Prize. A nice thought, but what are the odds? Fortunately, other academic honours are a lot more attainable. And attain them we do.
Take one prominent case in point: the endowed chair. A named professorship is a very big deal in the academic status order, a (relatively) scarce honour that supposedly demonstrates to peers that you’re a scholar of high accomplishment. It does involve money, but the chair-holder often sees little of it. A donor provides an endowment for the chair, which pays your salary and benefits, thus taking these expenses out of the operating budget – a big plus for the department, which saves a lot of money in the deal. And some chairs bring with them extra money that goes to the faculty member to pay for research expenses and travel.
But more often than not, the chair brings the occupant nothing at all but an honorific title, which you can add to your signature: the Joe Doakes Professor of Whatever. Once these chairs are in existence as permanent endowments, they never go away; instead they circulate among senior faculty. You hold the chair until you retire, and then it goes to someone else. In my own school, Stanford University, when the title passes to a new faculty member, that person receives an actual chair – one of those uncomfortable black wooden university armchairs bearing the school logo. On the back is a brass plaque announcing that ‘[Your Name] is the Joe Doakes Professor’. When you retire, they take away the title and leave you the physical chair. That’s it. It sounds like a joke – all you get to keep is this unusable piece of furniture – but it’s not. And faculty will kill to get this kind of honour.
This being the case, the academic profession requires a wide array of other forms of recognition that are more easily attainable and that you can accumulate the way you can collect Fabergé eggs. And they’re about as useful. Let us count the kinds of merit badges that are within the reach of faculty:
publication in high-impact journals and prestigious university presses;
membership on review committees for awards and fellowships;
membership on editorial boards of journals;
officers in professional organisations, which conveniently rotate on an annual basis and thus increase accessibility (in small societies, nearly everyone gets a chance to be president);
administrative positions in your home institution;
a large number of awards of all kinds – for teaching, advising, public service, professional service, and so on: the possibilities are endless;
awards that particularly proliferate in the zone of scholarly accomplishment – best article/book of the year in a particular subfield by a senior/junior scholar; early career/lifetime-career achievement; and so on.
Each of these honours tells the academic world that you are the member of a purportedly exclusive club. At annual meetings of professional organisations, you can attach brightly coloured ribbons to your name tag that tell everyone you’re an officer or fellow of that organisation, like the badges that adorn military dress uniforms. As in the military, you can never accumulate too many of these academic honours.
PG will note that the same pattern applies in U.S. law schools. As with other academic departments, the ability to actually teach well tends to be subsidiary to the publishing/professional organization elements of status.
That said, it’s rare for law school professors to be active in the interest sections of The American Bar Association and various state bars.
For a twenty-year period during which he practiced retail law, PG was actively involved in the ABA and his state bar association. Generally speaking, the activities of those associations were characterized by entertaining presentations, talks and discussion. As PG has mentioned before, a lawyer friend once told him that the friend could walk into any third-grade classroom and identify future lawyers because they never stopped talking.
As one might expect, some, but not all of the most engaging and entertaining speakers were involved in litigation practices that meant they spent a lot of time in court talking to judges and juries. On the other hand, patent and tax lawyers (with a small handful of exceptions) tended to be pretty dry.
On a couple of occasions, PG’s ABA responsibilities required him to attend a meeting of a law school professors’ organization. They were dull as dishwater.
From The Journal of Intellectual Property Law & Practice:
In Western culture, one of the earliest myths dealing with what would subsequently become a literary topos is the one concerning Narcissus. Narcissus was known for both his great beauty and the disdain he showed to those who loved him. In the version of the myth as told by Ovid, Narcissus’s behaviour (particularly towards Echo) prompted Nemesis, the goddess of revenge, to punish him by luring him to a pool. There, Narcissus saw his own image reflected in the water and fell in love with it, without realizing that it was just his own reflection. Unable to fulfil his love, Narcissus eventually melted away from the fire of passion burning inside him.
If we now move away from the realm of myth to that of law, a similar feeling—of attraction and yet unfulfillment—seems to be present when we review the type of legal protection available to one’s own image. In particular, it seems that this feeling is experienced where no self-standing image rights protection is available. In countries of this kind, in fact, different tools can be employed to repress unauthorized third-party uses of one’s own likeness, image, distinctive features, etc. Yet, none of them – even when combined together – seems to allow achieving the same results (and with the same apparent simplicity) that, instead, image rights as (predominantly) an expression of one’s own personality and identity provide.
The contributions that we host in this first special image rights issue move from, indeed, the attractiveness of the idea that the law should protect against the misappropriation and misuse of one’s own image. Yet, they also share a sense of dissatisfaction with the status quo.
. . . .
Any change, however, would need to be made, first, in a context in which several conflicting rights and interests are at issue, including third-party artistic and commercial freedom of expression (so that any intervention would need to be ‘surgical’ in both scope and objective). Second, as the articles on, e.g. deepfakes and revenge porn show, any such change would require considerations of different areas of the law and doctrines, as well as fast-paced technological developments. In a field, that of image rights, which puzzlingly remains substantially unharmonized at the international and EU levels, the challenges that, in particular, the latter pose show the need for effective enforcement tools and responses that, due to the very nature of such challenges, will also likely need to be increasingly transnational.Our contributions allow us to travel from the United Kingdom to California, to consider EU, US and Russian laws, to appreciate the interplay between technological, public policy and legal issues, to review image rights in relation to street photography, sexual images and deepfakes.
. . . .
[Analysis of a decision by an Italian court]
The Court of First Instance of Turin held that Audrey Hepburn’s image rights had been violated due to the unauthorized use and exploitation of her likeness for commercial purposes.
. . . .
The judgment considers the two fundamental provisions concerning image rights: Article 10 of the Civil Code and Article 96 of Law No 633/1941 (the Italian Copyright Act). The former protects image rights by solely describing the behaviour prohibited by law, yet without positively defining the concept of image or image right. In fact, the provision laconically states that ‘if the image of a person or his/her parents, spouse or children has been exhibited or published outside of the cases in which said exhibit or publication is allowed by law or [it has been exhibited or published] with prejudice to the decorum or reputation of the person himself or of the aforementioned parties, at the request of the interested party the judicial authority may order that the abuse is ceased, save for compensation for damages’(author’s own translation).
. . . .
It follows that the consent of the right holder is essential for the use of one’s own image or likeness, unless one of the exceptions provided by Article 97 applies. Notably, consent is not required ‘when the reproduction of the image [of a person] is justified by the notoriety or the public office covered by said person, by necessity of law and order, by scientific, educational or cultural purposes, or when the reproduction is connected to facts, events, and ceremonies of public interest or held in public. However, the portrait cannot be exhibited or put on the market if its exhibition or marketing causes prejudice to the honour, reputation or the decorum of the person portrayed’
. . . .
Luca Dotti and Sean Ferrer Hepburn are the sons of famous Hollywood actress Audrey Hepburn. They brought proceedings . . . against Italian corporation 2223 S.A.S. di MB Management & Entertainment S.R.L. (the Defendant), for the unauthorized use of their mother’s likeness.
The Defendant had produced and commercialized nine types of t-shirts representing just as many images portraying the likeness of Ms Hepburn. More specifically, the t-shirts carried the likeness of a woman wearing a sumptuous black dress, a diamond necklace and a tiara in her hair, together with big dark sunglasses and a cigarette with a mouthpiece. All these elements stood to recall, to the general viewer, the character of the young and elegant Holly Golightly in ‘Breakfast at Tiffany’, played by Hepburn. Other images represented the likeness of the actress under a more ‘modern’ angle, by showing her covered in tattoos, or chewing a big bubble gum, or doing a vulgar gesture with her middle finger.
This unrealistic and inelegant interpretation of their mother’s likeness was considered by the Claimants as detrimental to her reputation and honour. Therefore, they sought a declaration of infringement of her image rights as well as compensation of damages, both for profit loss and the weakening of the commercial value of Hepburn’s image, as well as for the moral prejudice to her reputation.
In response, the Defendant argued that the images at hand did not consist of a mechanical representation of the likeness of the actress but, rather, a new, different, original work, which could not in itself be considered a violation. The intent was not that of devaluing the likeness of the actress or her reputation, but rather revisiting the female image through an empowering representation. Furthermore, it claimed to have lawfully used the image since the interested person was a well-known public figure so that the use would fall under the exceptions in Article 97 of the Italian Copyright Act.
. . . .
The Turin court reaffirmed the approach of earlier Italian case law, also recalling that the public interest defence, which is to be applied strictly . . . ‘does not apply where images taken from a film are published and the publication takes place in a context other than that of the cinematographic work and its marketing’.
. . . .
Having ruled out the applicability of Article 97(1), the court considered Article 97(2) applicable instead. This provision states that, even where lack of consent could be disregarded due to exceptional circumstances, the use of one’s own image is still prohibited when the use is detrimental to the honour, reputation or dignity of the person portrayed . . . . Since the images on the t-shirts portrayed the likeness of Ms Hepburn with disregard to her real appearance and her elegance, the court found that the use at hand caused a prejudice to her reputation and dignity.
PG suggests that, as a general proposition, indie authors should avoid using the images of famous people (even if deceased) on book covers, promotions, etc., unless they have been dead for a long time – Ms. Hepburn died on January 20, 1993.
If an indie author is publishing a book across a variety of different national borders via Amazon, even if the use of an image might pass muster under US law, the laws of other nations might give rise to claims for damages.
PG further suggests that if someone plans to sue an author for misusing an image for a self-published book, it is quite likely that this person/entity would also sue Amazon in the same proceeding.
Amazon’s involvement would trigger Paragraph 5.8 of KDP’s Terms and Conditions which reads as follows (Highlights are PG’s. He has also separated out some of the sub-parts of the original legalese into subparagraphs for ease of reading):
5.8 Representations, Warranties and Indemnities. You represent and warrant that:
(a) you have the full right, power and authority to enter into and fully perform this Agreement and will comply with the terms of this Agreement;
(b) prior to you or your designee’s delivery of any content, you will have obtained all rights that are necessary for the exercise the rights granted under this Agreement;
(c) neither the exercise of the rights authorized under this Agreement nor any materials embodied in the content nor its sale or distribution as authorized in this Agreement will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights, or contain defamatory material or violate any laws or regulations of any jurisdiction;
(d) you will ensure that all Books delivered under the Program comply with the technical delivery specifications provided by us; (e) you will be solely responsible for accounting and paying any co-owners or co-administrators of any Book or portion thereof any royalties with respect to the uses of the content and their respective shares, if any, of any monies payable under this Agreement; and (f) you will not attempt to exploit the KDP service or any other Amazon program or service.
To the fullest extent permitted by applicable law, you will indemnify, defend and hold Amazon, its officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any breach of your representations, warranties or obligations set forth in this Agreement. We will be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.
PG notes that that, in the event that someone felt an author had violated her/his image or publicity rights and was considering a lawsuit, author Jane Jones of Tincup, Montana, might not make a particularly attractive defendant from whom to collect a large amount of money.
However, Ms. Jones and Amazon combined would have the means to pay a very large judgment if the complaining party was successful in a lawsuit pursued jointly against both of them.
Hundreds of emails were deleted from the accounts of Robert Indiana and his caretaker in the period leading up to the artist’s death and the beginning of the legal battle over the rights to his works such as the iconic “LOVE” image, according to an independent consultant’s report filed in federal court Wednesday.
The attorney for the art dealer that is suing Indiana’s estate included the report with a letter, filed in U.S. District Court in New York, asking the judge to settle the lawsuit in his client’s favor, saying that caretaker Jamie Thomas, who also had power of attorney for Indiana, deleted emails that would have proven their case.
Luke Nikas, the lawyer for the Morgan Art Foundation, said the missing emails are important because they might reveal Indiana’s attitude and mindset about the work in dispute, as well as other issues in the lawsuit. He’s asking the judge for what he called “litigating-terminating sanctions” against Thomas and Indiana’s estate because key evidence was willfully destroyed.
James Brannan, the Rockland-based attorney who represents Indiana’s estate and is a subject in the Morgan lawsuit, called the move “a Hail Mary pass with no receivers in the end zone.”
. . . .
According to the report, about 500 emails were deleted, including 227 messages between Thomas and Indiana, leading up to and soon after Indiana’s death in his Vinalhaven home, the Star of Hope, in May 2018. In the suit it filed against Indiana the day before he died, the Morgan Art Foundation alleges that Thomas and others close to Indiana isolated him before his death and made fraudulent artwork under his name. The Morgan Art Foundation has held rights to many of Indiana’s best-known and most-valuable artworks, including his widely reproduced “LOVE” image, since the late 1990s, and contends the value of Indiana’s art and reputation were harmed by the actions of Thomas and others.
“Indiana’s knowledge and approval and state of mind were critical, and it was obvious he used email frequently, yet all his emails were destroyed,” Nikas said in a phone interview. “When a central witness who can no longer testify has had a substantial percentage of emails destroyed, the only way (forward) is to terminate the case in Morgan’s favor. It’s clear to us the deletion was intentional.”
In December 2018, celebrities and collectors jetted into South Florida for Art Basel Miami Beach, the annual contemporary art fair. Hundreds of people in blazers and party dresses crowded into the Rubell Family Collection, a private museum, for the opening of an exhibit of work by the late Purvis Young. Visitors wound through the rooms filled with paintings and snapped selfies destined for Instagram. They jammed onto a back patio where pink lights illuminated the palm trees. A bank sponsored the cocktail bar.
Young had made thousands of paintings during his lifetime, and this midcareer selection of about 100 pieces — which was grouped by motif: “Warriors,” “Drugs,” “Holy Men and Angels,” and so on — took up the museum’s entire ground floor. Perhaps the most famous painter to ever come out of Florida, Young had depicted the struggles and joys of Miami’s poor black community and was branded an “outsider artist.” His work is in the collections of New York’s Metropolitan Museum of Art and two Smithsonian museums. Lenny Kravitz, David Byrne and Jane Fonda are all professed fans.
Eddie Mae Lovest, a petite 62-year-old in jeans and a tank top, slid through the crowd from painting to painting, pausing for a few seconds at each. Young’s works were among the first things that she noticed when she stepped off a Greyhound bus into downtown Miami in the early 1970s, a pregnant teenager fresh from the woods of Georgia. “It was me coming from a little old country town,” she had explained the day before the art show. “It was so many lights and so many people, and all these big buildings.” She thought it was crazy that someone had nailed hundreds of paintings all over abandoned buildings in Goodbread Alley, a desolate stretch of 14th Street where, decades earlier, johnny cakes were sold out of shotgun shacks. The paintings, on scraps of wood and broken doors, depicted funerals, wars, celebrations. They were full of stringy figures with extra-long bellies, long arms stretched up to the sky. “I was like, ‘Who the hell let these kids be drawing on their buildings?’ ” Lovest said. “Where I come from, you don’t draw on people’s stuff!”
Walking to her job at a downtown dry cleaner, Lovest would pass the Bahamian restaurant where Young sometimes helped the owner. The artist had a thick build, serious face and a wisp of a mustache. Soon, “we became the best of friends. For 37 long years … I took care of him, and he took care of me, from the time I met him until the time he died. Never was married. Never was girlfriend and boyfriend. Just the best friend I could have ever had.”
Young never had a wife or biological children. When he died in 2010, he named Lovest and 12 of her daughters and grandchildren as the main beneficiaries of his will. He left hardly any cash, but he did leave 1,884 artworks. Lovest assumed a sale would eventually be arranged and her family given its due. So she was surprised in 2018 to learn that a judge had let lawyers take all of the art to satisfy a half-million dollars in bills racked up on Young’s behalf. Her family hadn’t gotten a cent — or a single painting.
. . . .
Purvis Young grew up in Overtown, a historically black neighborhood in Miami once known as “the Harlem of the South.” The area was devastated when Interstate 95 was built right through it as part of urban renewal efforts of the 1950s and ’60s. Released from prison in 1964 after serving three years for breaking and entering, Young could be seen working near the highway in paint-splattered clothes, his outfit sometimes topped off with a beret. Neighborhood guys would scrounge scraps of plywood for him to use as canvases. Firefighters who were painting hydrants would bring him what was left in their buckets.
. . . .
Young was moved by the troubles he saw in the news: the Vietnam War. Protests. Sit-ins. Angels, he said, visited him and told him to paint. “I didn’t have nothing going for myself. That was the onliest thing I could mostly do,” Purvis said in a 2001 book, “Souls Grown Deep.” He returned to the same subjects over and over again: refugees arriving on boats, busy cityscapes full of trucks and buses, wild horses. The people in his work danced, prayed and grieved — often in crowds, suggesting an urgency. Pregnant women were a frequent theme; Purvis imagined them giving birth to angels and bringing forth a new nation. Sometimes his pregnant women had dozens of squiggly babies around them.
When he wasn’t painting, Young, a high school dropout, spent hours at the library, flipping through volumes about Vincent van Gogh and Henri de Toulouse-Lautrec, which charmed the librarians. When he learned about the “Wall of Respect,” a 1967 mural in Chicago that celebrated black history, he nailed up his own paintings in Goodbread Alley. “My feeling was the world might be better if I put up my protests,” he said in “Souls Grown Deep.” “I figured the world might get better, it might not, but it was just something I had to be doing.”
Young fit into the “self-taught,” “outsider” or “folk artist” genre that started gaining steam in the ’70s. His librarian friends arranged an exhibit of his work. The city hired him to do a few murals. Curious tourists coming off the new highway would stop and buy paintings for cash.
. . . .
By the mid-’70s when the buildings in Goodbread Alley were demolished, Young was being taken seriously as an artist. In 1989, a Miami art dealer, Joy Moos, signed Young to an exclusive contract and introduced his work to contemporary art galleries in New York and Chicago. Now 87, Moos recalled taking the artist to the dentist and helping him open his first bank account. In some ways, she said, “it was like taking a child.”
A Cuban Santeria priest named Silo Crespo acted as Young’s manager. According to Moos, Crespo told her that Young deserved a $30,000 or $60,000 base salary, plus commissions. When Moos balked — Young’s pieces sold for a few hundred or few thousand dollars, which she shared with the artist in an industry standard 50-50 split — Crespo put Santeria curses on her family. She hired a priestess to remove them: “I had to have the gallery cleaned. I had to do all this voodoo stuff with a cut chicken head.”
Leon Rolle, then a practicing lawyer, said Young asked him for help ending his contract with Moos so the artist could be free to negotiate with Gerard C. “William” Louis-Dreyfus — billionaire energy mogul, father of actress Julia Louis-Dreyfus and collector of self-taught artists. In Rolle’s telling, Louis-Dreyfus offered Young $3 million for 1,500 pieces and dangled the idea of sending him to Paris to paint. But the collector was worried about oversupply and wanted Young to destroy a third of his inventory. Rolle said Young rejected the deal, griping, “They never told Shakespeare he wrote too much!” (Both Crespo and Louis-Dreyfus have since died. Jeffrey Gilman, president of the William Louis-Dreyfus Foundation, doubted the billionaire would have wanted art destroyed: “He couldn’t even bring himself to sell anything!” Moos said Rolle and Crespo had unrealistic expectations of the value of Young’s work and didn’t understand the market.)
Young’s standing in the art world was solidified in 1994, when the Smithsonian American Art Museum (SAAM) bought one of his works, an untitled piece from around 1987.
. . . .
By the mid-’90s, Young had moved into a studio in Miami’s industrial Wynwood neighborhood, where he slept in a recliner with three TVs blaring at once. “One with Fox News,” said Sharon Rolle, “and one for the sex movie” — Eddie Mae laughed — “and one with his History Channel.” “And jazz music playing,” added Leon.
As his artwork piled up, the space became a fire hazard, and in 1999, Young faced eviction. By coincidence, art collectors Don and Mera Rubell, who had helped launch the careers of Keith Haring and Jeff Koons, admired Young’s work at a friend’s house and dropped by his studio. “With him, it’s all in the gesture,” Mera Rubell said at her museum this spring. “He could put 100 figures in a crowd just with his single wiggle and you could know they’re in protest, or a crowd witnessing a funeral.” She compared him to Edgar Degas, Georges Seurat and Alberto Giacometti.
The Rubells offered to buy his entire inventory, more than 3,000 pieces. Mera Rubell declined to disclose the price, but locals have speculated that it was anywhere from $60,000 to $1 million. Young told Lovest it was $85,000, but she’s not sure that’s right either. Whatever the amount, it was enough to save him from eviction. The Rubells vowed never to sell Young’s work and have gifted 493 of his pieces to institutions. When they gave 91 pieces to the Tampa Museum of Art in 2004, Sotheby’s appraised the gift at $1 million, an average of nearly $11,000 per piece; 109 works donated to Morehouse College in 2008 were valued at more than $1 million, over $9,000 apiece.
In Wynwood, around 2005, Young also met a gallerist named Martin Siskind who became his new manager. Now 78 and operating a gallery in Little Haiti, Siskind recalled the artist had a touch of cunning: “Everyone talks about, ‘He was a friendly giant, very ignorant, didn’t know the ways of the world.’ That couldn’t be further from the truth! People would try to take advantage of him. He felt he took advantage of them! Soon as they bought 10, 20 paintings, he’d say, ‘Man, I could paint another 20 paintings this afternoon.’ ”
It wasn’t long, though, before Young came to believe Siskind was the one trying to take advantage of him. He complained that Siskind allotted him just $500 a week, refused to provide an accounting of art sales and changed the locks to the warehouse where his paintings were stored, according to a lawsuit the artist later filed against Siskind. In January 2007, while Young was in the hospital for a kidney transplant, he fired Siskind from his bed in intensive care and retained a lawyer, Richard Zaden, to sue him. “We stopped what we were doing and put his case to the front burner,” Zaden recalled. Siskind argued their relationship had been a partnership and demanded 50 percent of Young’s inventory — about 1,000 pieces — to end it. He also told a probate judge that Young required a guardian. Young found out only when a court-appointed lawyer appeared at his bedside to perform an evaluation.
Guardianship is intended to protect vulnerable people, such as those with dementia, from mismanaging their finances or making harmful decisions. But critics of the system say it’s too easy to put a ward under a guardianship and give a stranger power over his life. Under Florida law, any adult can file a petition alleging that another is incapacitated. A three-person team investigates and reports to a probate judge. (One of the three must be a physician.) The judge decides whether to appoint a guardian, who can suggest which of the ward’s rights — such as voting or determining his own residence — should be taken away. Any high school graduate can become a professional guardian if they fulfill certain requirements, which include completing a 40-hour course and passing an exam, a credit check and a background check. Guardians are paid by the ward, as are lawyers brought in for court proceedings. As these bills add up, they can drain a ward’s savings. Critics also complain of coziness between judges and lawyers who work closely in guardianship courts.
People close to Young felt Siskind had sought the guardianship as retaliation, but Siskind insists he only had good intentions. “I thought [the guardians] would take care of him, and I could step aside and hope for the best,” he told me.
Miami-Dade probate court judge Maria Korvick, who oversaw Young’s guardianship case, declined to comment for this story, citing ethics rules, but in a 2018 court transcript, she remembered Young as someone who was in “very, very bad shape. … He didn’t like to listen to doctors, and he didn’t like to eat what he was supposed to, but he was a darling man.” She appointed two guardians: Anthony Romano, as “guardian of the person,” was tasked with overseeing Young’s housing and medical care; and David Mangiero, as “guardian of the property,” was charged with overseeing the artist’s assets and finances.
The OP reminded PG of a dispute over an estate that had been going on for over 13 years when he became involved.
The estate was worth about $1 million when the woman had died. She was unmarried and had no children. She signed a will, but then took a long road trip around the country to visit friends and relatives and took her will with her.
During this trip, she made a great many written changes to her will, some in ink and others in pencil. In addition to changing the terms of the will, some of her changes conflicted with other changes she had made. Some changes were partially crossed-out, leaving portions of bequests intact.
PG was hired by a nephew of the deceased to represent him after the 13 years mentioned. He managed to persuade the judge to set a court date for a trial of everyone’s claims. Over 20 attorneys showed up along with about 75-80 heirs and would-be heirs.
The judge told the attorneys that, if their clients did not agree on a settlement, he was going to enter a judgment that almost everyone in the courtroom would not like. He then announced that he would start the trial in three hours unless the case had been settled by then.
The attorneys got together in another room in the courthouse. They first agreed that no one wanted to attempt to try the case because 1) it would take anywhere from several days to several weeks, 2) no one had the slightest idea how the judge would rule and 3) regardless of how the judge ruled, someone would appeal the verdict, it would take a very large time for the appellate court to review the case and it was almost certain that court would find something the trial judge did wrong and, potentially, send the case back for a retrial.
Over the course of two hours, the lawyers came to an agreement that gave everyone something, but nobody as much as they wanted. They then presented the agreement to their clients (some via long-distance telephone [this was before cell phones were in common use, so all the landline phones in the court clerk’s office plus the telephones in various law firms within walking distance of the courthouse were used]). It took about an hour and PG would not want to have heard some of the phone conversations, but finally all the clients agreed and the case was settled.
The moral behind the OP and PG’s war story is that everyone, particularly people like artists and authors who own intellectual property, needs an estate plan. Whether that plan will entail a will or a trust or both will be up to the individual after counseling with an attorney, but anything the attorney prepares will be better than nothing.
And, for heaven’s sake, if you want to make changes later, go to the original attorney or another one to get a little help so that your 30-year-old heirs won’t be over 40 by the time they receive their share of the estate and won’t have to pay most of their inheritance to one or more lawyers.
For the avoidance of doubt, PG hasn’t created an estate plan for well over 20 years and is not going to re-start doing so now.
Unless you are a very wealthy person, any number of attorneys can competently handle the creation of the documents that will make your death easier on your heirs. (PG makes no representations concerning whether any documents will make your death easier for you or not.)
Make sure you tell your attorney about the books, stories, poems, etc., that you have written, the copyrights you have obtained respecting those items and any outstanding publishing agreements you have signed that affect those items so she/he can make provision for their distribution. Preparing a list of such items before you visit the attorney is almost certainly a good idea.
A Missouri bill intended to bar libraries in the US state from stocking “age-inappropriate sexual material” for children has been described by critics as “a shockingly transparent attempt to legalise book banning” that could land librarians who refuse to comply with it in jail.
Under the parental oversight of public libraries bill, which has been proposed by Missouri Republican Ben Baker, panels of parents would be elected to evaluate whether books are appropriate for children. Public hearings would then be held by the boards to ask for suggestions of potentially inappropriate books, with public libraries that allow minors access to such titles to have their funding stripped. Librarians who refuse to comply could be fined and imprisoned for up to one year.
. . . .
PEN America’s deputy director of free expression research and policy, James Tager, called Baker’s bill a “shockingly transparent attempt to legalise book banning in the state of Missouri”. He said it was “clearly aimed at empowering small groups of parents to appoint themselves as censors over their state’s public libraries” and said that books containing sexual themes, LGBTQ characters and exploring the impact of sexual assault could be “on the chopping block if this bill is passed”.
“Every reader and writer in the country should be horrified, absolutely horrified, at this bill,” said Tager. “The fact that a librarian could actually be imprisoned for following his or her conscience and refusing to block minors from access to a book, that tells you all you need to know about the suitability of this act within a democratic society.”
Readers might remember that, a couple of years ago, this blog reported on a lawsuit filed in Italy by former Argentinean footballer Diego Armando Maradona against Italian fashion house Dolce&Gabbana.
The use, by the defendants, of his name on a jersey (below) worn by a model during a fashion show held in Naples in 2009 [Maradona played for Napoli for a few years, and in that city he reached the peak of his career]. The jersey, which was sold neither before nor after the show, carried the number ‘10’, ie the same number used by Maradona while at Napoli, and had the same colour combination as Napoli jerseys. Images of the jersey appeared on general interest media and also on the Dolce&Gabbana website.
. . . .
Maradona sued and claimed damages for EUR 1 million (!) due to the unauthorized commercial exploitation of his name. He submitted that Dolce&Gabbana’s use of his name had allowed them to take an unfair advantage of his repute and also likely misled the public into believing that there would be a commercial partnership between himself and the defendants.
News has reached The IPKat that now the Milan Court of First Instance has issued its decision on the matter, finding in favour of Maradona. The court noted that [the translation from Italian is mine]:
Without any doubt, the use of a decorative element which reproduces a third-party distinctive sign or name, leads – to say the least – to the establishment of an association with that person. If the sign is well-known, also and above all in a non-commercial sector, and conveys – like the sign at issue – particular impressions of historical allure and football excellence, it cannot be freely used by third-party undertakings without the permission of the rightholder.
Generally speaking, PG suggests that you’ll have a quieter life as a fiction author if you create fictional characters with fictional names.
Briefly, there are two classes of potential claims if you use the name of a real person.
In the US, these are state laws, so there is no federal law you can rely on across the US. As you can see from the OP, there are also similar laws in some other countries, so if you publish internationally, you, too may be subject to the laws of Italy even if you live in Wichita.
The two types of claims are usually characterized as follows:
1. “The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona, which shall be referred to in this article as the “individual’s identity”. Protecting the individual from the loss of commercial value resulting from the unauthorized appropriation of an individual’s identity for commercial purposes is the principle purpose of this body of law.” See Findlaw for more.
2. “Invasion of Privacy: Appropriation of a Name or Likeness
An individual may have a cause of action for invasion of privacy when their name, likeness, or some other personal attribute of their identity has been used without permission. For example, a business may use an individual’s personal photograph without consent to advertise its product. Alternatively, a person may use the name and personal information of another without consent for professional gain.
To succeed in an appropriation lawsuit, you must prove that:
1. You didn’t grant permission for the use of your identity.
2. The defendant utilized some protected aspect of your identity.
(The law varies state-by-state on what constitutes a protected aspect of identity. For example, California law expressly protects a person’s name, likeness, voice, signature, and photograph, whereas Florida statutory law is more limited, protecting only a person’s name, likeness, portrait, and photograph. State statutory law differences are frequently minimized by case law, but these differences nonetheless can affect the strength and scope of your claim.)
3. The defendant used your identity for their immediate and direct benefit.
(This “benefit” is typically commercial, as in the use of a personal photograph for advertising. Some states, such as Florida, limit liability to situations involving a commercial benefit. In other states, however, liability may attach even if the defendant appropriated the identity for a noncommercial benefit, such as impersonation for professional gain.)” See Findlaw for more.
PG suggests that you don’t really need to use Kim Kardashian’s name in your novel. Search on the term “name generator” and you will find lots of websites that will help you create a fictitious name for your wealthy Beverly Hills heroine.
The following item is a bit more on the legal side than PG posts on TPV. Since the article is written by a law school professor and discusses a book written by another law school professor, it is highly legal. For PG at least, it does show how the less-traditional forms of property have some fuzzy edges around them.
However, it’s a discussion of the origin of the concept of property in the United States. Property comes in a variety of different forms. First a couple of easy property concepts:
Real Property is what we might usually call real estate – land – a farm, a lot upon which someone builds a house or apartment building, etc. These days, ownership of real property is usually acquired when a seller who owns the property transfers title to the property to a buyer. A deed is usually involved, describing the real property being conveyed with enough detail so the property conveyed won’t be mistaken for other property. Deeds are typically recorded with a local government agency and are part of a public record that allows anyone who has questions about a piece of real property and its past and present ownership to examine the record and the documents transferring title.
Personal Property is all kinds of other stuff that isn’t real estate. Your clothing is personal property. An automobile is personal property. The furniture and furnishings in your house (as opposed to the house itself and the land on which it sits) is personal property.
Intellectual Property is a right to intangible property created by someone – a painting, book, photograph, sculpture, etc., etc. Intellectual Property usually includes not only the right to own, transfer, etc., the original of the painting, photo, etc., but also the right to make copies of the original creation and/or to permit others to make copies, whether exact copies of the original or copies that derive from the original – a novel that is adapted into a play is but one example.
Strictly speaking, when a photographer makes a photo using a traditional film camera, the photographer is creating a negative which appears after proper chemical development. From that negative, one or more positive prints can be made. The photographer owns the negative and the exclusive right to make prints of the negative. If the photographer takes a photo of a painting created by someone else, there can be a couple of different types of intellectual property involved – the IP of the painter that is associated with the painting and the IP of the photographer associated with the creation of the photo.
With that quick and dirty introduction, here is an article about Pierson v. Post (footnotes are omitted, but you can see them in the original, of course).
Most American law students are familiar with Pierson v. Post, a case that has been a fixture in American property law casebooks for well over half a century. Decided by the New York Supreme Court in 1805, Pierson v. Post is used in property law courses to illustrate the question of how property rights arise in wild animals. Today, it is frequently taught alongside cases exploring how property rights arise in contemporary contexts such as ground water, human genetic materials, baseballs hit into stadiums crowded with fans, and the like. The facts of Pierson are simple and memorable: Post is in pursuit of a fox on a beach in Long Island when Pierson interrupts the hunt and kills the fox. Has Post acquired a property interest in the fox by virtue of the fact of being engaged in pursuit of it? The New York court deciding the case canvassed a range of European authorities going back to Justinian. The majority ruled that no property rights could arise in a wild animal unless it was captured. The rule it advanced has the virtue of clarity. But it risks being unfair to Post, particularly if he was at the point of killing the fox and/or if his labors had made it easier for Pierson to kill it. The dissent, in a witty opinion by Judge (and future U.S. Supreme Court Justice) Henry Livingston, would have allowed for property rights in the fox to arise through something short of actual capture, namely, imminent taking. The dissent’s solution might be fairer to Post, perhaps, but specifying what counts as an imminent taking is no easy task, entailing more work for lawyers and judges.
In my own property law course, Pierson v. Post has appeared either at the beginning or the end, but in neither instance have I devoted more than half an hour of a single class session to it. I teach Pierson v. Post because it neatly illustrates the difference between clear rules and blurry standards, but also because it is a “classic.” I do not want my students to leave the course without having a glancing familiarity with something they are “supposed” to have run into in law school.
What has been a minor pedagogical experience for me and my students has been, it is fair to conclude, an obsession for Angela Fernandez. She has spent a decade working on her new book, Pierson v. Post: The Hunt for the Fox, and has recently authored a “rewrite” of the Pierson v. Post dissent in which she adopts the style of someone writing in 1805 but advances feminist and animal rights sensibilities. My review will cover both the book and the “rewritten” dissent and will set them in relationship to one another.
Fernandez offers us a history of Pierson v. Post backed by impressive archival research. She shows how our simple lawyerly rendering of Pierson as a choice between different rule regimes obscures the complex literary, social, and intellectual universes that shed light on, even as they are illuminated by, the case. However, Fernandez follows no linear narrative, advances no neat argument, offers no simple “takeaway.” Instead, she picks up on the different leads the case presents and follows each into different archives. The result is a book without a stable center. The reader is offered exhaustive treatments of the following, each of which speak to some aspect of the case: the ribaldrous masculinist culture of literary games and theater engaged in by Anglo-American lawyers in the early nineteenth century; the practices of hunting foxes and whales; the lives of the Pierson v. Post litigants, their lawyers, and the judges; the relations between Native Americans and settlers in early nineteenth century New York; different legal characterizations of land and animals; the appropriation of Pierson v. Post in nineteenth century treatises and twentieth century casebooks; and so on. Fernandez even gives us photographs of the beach on Long Island where that famous fox hunt took place over two hundred years ago.
. . . .
Apart from its structure, to my mind, the most important contribution of Fernandez’s book is the way it foregrounds the plurality of what law is. We might think of law as giving us rules to solve problems. In one sense, it is that. Fernandez would surely agree. Pierson is, after all, a case that presents us with different rules for deciding when wild animals become private property. However, in the book, Fernandez shows brilliantly that law has been—and continues to be—a great deal more. Specifically, she highlights the many ways in which the law relates to, produces, and offers up things that are not instrumental in any simple sense, things that constitute a kind of excess, things that refer back to themselves. Here I have in mind Fernandez’s exploration of the famous Livingston dissent in the Pierson case that takes us into the early nineteenth century masculinist legal culture of literary allusion, games, and theater and, later in the book, her investigation of the world in which law is the writing of treatises and case books all relating to and revising one another. The law, as she describes it for us, is these things—all of them excessive or self-referential in important respects—as much as it is about solving any particular dispute or problem. I agree entirely.
With this as background, I want to suggest that Fernandez’s “rewritten” dissent in Pierson v. Post—her act of “updating” the case to reflect her feminist and animal rights sensibilities in the voice and tone of someone writing in 1805—is yet another instantiation of this self-referential, excessive, allusive, theatrical or game-like legal tradition she explores in such depth. What is the point of “rewriting” a dissent to a two hundred-year old opinion, one might well ask? Why not just ignore the opinion, or criticize it, or declare it to be unjust or wrong? Why go through the laborious exercise of “rewriting” it? What is this if not a literary exercise—another act of self-referential theater or a game–in which the object points to itself as much as to the new politics it seeks to perform?
What is the relationship between this kind of self-referential legal-literary exercise with the conventional disciplinary historical one of situating Pierson v. Post “in context”? One of Fernandez’s stated goals in the book is to change our understanding of the case itself. As she herself puts it: “My intention in this book is to disrupt any previously dominant understanding of Pierson by changing the way we think about it.” (P. 326). We know an enormous amount about Pierson v. Post thanks to Fernandez’s attempt to track down everything related to it. But we do not really get a clear sense of how her hunt for details and the consequent massive building up of context relates to the self-referential, literary, theatrical, game-like quality of the law reflected in the original opinions in Pierson v. Post, the subsequent appropriation of the case by legal writers, and in Fernandez’s own decision to “rewrite” the Pierson dissent after learning all that seems humanly possible to learn about it. How does one historicize a game? Is history the best way of understanding a game? Is playing the game a better way?
Fernandez does both. On the one hand, she historicizes the games of law: the book can be read as history. On the other, as revealed in the book and the “rewritten” dissent, Fernandez plays the games of law herself, both in structuring her book like a fox hunt (itself a sport) and following her prey wherever it takes her and in artfully “rewriting” the Pierson v. Post dissent to transpose her political sensibilities into the language of the early nineteenth century. She offers novel ways of doing history and playing with and in history. For these reasons, her work merits our attention.
Politicians and social critics who worry about “the curse of bigness”—and vow to rewrite antitrust law to break up Facebook and Google—forget what happened the last time the government used the law against a Silicon Valley company. In 2012 the government successfully sued Apple for daring to compete with Amazon in selling e-books. The unintended result was not exactly a victory for the consumer or for competition: the continued dominance of Kindle, Amazon’s e-book format and reading device; increased e-book prices; and suppressed e-book innovation.
Chris Sagers, a law professor at Cleveland State University, explains in “United States v. Apple: Competition in America” what he sees as confusion about antitrust law. His analysis can be helpful—he notes the long history of companies invoking claims of “predatory pricing” as a cudgel against more efficient competitors and stresses that consumers often benefit when industries and companies are driven out of business—but he is confused about the case itself.
His thesis is that Apple’s entry into the e-book market was so clearly a violation of antitrust law that critics of the case must not believe in competition. But critics object to an interpretation of antitrust law that ended up punishing Apple for introducing a new pricing approach—an approach that is now common in every other area of online sales. Mr. Sagers forgets the guardrail rule of antitrust: Don’t bring cases against innovations that create more competition.
Consumers were delighted when Amazon launched its Kindle e-reader in 2007, and book publishers were happy to sell books in digital form. But there was an unusual feature. In its selling of e-books, Amazon operated according to the same pricing arrangement that had governed the sale of print books—that is, it bought e-books wholesale and chose its own price for them, just as bookstores had long done with print books. Brick-and-mortar bookstores needed this pricing flexibility for many reasons, not least to clear their inventory of unsold books by means of lower prices. The arrangement let Amazon sell e-books for years as a loss-leader—at the low price of $9.99—to boost profitable sales of its Kindle devices.
Around the same time, Apple had set about licensing music, video and games so that consumers would have reasons to buy its iPad. Apple realized that, for digital goods, there was no reason to follow the wholesale model. It could simply set up a revenue-sharing formula. Content owners and app developers—think of an iPad or iPhone game, such as “Minecraft” or “Fortnite,” that offers premium features—could pick their own price, even choosing to offer content free, and Apple would take 30% of any sales as a commission.
When Steve Jobs decided to include e-books on the iPad in 2010, Kindle had a 90% market share. So book publishers were again delighted—that Apple would be entering the market with its revenue-share model and letting publishers set the prices for their e-books. The largest publishers met among themselves to agree on the terms for licensing their books to Apple. The government sued, claiming an unlawful conspiracy masterminded by Apple.
Mr. Sagers sees this as an open-and-shut case of an unlawful pricing conspiracy and expresses surprise that there was so much support for the book publishers and Apple. He rightly dismisses the self-serving argument that books are so culturally important that publishers and Apple deserved an antitrust exemption. He is also right to note that Amazon was not, despite its huge market share, an unlawful monopolist—big is not always bad.
. . . .
Mr. Sagers believes that opposition to the Apple case shows that Americans are ambivalent about competition. There are times, he says, when “competition seems destructive.” When antitrust law requires firms to compete in such circumstances, then “antitrust itself has seemed like a failure.” The government claimed that Apple conspired with book publishers, risking higher prices, but the case was perceived as a government favor to Amazon, which it was.
Indeed, people objected to the Apple case because it was ill-advised—limiting consumer choices and blocking lower prices. Appeals Court Judge Dennis Jacobs made this point, writing in his 2015 dissent that Apple’s conduct “immediately deconcentrated the e-book retail market, added a platform for reading e-books, and removed barriers to entry by others.” With Apple in the game, Amazon’s 90% market share fell to 60%. Now it’s back up to 83%, according to the latest industry estimate. As competition decreased, prices increased. The typical price for a Kindle best seller is now in the range of $14.95.
. . . .
The Apple case violated the first rule of antitrust: First, do no harm.
PG hasn’t read the book that is the subject of the WSJ review. However, the author of the review wildly misstates the purposes, activities and actions of Apple and all but one of the largest publishers in the United States.
Let us review the actions and actors in this matter (which were extensively documented and discussed on TPV during the days of yore):
While Amazon was not the first entity to sell ebooks, it was the first to sell ebooks from traditional publishers at a substantial discount from their list prices, which correlated with the suggested list prices for printed versions of the same books.
Amazon also was revolutionary in permitting self-published books (including ebooks) to be listed and sold side-by-side on the same basis as traditionally-published books.
The six largest publishers in the United States – Random House, Hachette, HarperCollins, Macmillan, Penguin, and Simon & Schuster had developed a cozy little dinner group consisting of their CEO’s who met about every three months in a private dining room in Manhattan to talk about their mutual concerns – most often Amazon’s habit of discounting the prices of their books and what they could do about it. These six produced the majority of books sold in the US and were receiving complaints from their traditional bookstore customers about Amazon’s low prices. The publishers did not want to “cannibalize” their sales of printed books and were the recipients of a growing number of complaints from their traditional bookstore customers. No company attorneys were present during these dinner discussions.
PG will note that private meetings of the top executives of large companies that dominate an industry to discuss the pricing of their products are almost always a bad idea and, by themselves, raise a big red antitrust flag. Competent corporate counsel would always advise against such a practice.
Apple was planning to introduce its iPad in January, 2010, and include an iBookstore as one of the product’s attractions.
PG notes that Apple has never been a fan of significant discounts for the products it sells.
In December, 2009, Apple’s senior VP of Internet Software and Services, Eddy Cue, contacted the members of the Publishers dinner group to set up meetings.
During these meetings, Cue said that Apple:
Would sell the majority of e-books between $9.99 and $14.99, with new releases being $12.99 to $14.99, higher prices than Amazon was charging.
Apple would use the same “agency pricing model” that it used in the App Store for ebooks.
Agency Pricing allowed the Publishers control the retail price of the e-books with Apple receiving a 30% commission.
Most significantly, Apple would require what is generically described as a “Most-favored nation” clause in its contracts with publishers that allowed Apple to sell e-book at the lowest price of its ebookstore competitors (read “Amazon”).
PG doesn’t recall if the publishers had another private CEO dinner or not, but evidence at the later antitrust trial showed the Big Six publishers called each other over 100 times in the week before signing the Apple agreements. Everyone except Random House boarded this bandwagon.
In January 2010, Apple held one of its typically flashy product launches for the iPad together with its associated ebook, music and video stores.
During the post-launch mingling, Wall Street Journal reporter Walter Mossberg asked Steve Jobs why people would pay $14.99 for a book in the iBookstore when they could purchase it for $9.99 from Amazon. In response Jobs stated that “The price will be the same… Publishers are actually withholding their books from Amazon because they are not happy.” In other words, the publishers would force Amazon to raise its ebook prices to match those in the iBookstore.
Amazon complained to the Federal Trade Commission and, rather than not being able to sell any ebooks of the major publishers, switched to the agency model after negotiations with the major publishers. This resulted in an average per unit e-book retail price increase of 14.2% for their new releases, 42.7% for their NYT Bestsellers, and 18.6% across all of the Publisher Defendants’ e-books.
Back to the book reviewed in the OP, there was nothing wrong with Apple “introducing a new pricing structure” – agency pricing. Had Apple only done that, no antitrust violation would have occurred. However, when Apple conspired with a group of the largest publishers to force Amazon (and anyone else selling ebooks) to adopt agency pricing when such had not previously been the case, that was an antitrust violation, particularly in the light of what happened to ebook prices after the coordinated joint action took place.
Had the big publishers individually been willing to lose the highly-profitable ebook sales on Amazon as a potential consequence of telling Amazon it had to raise its prices and/or agree to let the publisher set the price, that would probably not have triggered any antitrust concern. Coordination between the publishers to use their combined power to force Amazon raise prices was where the publishers crossed a clear legal line.
With respect to what happened in the court case, each of the publishers admitted guilt, settled the antitrust claim and promised not to do any price-fixing in the future. Apple litigated the antitrust case to the max and lost at every stage.
Although Amazon was not a party to the litigation, Amazon won.
More significantly (in PG’s majestic and resplendent opinion), authors won. Indie authors in particular won. In June, 2010, a couple of years before any antitrust litigation had been commenced, Amazon introduced its 70% ebook royalty option which has put a great deal of additional money into authors’ pockets ever since.
Last week, independent production company Magic City Films announced that it would be bringing James Dean back from the dead. Not literally, but digitally, using full-body CGI and existing footage and photos. The Rebel Without a Cause actor will become the secondary lead in a new Vietnam War film called Finding Jack. The two directors, Anton Ernst and Tati Golykh, said they searched for a suitable actor but, after months of research, Dean was chosen for the part.
The news has been met with a barrage of criticism from the Hollywood elite, with Chris Evans calling it awful and the lack of understanding “shameful,” while Elijah Wood just said “nope.” But James Dean isn’t the first entertainer to be digitally resurrected, and he certainly won’t be the last.
In 2017, Peter Cushing, who died in 1994, was brought back to life to reprise his role as Grand Moff Tarkin in Rogue One. Similarly, Philip Seymour Hoffman and Paul Walker, who both died during production of their respective films, were digitally re-created to finish their movies. Carrie Fisher was also famously digitally re-created for the ninth installment of the Star Wars saga.
On Tuesday, newly-formed IP licensing firm Worldwide XR announced that it holds the rights to more than 400 dead celebrities, actors, historical figures, musicians, athletes, and others. The lid of Pandora’s box has flung wide open, and we could be about to see a whole glut of dead celebrities reappearing on our screens.
. . . .
“We were being approached by some filmmakers who wanted to make their, movie and they wanted to hire James Dean,” says Worldwide XR CEO Travis Cloyd. “It was aligned with our objectives, and we did our vetting, and we read the script, and we talked it over with the family, and it just felt like it was a good time.”
Mark Roesler started CMG Worldwide in 1982 after finding that deceased celebrities had no one to represent them post-mortem. Roesler carved out a niche in representing the estates of dead stars, and the families of these celebrities began approaching CMG looking for representation. Elvis Presley and James Dean became the firm’s first two clients.
These representation rights give the company the “right of publicity” under the US-based state-by-state law, which is at the heart of dead celebrities’ image rights. The right of publicity was enshrined in Californian state law in 1985 and declares that the rights to use a celebrity’s image, including their voice and likeness, will be transferred to the deceased actor’s estate once that actor passes away, with any money from licensing going to the estate. Anyone wanting to use that actor’s image must gain permission from the actor’s estate.
The UKIPO (United Kingdom Intellectual Property Office) updated its Formalities Manual on the 28th of October 2019,adding under 3.05 a provision that “An AI Inventor is not acceptable as this does not identify “a person” which is required by law. The consequence for failing to supply this information is that the application is taken to be withdrawn under s. 13(2)”.
Although one could question how important and breathtaking this amendment is, still, it signals the intention of the UKIPO and the way that it perceives AIat this point of time. It is difficult to be sure what has triggered this new provision,, but it could be related to the patent applications submitted in the UKIPO, UPSTO and EPO, respectively, concerning (i) a new form of beverage container based on fractal geometry and (ii) a device for attracting enhanced attention valuable for search and rescue operations. What these patent applications have in common is the inventor, an AI called Dabus.
Naturally, humans are involved in these patent applications, namely in the form of the applicants, two professors from Surrey University. The question is, of course, why the applications name the AI program as the inventor, if not to provoke a reaction from major patent offices.
. . . .
Professor Ryan Abott, also a professor at Surrey University, is the head of the application’s project. One of his statements available on the website of Surrey University states,
“Powerful AI systems could hold the key to some of the mega challenges facing humanity – from the cure for cancer to workable solutions for reversing climate change. But if outdated IP laws around the world don’t respond quickly to the rise of the inventive machine, the lack of incentive for AI developers could stand in the way of a new era of spectacular human endeavor.”
In fact, the patent applications are part of a project, the Artificial Inventor project.
Plaintiff sued its former employee and alleged, among other things, that defendant violated the anticircumvention provisions of the Digital Millennium Copyright Act (17 USC 1201). While defendant was still an employee, she used her username and password to access and download copyrighted material stored on plaintiff’s server after she had already accepted an employment offer from a competitor.
. . . .
The court’s holding centered on what the DMCA means by “circumvent a technological measure”. The statute requires that for there to be circumvention, one must “descramble a scrambled work . . . decrypt an encrypted work, or otherwise . . . avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.”
. . . .
The court found that even if the use that defendant made of that access was not something that plaintiff would have authorized her to do, i.e. copy the materials at issue, defendant’s alleged abuse of her logon privileges did not rise to the level of descrambling, decrypting, or otherwise avoiding, bypassing, removing, deactivating, or impairing anything.
PG assures one and all that TPV is not going to become a legal blog.
However, the Digital Millennium Copyright Act, enacted in 1998, is an important protection for authors, especially where ebooks are involved.
As anyone paying attention knows, pirated intellectual property in digital form is a lovely thing for those who don’t want to pay creators, are cash-strapped college students, etc., etc. While making a copy of a physical book doesn’t require any particular skill, it does require time and labor. Making a copy of an ebook is much less difficult, even if it is protected by DRM (Digital Rights Management) software.
Here’s a link to one of many online descriptions of how to remove DRM protection. This particular link includes a step-by-step description of how to use Calibre plus a third-party DRM Removal Plugin to remove copy protection from every major ebook format. Under current law, doing this is illegal as is creating software to remove DRM protection, even for your own use.
The provisions of the DMCA that prohibit this are generically referred to as the anti-circumvention provision and are found in n 17 U.S.C. 1201(a), 1203, and 1204.
The core of the prohibition is included in 1201(a)(1)(A)
(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
1201(a)(3) provides a couple of relevant definitions:
(3) As used in this subsection—
(A) to “circumvent a technological measure” means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and
(B) a technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.
The Electronic Frontier Foundation has filed suit to invalidate these anti-circumvention provisions or otherwise neuter them. Here’s a link to a recent status report on the litigation written by Cory Doctorow.
POM Wonderful’s advertising claims were false and deceptive. That’s the conclusion of the United States Court of Appeals in upholding the FTC’s ruling. We think it’s a momentous victory for our two clients: American consumers and the cause of truth in the marketplace. You’ll want to read the entire opinion, of course, but here are twelve quotes from the D.C. Circuit’s decision that businesses, attorneys, and law enforcers will be citing for years to come.
“The FTC Act proscribes – and the First Amendment does not protect – deceptive and misleading advertisements.” Companies often cite the First Amendment as a defense in FTC cases. They forget the foundational principle that misleading ads get no constitutional protection.
“The Commission had no obligation to adhere to notice-and-comment rulemaking procedures before imposing liability in its adjudicatory proceeding.” POM claimed that the FTC had to undertake a rulemaking – rather than bringing a lawsuit – because it was imposing a major change to its substantiation standard. Wrong on two counts, the Court concluded. First, the FTC is “not precluded from announcing new principles in an adjudicative proceeding.” But the bigger point is that the legal principles the FTC applied were well-settled “business as usual” standards. As the Court held, “With respect to POM’s establishment claims, the substantiation standard applied by the Commission is consistent with Commission precedent. When an advertiser represents that claims have been scientifically established, the FTC has long held the advertiser to the level of evidence required to convince the relevant scientific community of the claim’s truthfulness.”
“The Commission is often in a better position than are courts to determine when a practice is deceptive within the meaning of the FTC Act, and that admonition is especially true with respect to allegedly deceptive advertising since the finding of a § 5 violation in this field rests so heavily on inference and pragmatic judgment.” Courts give administrative agencies a lot of deference when it comes to subject matters within their purview. For the FTC, that includes determinations of what an ad conveys and when it’s deceptive under Section 5. Why such a standard? Given its decades of collective institutional experience, that’s the FTC’s bread and butter.
“The Commission examines the overall net impression left by an ad and considers whether at least a significant minority of reasonable consumers would likely interpret the ad to assert the claim.” Nothing new there, but the D.C. Circuit offers a succinct reminder of that touchstone. People can interpret ads more than one way and advertisers must substantiate all reasonable interpretations consumers take from their ads.
“In identifying the claims made by an ad, the Commission distinguishes between efficacy claims and establishment claims. An efficacy claim suggests that a product successfully performs the advertised function or yields the advertised benefit, but includes no suggestion of scientific proof of the product’s effectiveness. An establishment claim, by contrast, suggests that a product’s effectiveness or superiority has been scientifically established.” This, too, should be old hat for advertisers. If an ad conveys an efficacy claim, the advertiser needs a reasonable basis to support it. The FTC analyzes that under the Pfizer factors the type of product, the type of claim, the benefit of a truthful claim, the ease of developing substantiation for the claim, the consequences of a false claim, and the amount of substantiation experts in the field would consider reasonable. But once advertisers claim to have a certain level of proof, they’ve upped the ante and “must possess the specific substantiation claimed.” What if an ad conveys a non-specific establishment claim – for example, by saying that a product has been “medically proven” to work or by using visuals that suggest it’s “based upon a foundation of scientific evidence”? In that case, the advertiser “must possess evidence sufficient to satisfy the relevant scientific community of the claim’s truth.”
. . . .
“The use of one or two adjectives does not alter the net impression, especially when the chosen adjectives (such as “promising”) provide a positive spin on the studies rather than a substantive disclaimer.” That’s a quote from the FTC opinion cited favorably by the D.C. Circuit. POM tried to disavow its numerous establishment claims by arguing that it just said the scientific research was “promising,” “initial” or “preliminary.” As the FTC countered, “Those sorts of modifiers do not neutralize the claims made when the specific results are otherwise described in unequivocally positive terms.” The message to marketers: Don’t sprinkle a few adjectives here and there and expect them to undo the net impression conveyed to the buying public.
From Pirated Thoughts, the alternative legal blog:
The Federal Trade Commission has released its “Disclosures 101 for Social Media Influencers” and we break down how influencers should disclosure paid ads or sponsorships.
First things first, if you are getting paid to mention a product, place a product, or speak about a product on social media, the Federal Trade Commission requires that it be disclosed. Meaning you can’t get paid to promote a product without telling people you are getting paid. In the past, big companies have been fined over not having their influencers disclose such sponsored ads.
. . . .
Influencers must disclose when they have any financial, employment, personal, or family relationship with a brand. If given free or discounted products, an Influencer is required to disclose this information even if they were not asked to mention that product. The FTC reminds Influencers that even wearing tags or pins that show favorability towards a company can be considered endorsements of said company. However, if you simply enjoy a product and want to talk about the product, you are not required to declare that you don’t have a relationship with that brand. Lastly, even if these posts are made from abroad, U.S. law will still apply if it is reasonably foreseeable that the post will affect U.S. consumers.
. . . .
When disclosing a brand relationship, the disclosure should be placed within the endorsement itself. However, this does not mean you can mix the disclosure in with a group of hashtags or links; it must stand out. For photos, the FTC requires Influencers superimpose the disclosure over the photo and, in the case of Snapchat, give their viewers enough time to read it. For videos, the disclosure must be in both the video and the description.
. . . .
The FTC also stresses using simple and clear language. Examples of this are thanking brands for free products, or using terms such as “ad.” Terms such as “Partner” and “Ambassador” are also extremely useful for communicating a partnership. Hashtags are fine, and encouraged, but not necessary. Of course, the disclosure must be in the same language as the endorsement.
PG’s Simple and Clear Language: He doesn’t get paid for anything he posts on TPV other than the occasional link to a book for sale on Amazon that includes an affiliate link.
He appreciates it when visitors click on an Amazon affiliate link and thereafter buy something on Amazon, but Amazon’s affiliate fees are (fortunately) a very small part of the income that courses into Casa PG. If Amazon ended its affiliate program tomorrow, even a highly-observant individual would not be able to perceive any change in Casa PG or in the least-organized realms thereof where PG pursues the Dark Arts of law and blogging. Stacks of paper would continue to mysteriously materialize and procreate on PG’s desk without abatement.
And, lest anyone fail to understand, hashtags that should satisfy the idiocracy at the FTC:
Blackbeard went unmentioned in Tuesday’s arguments in Allen v. Cooper. But the justices plundered North Carolina’s argument that it enjoyed sovereign immunity from suit for damages for copyright infringement.
Representing petitioner Frederick Allen, who sued North Carolina for infringing his copyrights in photographs and videos documenting the salvage of artifacts from Blackbeard’s sunken flagship, Derek Shaffer used his two-minute opening to argue that when “states infringe the exclusive rights that Congress is charged with securing, Congress can make states pay for doing so.” The intellectual property clause of Article I Section 8 of the Constitution provides an “express constitutional mandate for Congress to protect specified private property rights against any and all intrusion,” thus “securing” exclusive rights against “all comers, exclusive against the world, including the government and including states.” Congress can fulfill that mandate only by abrogating sovereign immunity by statute and subjecting states to suit for their infringing conduct.
. . . .
North Carolina Deputy Solicitor General Ryan Park argued on behalf of the state. Park maintained that the Constitution preserves state sovereignty unless there is “compelling evidence that the states surrendered it when they ratified a particular constitutional provision.” Allen failed to identify any historical evidence that anyone at the founding contemplated damages lawsuits against states for copyright infringement. According to Park, state sovereign immunity limits congressional authority to expose state treasuries both to expansive liability going far beyond the due process clause and to the Copyright Remedy Clarification Act’s “exorbitant” financial remedies of up to $150,000 per infringement.
Kavanaugh and Justice Stephen Breyer questioned Park about the possibility of multiple, rampant state uses of copyrights for which the authors receive nothing, which cannot be squared with a grant of exclusive rights. Park argued that the ordinary remedy for a state violation is an injunction, which Breyer said does nothing for an infringement that occurred yesterday. Park responded that a plaintiff can bring a direct constitutional claim for truly intentional or deliberate infringement for which no alternative remedy is available—because the copyright violation would constitute a due process violation, the statutory remedy would be congruent and proportional as applied to that case. Ginsburg suggested that this case “sounds pretty intentional to me”—North Carolina was alleged to have infringed, potential litigation was settled, then North Carolina resumed identical infringing conduct. Park argued that the case involves not infringement or a copyright violation, but a dispute over the scope of the license petitioners granted to the state in the settlement and a possible breach-of-contract lawsuit.
. . . .
Ginsburg suggested that there is “something unseemly” about a state’s being able to hold copyrights and sue for infringement of their copyrights but also to say, “we can infringe to our heart’s content and be immune from any compensatory damages.” She asked whether Congress could condition states’ copyright privileges on their agreeing to be subject to suit for infringement. Park said this would create an unconstitutional condition, although he agreed that Congress could remove the anomaly by denying states the right to hold copyrights.
On rare occasions, PG provides a window into some lawyer stuff.
For a little background on this particular window, for decades, a group of lawyers often described as the plaintiffs tort bar – specializing in representing injured people in their claims against (usually) large and wealthy defendants or the large and wealthy liability insurance providers from whom the defendants have purchased liability insurance coverage of various types – have been developing and (sometimes) sharing strategies for increasing the size of jury awards for their clients.
Since big-time personal injury plaintiffs attorneys almost always represent an injured individual or group of injured individuals on a contingency-fee basis, increasing the size of jury awards is definitely viewed as a good thing in the plaintiffs tort bar.
A brief definition of contingency fees – In the US in most federal and state personal-injury litigation, in lieu of the injured person(s) paying a flat fee or hourly fee to an attorney who is seeking compensation for their injuries, the attorney will often undertake representation on a contingency fee basis.
The usual form of the contingency fee agreement between attorney and injured client is that the client is not required to pay the attorney (or law firm) anything to undertake representation of the client. The only way the attorney will be compensated is by receiving a percentage of the amount the client receives if the attorney succeeds in obtaining financial compensation for the client.
For example, if an attorney and client agree that the attorney will receive 33% of the amount the defendant (or the defendant’s insurance company) pays the client for his/her/their injuries, whether as a settlement or via a favorable verdict at trial, and, either under a settlement agreement or a verdict after a trial, the injured client obtains $100,000 in compensation, the attorney will receive $33,000 for his/her/their services and the client will receive the balance, $66,000.
If the attorney is unable to generate any money for the client, either through settlement negotiations or at trial, the attorney receives no fee.
Some jurisdictions inside and many jurisdictions outside the US do not permit a contingency fee agreement or regulate them in some manner, usually based upon the idea that the defendant’s attorney should not be financially motivated to generate a larger judgment against the defendant by financial benefits accruing to the attorney.
From the standpoint of an injured person without significant financial assets, without a contingency-fee arrangement, that person will be unable to afford to hire a competent attorney to assist her/him/them.
The key to the success of the contingency fee system is that many defendants purchase insurance to cover the types of claims which a policyholder will face if the policyholder injures someone. It is not unusual, for example, for a state to require that each driver must maintain insurance coverage in a specified amount to compensate someone injured in an auto accident in which the driver is at fault. (States with no-fault auto accident liability laws similarly require drivers and/or vehicles be insured.)
Such auto liability insurance policies are widely available. A bank or other financial institution financing the purchase of an automobile will usually require the owner of the car to purchase insurance coverage.
If claim is made that is covered by insurance, under most insurance policies, the insurance carrier will pay to defend the lawsuit. Usually, the insuror will select and pay defense counsel.
Generally speaking, only a relatively small group of attorneys is involved in very large litigation arising from the injury of one or more individuals (from the standpoint of the plaintiffs bar, the more the merrier). If a seriously-injured person goes to her/his/their family lawyer, that lawyer is likely to connect the client with an attorney who specializes in large personal injury matters, acting on behalf of injured people.
If an insurance carrier sees a major claim of any sort coming down the road, the company is likely to tap one of a relatively small number of well-established attorneys with a good track record of winning cases, either through a favorable verdict at trial or by minimizing the amount the insurance company is required to pay in damages.
The big-time plaintiffs attorneys and the big-time defense attorneys are in a perpetual running battle to come up with new strategies of persuasion to lead the members of a jury one way or another. Part of what you’ll see below is a peek into this trial strategy battle.
The Reptile Strategy was devised by David Ball, a trial consultant who “guides plaintiff’s civil cases and criminal defense cases across the country” and Don Keenan, an experienced personal injury attorney exclusively representing injured people.
From the website for Don Keenan’s law firm:
The Keenan Law Firm does not represent insurance companies, and each personal injury attorney in our firm is dedicated solely to the representation of the injured or deceased person.
The Keenan Law Firm has handled cases in over 47 states and 5 foreign countries. A significant amount of our cases come referred from lawyers all over the country. We gladly accept case referrals from other attorneys.
The Keenan Law Firm has received 378 verdicts and settlements over $1,000,000 including 14 over $10,000,000 and one over $100,000,000.
The Reptile theory asserts that you can prevail at trial by speaking to, and scaring, the primitive part of jurors’ brains, the part of the brain they share with reptiles. The Reptile strategy purports to provide a blueprint to succeeding at trial by applying advanced neuroscientific techniques to pretrial discovery and trial.
The fundamental concept is that the reptile brain is conditioned to favor safety and survival. Therefore, if plaintiff’s’ counsel can reach the reptilian portion of the jurors’ brains, they can influence their decisions; the jurors will instinctively choose to protect their families and community from danger through their verdict. Thus, the focus of the plaintiff’s case is on the conduct of the defendant, not the injuries of the plaintiff. The jurors are not interested in plaintiff’s injury, even when severe, according to the theory. Rather, the only truly effective way to engage jurors is to demonstrate how the defendant’s conduct endangers the jurors and their families.
From Gallivan White Boyd, an insurance defense law firm:
In 2009, David Ball and Don Keenan published a book called REPTILE: The 2009 Manual of the Plaintiff’s Revolution (“REPTILE”). The $95 book is billed as a manual that teaches Plaintiff’s attorneys how to reduce tort reform’s impact on juries by using the jurors’ primitive safety and self-preservation instincts. For those who have not read the book, it begins with the premise that insurance companies, big business, et cetera, have convinced prospective jurors via tort reform propaganda campaigns that jury verdicts impact the economy in their community – that jurors walk into the courtroom with the understanding that jury verdicts threaten their basic survival. Keenan and Ball explain that jurors will disregard the facts and law to do whatever it takes to survive, and that tort reform has taken control of those survival-oriented decision making parts of the brain.
At first glance, it seems that the reptile strategy is a gimmick designed to bilk plaintiff’s attorneys out of $95; however, those who have faced the reptile strategy know that it can be dangerous. In fact, Keenan and Ball’s website boasts that the reptile strategy has been responsible for over $6 billion in verdicts and settlements. This article examines pertinent aspects of the reptile strategy and suggests two potential ways that civil defense lawyers can use reptile tactics to their advantage.
. . . .
In REPTILE, Keenan and Ball begin by providing the scientific background of the reptile strategy. They explain that Yale Medical School and National Institute of Mental Health physician and neuroscientist Paul D. Maclean developed a theory that the human brain can be divided into a three-part “triune” brain. See REPTILE at 13; see also Jay E. Gould, Triune Brain Concept . . . . The theory suggests the first part of the human brain that developed was the “proto-reptilian brain.” This part of the brain controls “feeding, fighting, and reproduction-the so-called Four F’s.” The photo-reptilian brain, or “reptile brain” as it is called in REPTILE, is associated with survival instincts and protecting one’s genes. In REPTILE, Keenan and Ball suggest that this part of the brain will override all other brain functions to ensure the survival of the genes. The triune brain theory suggests that humans evolved to develop a second part of the brain, the paleo mammalian brain or limbic system, which is responsible for emotion, learning, memory, and various other increased levels of brain function. The third step in the brain evolutionary process was the neomammalian brain or neocortex, which enhanced stimulus analysis, and added abilities such as language, planning, foresight, and hindsight. The reptile theory suggests that the reptile brain remains in control of the other two parts of the brain, and that human beings will always do what it takes to promote safety and eliminate danger, above all else. The reptile theory at its core suggests that if the jurors’ reptile brains can be controlled, so can the outcome of the trial.
Keenan and Ball believe that tort reform efforts during the 1990’s took control of the reptile brains of jury pools. Reason being, the stronger one believes his or her community to be, the safer he or she feels. Tort reform allegedly persuaded potential jurors that large civil lawsuit verdicts endangered the financial stability of the community, thus plaintiffs became a dangerous threat in the minds of potential jurors. Jurors now enter the courtroom with their reptile brains programmed to eliminate the danger to the community by returning a defense verdict (or a small verdict), regardless of the facts presented to them.
. . . .
One of the goals of the reptile strategy is to direct the jury’s focus to the total harm that could have happened, rather than the harm which actually happened. The strategy involves establishing “safety rules” that protect the public from harm and then showing that the defendant violated those rules. In order to make the jury care about the safety rule, the jury must be convinced that the rule protects the community, and by extension, the juror. A proper safety rule is broad and easy to understand. According to Keenan and Ball:
Some safety-rule violations are too specific to endanger the juror’s reptile. ‘A coal mining company is not allowed to turn the lights off while workers are in the mine’ applies only to the Reptiles of miners. But it becomes useful when positioned as a special case of a more general rule, such as, ‘A company must not needlessly endanger its employees’ or ‘A company is never allowed to remove a necessary safety measure.’ That connects it to everyone’s job.
A good reptile safety rule has six characteristics:
it must prevent danger
it must protect people in a wide variety of situations
it must be clear and simple
it must explicitly state what one must or must not do (e.g. drivers must travel at a safe speed)
it must have been easy for the defendant to follow (e.g. it is easy for the defendant to follow the steps of differential diagnosis
the rule must be one that the defendant has to agree with – or seem stupid, careless, or dishonest
The end goal is to show that the defendant chose not to follow a safety rule, and thereby endangered the community, and by extension, the juror (or someone the juror cares about). In theory, the juror’s reptile brain will then take over and will render a large verdict against the defendant to prevent the defendant from endangering the community in the future.
. . . .
The commentary suggests that witnesses should respond to broad questions regarding “needlessly endangering the public” by explaining that there are just too many undefined variables to answer such a general question definitively.
. . . .
As noted above, the reptile tactic involves establishing arbitrary safety rules which allegedly protect the public and then showing that the defendant broke those rules, thereby endangering the public. A defendant employing the reptile strategy on an affirmative defense will establish a simple safety rule that protects the public, and then show that the Plaintiff violated that safety rule, which endangered the public. Consider the following hypothetical:
John Doe is operating a piece of industrial equipment when it explodes, burning Doe severely, but no one else is injured. John Doe files suit, and Doe’s experts and the defendant’s expert agree that the explosion was caused by a loose fuel valve. It is undisputed that the loose fuel valve would have been discovered if Doe would have inspected it prior to the shift, and that tightening the fuel valve would have prevented the explosion. Doe’s employer told him he was responsible for performing a pre-shift inspection, but he was never instructed by his employer to specifically check to see if the valve was loose during the inspection. Doe’s employer did tell him that he needed to be familiar with the owner’s manual, and a label affixed to equipment directed him to the owner’s manual for instructions on how to inspect the machine. The Plaintiff claims that he did skim over the manual, but that he did not read the instruction regarding inspection of the valve at issue. The Plaintiff’s human factors expert says that the warning is buried in the manual, it is not color-coded correctly, etc. so the manual did not adequately instruct the Plaintiff regarding the inspection of the valve.
Obviously, in the hypothetical above, the defendant will want to show that adequate warnings were provided and that the Plaintiff’s failure to read the manual carefully is the true cause of the explosion. A reptile defense lawyer will engage the reptile brain of the jury by showing that the Plaintiff’s actions not only caused his injuries, but his actions also caused needless danger. Employing the reptile strategy, the defense may establish a safety rule and a violation of the safety rule as follows:
Mr. Doe, you would agree that it is never ok to needlessly endanger yourself or your co-workers?
And your employer gives you safety information which tells you how to avoid needless danger to yourself and your coworkers?
And the plant where you work has people from the community come in to look around every now and then – students, employees’ spouses, customers, etc.?
And you are never allowed to needlessly endanger visitors to the plant?
And the safety information your employer gives you is meant to protect visitors to the plant from danger as well, correct?
And you know that if you ignore safety information provided by your employer, you could endanger yourself and your coworkers, and any visitors?
So, you must not ignore that safety information?
And if that safety information is in writing when you get it, you should read it?
Part of the safety information that your company gives you when you are training tells you to inspect the equipment before your shift?
Because it is important to make sure the equipment is working properly before you operate it?
Because if the equipment is not working properly, you, your coworkers, or visitors could be endangered?
And there was a label on the equipment that said to read the entire operator’s manual, correct?
And the safety information your company gave you told you to read the entire operator’s manual for the equipment, correct?
And you admit that you did not read the section of the owner’s manual that told you to inspect the fuel valve?
“Greg,” a prospective client might ask me, “Where can I find a free online form to create my contract/document/will?”
“I don’t recommend doing that,” I would likely respond.
“But isn’t the democratization of the law something to celebrate?” they might retort. “Why are you against progress?”
Just to be clear, I’m not against the public having access to affordable and useful legal information (what do you think this blog is, after all?) and I’m very much in favor of people with genuine financial limitations having SOMETHING rather than nothing. So in a pinch, if you can’t afford a lawyer, a template document can be a useful tool.
. . . .
1. You don’t know what’s in them. The legalese in these forms can be confusing and because of that, the form might contain language that isn’t applicable to your situation, or worse, is actively harmful to your interests. I’ve seen first hand how badly this can go… several years ago I had a client who used an online form to license his work to another party. But because he selected the wrong form, he accidentally ended up selling the rights to his work outright and wasn’t able to get them back. There’s a reason lawyers spend so much time and money on schooling and then years working for other attorneys… to build up the knowledge base and skills needed to understand how to read and write these documents.
. . . .
3. They can’t anticipate what you don’t know to look for. Let’s be honest. You don’t know what you don’t know. That’s why you hire a professional anytime something bad happens with your car, your house, your lower back, etc. Using a form that can’t anticipate your knowledge level means you could be leaving money on the table you didn’t know you had a right to; it could leave out important clauses that protect your interests and include clauses that harm you; it could result in ambiguous terms that neither party can understand; it could force you into arbitration when you’d rather use the court system. You may end up worse than you started because you didn’t know what to look for.
PG will share a story from one of his past legal lives when he handled much different legal matters than he does now. He believes it illustrates an extreme case of what can happen when a well-meaning person creates a legal document he/she doesn’t fully understand.
A woman named Lodima Long had an attorney (not PG) prepare a will for her. Perhaps it was because she had worked hard all her life and/or had outlived three husbands, she had a lot more money and property than most of the other people in her family. Lodima was a widow with no surviving children. Her will allocated her money and property among a wide variety of different relatives.
Lodima signed the will and it was properly witnessed and notarized. Lodima left the attorney’s office with her valid will in her purse.
Several months thereafter, Lodima decided to take an extended trip to visit a large number of her relatives. She took her will with her.
Apparently, as she visited various of her relatives, she decided to make changes in how her estate was to be divided. Lodima started crossing out parts of her will and making changes to it. In pencil. The resulting document was full of deletions, additions, erasures, lines, arrows and tiny comments.
After a few months, Lodima returned home with her will. She then proceeded to die.
A couple of Lodima’s extended family members discovered the will among Lodima’s belongings after the funeral. They were named in the will. They read the will. A period of time passed. The family members brought the marked-up will to an attorney to start the probate process.
By the time PG was hired by a handful of Lodima’s heirs, her probate had been a contested proceeding for 13 years. About 15-20 attorneys were involved (the number had varied from time to time during the pendency of the probate because some heirs had died and left heirs of their own and a couple of the original attorneys plus the attorney who drafted the original will, had also died.).
PG managed to settle the matter by the simple method of asking that the judge set the case for trial. Since nobody (including the judge) was at all anxious to attempt to prepare for what was certain to be a long and messy trial with a lot of witnesses calling each other liars, the judge summoned the sheriff and several deputies to the courtroom. With muscle at hand, the judge threatened to sequester all the parties and their attorneys in the courthouse until a settlement was reached, no matter how long it took. The various and sundry parties then managed to agree on a settlement that parceled out Lodima’s estate to her various and sundry heirs in a manner that was definitely not consistent with Lodima’s intentions, whatever they might have been.
The word “privacy” appears nowhere in our Constitution, but privacy lies at the root of our constitutional republic. At least that is how John Adams saw it on the day before America declared independence. Writing to his wife, Abigail, on July 3, 1776, Adams observed that the path to independence traced back to “the year 1761,” specifically to “the argument concerning writs of assistance.” Fifteen years before, Adams witnessed a trial in Boston challenging British searches and seizures licensed by broad “writs”—warrants—issued by the king. He even memorialized lawyer James Otis’s case against them: “One of the most essential branches of English liberty is the freedom of one’s house,” Adams summarized at the time. “A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle.”
The argument failed in court but prevailed three decades later in the U.S. Constitution—more specifically, in the Fourth Amendment, which protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Other amendments protected the right not to open one’s home for military troops and the right not to testify against oneself.
Nearly two centuries later, as University of Alabama history professor Lawrence Cappello relates in “None of Your Damn Business,” the Supreme Court concluded that these specific rights implied a much more general “right of privacy.” As the court explained in infamously foggy terms, “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” In the case that prompted these words, Griswold v. Connecticut (1965), a right of privacy guaranteed married couples’ access to contraceptives. A half-century of further emanations and penumbras followed: a right to abortion, a right to same-sex marriage.
. . . .
Mr. Cappello brings together several aspects of “privacy” in American life and law to show how changing technologies and cultural values shaped our expectations of privacy. He reminds us that privacy involves our relationships with corporations—and with one another—as well as our relationship with the government. These themes are exemplified by Louis Brandeis, who before joining the Supreme Court co-wrote “The Right to Privacy,” an article focused not on government surveillance but on the acts of “the too enterprising press, the photographer, or the possessor of any other modern device for recording or reproducing scenes or sounds.” Brandeis argued for a personal right of privacy against them, which came to be known as the right “to be let alone.”
. . . .
Mr. Cappello credits Brandeis with devising “an entirely new approach” by “shifting the emphasis from where an alleged wrong took place . . . to how it affected an individual.” Brandeis lost in Olmstead, but the Supreme Court did adopt a more Brandeisian approach in Katz v. U.S. (1967), overturning a handicapper’s conviction because the police did not obtain a warrant before tapping a phone booth; the Court reframed the issue in terms of what would come to be called “reasonable expectations of privacy.”
Plaintiff sued TripAdvisor and some related defendants (including Viator, a company that TripAdvisor acquired) for a number of torts arising from an ATV accident that plaintiff had while on a tour in Mexico that she had booked online through defendants’ website. Defendants moved to dismiss, or in the alternative, to transfer the matter to federal court in Massachusetts based on the forum selection clause found in the Terms and Conditions that plaintiff agreed to when she booked the tour. The court granted the motion to transfer.
To purchase the tour, plaintiff was required to click on a “Book Now” icon, directly under which the following message was located: “[b]y clicking Book Now and making a reservation, I acknowledge that I have read and agree to be bound by Viator’s Terms and Conditions and Privacy Statement.” The phrase “Viator’s Terms and Conditions” appeared in blue underlined text, in the form of a hyperlink, which directed the consumer to the website’s Terms and Conditions.
Viator’s Terms and Conditions included a forum selection clause, which, in relevant part, provided:
[T]his agreement is governed by the laws of the Commonwealth of Massachusetts, USA. You hereby consent to the exclusive jurisdiction and venue of courts in Boston, Massachusetts, USA and stipulate to the fairness and convenience of proceedings in such courts for all disputes arising out of or relating to the use of this Website. You agree that all claims you may have against Viator, Inc. arising from or relating to this Website must be heard and resolved in a court of competent subject matter jurisdiction located in Boston, Massachusetts.
The court found that plaintiff had agreed to the forum selection clause, and that the clause was enforceable. In determining whether plaintiff was bound by the clause, the court was guided by “fundamental precepts of contract law.” More specifically, under New Jersey law, “[a] contract term is generally binding if the contract has been mutually agreed upon by the parties, is supported by valid consideration, and does not violate codified standards or offend public policy.” W. Caldwell v. Caldwell, 26 N.J. 9, 24-26 (1958).
Plaintiff had argued that the Terms and Conditions amounted to an invalid browsewrap agreement, because she neither received reasonable notice of their existence, nor provided an unambiguous manifestation of assent.
Amazon CEO Jeff Bezos could break up his own company before regulators do so themselves, Atlantic writer Franklin Foer predicts.
Foer, who wrote the Atlantic’s November cover story entitled “Jeff Bezos’s Master Plan,” said in an interview Tuesday on CNBC’s “Squawk Box” that people close to the CEO believe spinning off Amazon Web Services from the e-commerce business “would be the obvious thing for [Bezos] to do in the face of this.”
“I think that eventually Bezos, who is seeing around corners, is going to break up his own company,” Foer said. “AWS exists as its own fantastically profitable business. There’s no reason that it needs to be connected to Amazon the e-retailer. And as he looks at what’s happening in politics, where there’s this increasing bipartisan consensus that Big Tech is a problem, I’m pretty sure he’s going to say, ‘OK fine.’”
. . . .
AWS accounted for 13% of Amazon’s total revenue in the second quarter of 2019, but a whopping 52% of its $3.1 billion in operating income for the quarter.
PG says antitrust investigations can and have hamstrung lots of large, successful companies, even if they don’t result in sanctions.
The antitrust investigations and suits against Microsoft in 1994 and 1998 arguably prevented MS from exploiting internet opportunities that were taken by others. Google Chrome displaced Internet Explorer as one example. Ironically, during its early years, Microsoft benefited from antitrust lawsuits against IBM in the 1980’s.
If Bezos can avoid serious antitrust actions by voluntarily breaking up the company, the minified-Amazons might continue the company’s success free of any throttling constraints.
There’s been a lot of debate about the First Amendment recently. For example, should there be an exception to the First Amendment for hate speech? Some discussions have revolved around potential conflicts between various amendments. What is the relationship between the First Amendment and the Equal Protection Clause of the Fourteenth? What is the relationship between the First and Second Amendments? These are all issues that have been discussed and debated recently, but what about the First Amendment and copyright law?
The First Amendment, of course, protects our right to freedom of speech and expression. The First Amendment clearly states that “Congress shall make no law… abridging the freedom of speech, or of the press.”
Copyright, which is also grounded in the Constitution, gives the rightholder an exclusive legal right over his work, allowing him to restrict access to it, prevent others from using or reproducing it. If this were all there was to copyright law, a rightholder could certainly use his exclusive rights to block criticism and discussion, stifling free speech. Without proper safeguards, copyright law could conflict with the right to freedom of speech by giving the rightholder censorship rights.
For example, a blogger on gender equity might try to make a point about the portrayal of women in audiovisual media. Without the ability to use a clip from a film or music video, the writer would be less effective in illustrating her point. Without quoting dialogue or lyrics, we would just have to take the blogger’s word for it that a particular genre, movie or song is misogynistic.
Imagine what would happen if exclusive rights to copyright protection actually did conflict with, and trumped, the right to freedom of speech? Would journalists effectively be able to report on political speeches without fear of an infringement lawsuit? As my criminal law professor said on a daily basis, words have meaning. Paraphrasing and summarizing what someone has said may not adequately get the point across. Exactly what did President Trump say about the violence in Charlottesville? The phrase “on many sides” was plastered across news headlines for days
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Ultimately, there are fewer tensions between the copyright law and the First Amendment than one might think, particularly when we look to the purpose of both. While copyright gives the rightholder a “limited time” monopoly, the purpose of the intellectual property system, grounded in the Constitution, is “to promote the progress of science and useful arts.” Thus, its purpose — even as it grants monopoly rights — is to benefit the public.
The goals of the First Amendment are not as clearly laid out within the text itself, but have been the subject of extensive discussion. Of course, one goal is to protect our democracy by allowing an exchange of ideas through unconstrained speech. Access to a range of opinions and views helps inform policy positions of government officials and voters deciding for whom they should cast their ballots, as well as ideally enabling the search for truth. Access to information and freedom of expression not only protects democratic ideals, but is also essential to art and culture.
Ultimately, copyright and freedom of speech promote the same goals, seeking to further the public interest through creation and dissemination of speech, expression, and works. Indeed, the Supreme Court confirmed in Twentieth Century Music v. Aiken,
The immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.
When we see that they serve the same purpose, albeit through different means, we can seek to resolve any potential tensions by looking to see whether that purpose is being served.
While copyright provides an author exclusive rights and could be used as a censorship tool, it also includes a number of limitations and exceptions, the most significant one being fair use. The fair use doctrine has a long common law history, with the first United States case decided in favor of the user in 1841. Eventually, this doctrine was codified in the 1976 Copyright Act and allows a user to use existing works without permission, under certain circumstances and for various purposes including, for example, criticism, comment, new reporting, teaching, research, and scholarship and aids in ensuring that copyright serves the public good.
Justice Ginsburg called the fair use doctrine a “built-in free speech safeguard.” It prevents the right holder from possessing unlimited freedom to control all uses of their works and is indeed a “safety valve” for the First Amendment.
“I’ll be back” said the author of the original Terminator movie. Gale Ann Hurd, the author of the original Terminator film starring Arnold Schwarzenegger, has informed Skydance Media that it is terminating the grant of copyright to the work and seeks to reclaims the rights…but how?
Copyright law is complicated and the ins and outs can be incredibly confusing even to people who claim to specialize in the field. When someone creates a work (painting, screenplay, or photograph) they are deemed the owner of the work. There is one exception, if it is a work made-for-hire. A work made-for-hire comes in two forms: 1) you are paid by someone to create a work for them; or 2) the work is create in the normal course of business for an employer.
First, someone can be commissioned to create a work for someone else, like I am paying you to take a photograph of me and I will own the photograph. As long as the agreement is in writing before the photograph is taken, I own the rights instead of the photographer.
Second, if you create something in your everyday work life for your employer, they own it. For example, if I am a salaried reporter for the New York Times, the Times owns the copyright to any story that I may publish.
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If a work is a made-for-hire the original creator cannot ever regain the rights to the work. This is how many movie scripts and other stories are created. However, there is an exception.
If I independently create a work, meaning not as a work made-for-hire, I am the owner of the rights and I can do whatever I want with the work including transferring the rights to someone else. However, copyright law provides that after 35 years following publication and author can terminate the transfer and regain the rights to the original.
Gale Ann Hurd was the author of the Terminator film may back in the 80’s.
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In 1984, the Terminator film was published and here we are 35 years later and, according to the Hollywood Reporter, Hurd has informed the studio who now owns the film, Skydance Media, that is terminate the transfer of rights. Also terminated is the right to make derivative works such as sequels to the original Terminator. The author must give two years before the termination takes effect and then all such exploitation of the work must cease in any way.
So what does this all mean for movie studios? Utter chaos perhaps as the loss of rights to make valuable sequels and prequels or just another settlement negotiation. Skydance will likely make Hurd a large monetary offer to retain the rights to the valuable franchise.
Unlike most countries, the United States copyright law provides musicians and songwriters an opportunity to regain ownership of works that they transferred to outside entities, such as record labels and music publishers. Congress established this “second bite at the apple” for authors of creative works after a period of 35 years. “Termination of transfer” is not automatic, however, and there are certain steps creators must take to regain the rights to their works. This guide aims to shed more light on the process for the benefit of musicians and songwriters who are eligible to reclaim ownership of their creations.
As you read this guide, it is important to keep in mind that there are two copyrights in a piece of music: the composition copyright (think notes on paper) and the sound recording copyright (think sounds captured on tape or hard drive). Songwriters often enter agreements with publishers to “grant” their songwriting copyrights in exchange for up-front payment and/or the promise of circulation in the marketplace. Musicians (and bands) transfer their sound recordings to labels for similar reasons, including distribution, promotion and marketing. Authors of both copyrighted works can reclaim the copyrights to their original creations after a period of 35 years.
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Why do creators have this right?
It is often difficult to determine the worth of a creative work at the time of its creation. Because the value is unknown, musicians and songwriters will not be in the most advantageous position when negotiating what labels and publishers will pay for commercially exploiting their work. Thus, Congress made a policy decision to give authors an opportunity to regain ownership of their copyrights and entertain new, potentially more lucrative licenses for their work. Creators may also choose to re-transfer their copyright(s) under more favorable licensing terms. Consider also that changes in the marketplace can increase the range of potential uses for a piece of music, which may not have existed at the time of its creation. For example, few could have anticipated the explosion of console video games and “synch” opportunities. In addition, artists can now “go direct,” selling music directly to fans without the high barriers to entry common to the historic marketplace. There are surely new platforms for music that have yet to arrive, so it is important that artists have the ability to directly participate in revenue streams generated by potential new uses.
Section 203 of the Copyright Act permits authors (songwriters and recording artists) to terminate deals that they made transferring or licensing their copyrights after 35 years. Meaning, if you transferred your recording or song to a record label or publisher at the beginning of your career or licensed certain rights, you may be eligible to regain ownership or terminate the licenses after this period. Artists may have more leverage than they did at the time that they signed away their copyright(s), and using this leverage, artists could re-grant their copyrights in a better deal or recapture ownership for the purpose of licensing directly.
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Generally, any type of transfer or license that authors make with their copyright(s) can be terminated. This includes assignments (even such grants that purport to give someone else power over your copyright forever!) The grants that you can terminate apply only to transfers of copyrights; trademarks and other “related” non-copyright rights are not affected or terminable (e.g., if you transferred the trademark in your band name to your label, it will retain ownership of the trademark).
Software crashes all the time, and the law does little about it. But as Bryan H. Choi notes in Crashworthy Code, “anticipation has been building that the rules for cyber-physical liability will be different.” (P. 43.) It is one thing for your laptop to eat the latest version of your article, and another for your self-driving lawn mower to run over your foot. The former might not trigger losses of the kind tort law cares about, but the latter seems pretty indistinguishable from physical accidents of yore. Whatever one may think of CDA 230 now, the bargain struck in this country to protect innovation and expression on the internet is by no means the right one for addressing physical harms. Robots may be special, but so are people’s limbs.
In this article, Choi joins the fray of scholars debating what comes next for tort law in the age of embodied software: robots, the internet of things, and self-driving cars. Meticulously researched, legally sharp, and truly interdisciplinary, Crashworthy Code offers a thoughtful way out of the impasse tort law currently faces. While arguing that software is exceptional not in the harms that it causes but in the way that it crashes, Choi refuses to revert to the tropes of libertarianism or protectionism. We can have risk mitigation without killing off innovation, he argues. Tort, it turns out, has done this sort of thing before.
Choi dedicates Part I of the article to the Goldilocksean voices in the current debate. One camp, which Choi labels consumer protectionism, argues that with human drivers out of the loop, companies should pay the cost of accidents caused by autonomous software. Companies are the “least cost avoiders” and the “best risk spreaders.” This argument tends to result in calls for strict liability or no-fault insurance, neither of which Choi believes to be practicable.
Swinging from too hot to too cold, what Choi calls technology protectionism “starts from the opposite premise that it is cyber-physical manufacturers who need safeguarding.” (P. 58.) This camp argues that burdensome liability will prevent valuable innovation. This article is worth reading for the literature review here alone. Choi briskly summarizes numerous calls for immunity from liability, often paired with some version of administrative oversight.
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The puzzle, then, isn’t that software now produces physical injuries, thus threatening the existing policy balance between protecting innovation and remediating harm. It’s that these newly physical injuries make visible a characteristic of software that makes it particularly hard to regulate ex post, through lawsuits. In other words, “[s]oftware liability is stuck on crash prevention,” when it should be focused instead on making programmers mitigate risk. (P. 87.)
In Part III, Choi turns to a line of cases in which courts found a way to get industry to increase its efforts at prevention and risk mitigation, without crushing innovation or otherwise shutting companies down. In a series of crashworthiness cases from the 1960s, courts found that car manufacturers were responsible for mitigating injuries in a car crash, even if (a) such crashes were statistically inevitable, and (b) the chain of causation was extremely hard to determine. While an automaker might not be responsible for the crash itself, it could be held liable for failing to make crashing safer.
Wright [Medical Technology] is a medical device developer, manufacturer, and distributor; its products include surgical plates and other instruments used to repair bones in the foot and ankle areas. Paragon, founded by three former high-level Wright employees, makes competing orthopedic plate systems and other devices used to repair bones in the foot and ankle. Trade secret claims ensued.
Also, Paragon allegedly promoted a “cadaver course” intended to teach surgeons to perform procedures of the foot and listed Dr. Christopher Hyer, a Wright “Key Opinion Leader” (KOL, a common term for a medical influencer), as “anticipated course faculty” on the course’s promotional material. It also allegedly engaged in unfair competition by submitting a patent application that was nearly identical to a patent application that Wright had filed a month prior and by offering several KOLs equity or ownership interests in Paragon, leading to the KOLs using Paragon products in surgical procedures without disclosing their interests.
As to false advertising, Paragon argued that predictions (here, about who would teach the course) couldn’t be false advertising. But Wright alleged that there was never any consent for the use of the doctor’s name in advertising, and that Paragon was aware of this lack of consent, which was enough. (But that reasoning has to be incomplete: did Wright allege that Paragon never even asked the doctor to teach the course/that he turned them down before they started promoting it? If he had agreed to teach the course, even without specifically consenting to use of his name in advertising the course, it shouldn’t be false advertising, though the right of publicity result might be different (given the First Amendment-implicating nature of the course, though, it might not).) Anyway, the rule is that, while “[a]n honest or sincere statement of belief about a future event is not actionable,”…a statement known at that time by the speaker to be false, or a statement by a speaker who lacks a good faith belief in the truth of the statement, may constitute an actionable misrepresentation.”
PG says it’s a generally a risky idea to use someone’s name in an advertisement without their consent. Presumably, the use of the name is designed to show the advertiser in a better light because of the advertiser’s association with the individual.
If someone complains about such a use, such a complaint may gain wider attention than the original promotion/advertisement did and tend to create a negative public image of the advertiser as dishonest or prone to make statements that can’t be relied upon.
The OP reminded PG of the tort claim called False Light. From Wikipedia:
In law, false light is a tort concerning privacy that is similar to the tort of defamation. The privacy laws in the United States include a non-public person’s right to protection from publicity which puts the person in a false light to the public. That right is balanced against the First Amendment right of free speech.
False light differs from defamation primarily in being intended “to protect the plaintiff’s mental or emotional well-being”, rather than to protect a plaintiff’s reputation as is the case with the tort of defamation and in being about the impression created rather than being about veracity. If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.
False light privacy claims often arise under the same facts as defamation cases, and therefore not all states recognize false light actions. There is a subtle difference in the way courts view the legal theories—false light cases are about damage to a person’s personal feelings or dignity, whereas defamation is about damage to a person’s reputation.
The specific elements of the tort of false light vary considerably, even among those jurisdictions which do recognize this Tort. Generally, these elements consist of the following:
A publication by the defendant about the plaintiff;
made with actual malice (very similar to that type required by New York Times v. Sullivan in “Defamation” cases);
which places the Plaintiff in a false light; AND
that would be highly offensive (i.e., embarrassing to reasonable persons).
The bottom line from a general business and legal standpoint is to not use a person’s name without his/her consent. One of the major exceptions to the general rule would be if someone who is well-known (a “public figure”) made a statement about a product or service in public where he/she knew or should have known others besides her/his immediate companions would be likely to hear it.
To stay out of online spats and maintain a good relationship with a friend or someone who may influence others with respect to your product/service, ask them for permission to quote them in your promotions and/or advertising. If they say “yes,” send them a nice thank you email or text thanking them for their generosity and helpfulness. And keep a copy of your thank you for your records.
If the decision to issue a preliminary injunction against Audible’s “Captions” program comes down to fair use, Audible may be in trouble.
Over the course of a 90-minute hearing on Wednesday, federal judge Valerie Caproni appeared thoroughly unmoved by Audible’s defense of its Captions program, and highly skeptical that Audible’s plan to scroll snippets of computer generated text alongside audiobooks in its app should be called anything other than what it is: reading.
Opening the day’s arguments, the plaintiff publishers’ attorney Dale Cendali told the court that Audible’s Captions program was “quintessential” copyright infringement, and was quickly engaged by Caproni, who questioned whether the “clunky” experience of Captions really competed with reading a book. Cendali, well prepared for the question, responded that Captions didn’t need to be “a substitute” for a book for it to be harmful. Captions “provides a reading experience,” Cendali stressed, “saying it is something other than that just doesn’t make sense.”
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Cendali hit all the major points in the publishers’ complaint, finding a mostly receptive audience in Caproni. Captions is not transformative, she argued, and it is commercial in nature. Despite its “public benefit” argument, Audible is in fact seizing what should be a negotiated right to gain a competitive advantage over its competitors, Cendali stressed. If allowed to go forward, Captions would harm the market for books, e-books, and immersion reading; weaken rightsholders’ ability to license works in other markets; “devalue and cheapen” those rights by offering the feature as a free add-on; and the poor quality of the Captions program would cause reputational harm to authors and publishers who might be associated with a shoddy program, their works wrested from their control without permission.
The last point seemed to especially hit its mark with Caproni as an example of the kind irreparable harm—distinct from the market harm also in play—required to win a preliminary injunction. “As much as there might be a moral rights issue [in U.S. copyright law] this is a moral rights issue,” Cendali argued. “The damage this does would be impossible to measure. Money damages cannot make up for this. It affects the entire industry. This is a sea change, what they are trying to do. That’s why you have all these publishers, authors, and the agents here together. That shows you how dramatic it is.”
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Captions is designed to work alongside an audiobook, not “divorced” from it, [Amazon’s attorney] argued, and it does not provide a reading experience.
“What do you mean it’s not a reading experience?” Caproni interjected. “It’s words.”
What followed was a strained back and forth about what constitutes reading a book, with Reisbaum suggesting that seeing words as you listen to them is, well, something else.
“The fact that you can see the words doesn’t make it a book,” Reisbaum insisted at one point, trying to convince the judge that Captions is an enhanced audio experience, not a book experience—users couldn’t flip forward or back at their own pace, for example, nor could the text be stored, or shared, or skimmed. The experience was designed to increase comprehension of the “words” that Audible customers have paid for. Caproni didn’t appear to be buying it. “They paid to have the words read to them,” she pointed out.
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Cendali reiterated that none of the publishers’ agreements granted Audible the right to generate and distribute text.
But that’s a conclusion not supported by evidence before the court, Reisbaum insisted. The parties have acknowledged that they have valid license agreements. Captions is a program to be used with that licensed content. Without seeing those agreements, and where Audible is alleged to have breached them, how does the court know that speech-to-text is not covered under those licenses?
But perhaps the most surprising moment came when Caproni realized that Captions had not launched, and that a launch was not imminent. Why was she being asked to grant a preliminary injunction?
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The publishers strongly protested. “We beg you to rule on the motion,” Cendali pleaded with the judge, saying that the uncertainty surrounding the Audible program was already impacting the publishers, harming their ability to do other deals. Caproni replied that it was only a preliminary injunction at stake, that there would still be uncertainty even if she granted it. Why not get right to trial and resolve the issue?
“They can’t just do a head fake,” Cendali said referring to Audible’s still unannounced launch date, adding that not ruling on the motion would give Audible “a get out of jail free card.”
“It’s not a get out of jail free card,” Caproni responded. “I don’t have any get out of jail free cards. What I have is a chance card,” she said, pointing out that the publishers could possibly lose the motion. Caproni reserved ruling for a later date.
This week, in a New York district court, one of music’s least sympathetic characters, the Brooklyn rapper Tekashi 6ix9ine, took the stand to testify against alleged members of the Nine Trey Gangsta Bloods, the gang with which he associated himself. The rapper, whose real name is Daniel Hernandez, became a star witness, pointing out gang members who appeared in his music videos, explaining gang signs, and detailing the hierarchy of Nine Trey and its alleged leaders. At one point, prosecutors asked him about the lyrics for his hit song “GUMMO,” and whether the words included any threats against rivals. “It’s a song towards, like, somebody who I didn’t get along with,” the rapper said. “I don’t know. I thought it was cool at the time.”
It’s a cautionary tale; 6ix9ine’s outlandish antics rocketed his music up the charts, but he thought he needed street clout. His efforts to skirt one hip-hop faux pas—being a poser—crash-landed him into another: snitching. And, in doing so, he had to confirm what many had already figured out: nothing about his persona or his lyrics was authentic, which cast a light on the disconnect between the optics of hip-hop music and reality. The independent journalist Matthew Russell Lee reported on Twitter that 6ix9ine claimed he was never initiated into the gang, but he had an arrangement to “keep making hits and giving financial support,” and, in return, he got his “career, credibility, protection, all of the above.”
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The extraordinary confession of 6ix9ine comes on the heels of several trials involving high-profile rappers, such as those of the Texas rapper Tay-K, the Florida rapper YNW Melly, and the California rapper Drakeo the Ruler, where rap videos and lyrics have been introduced into the courtroom. Andrea Dennis, a professor at the University of Georgia School of Law and the co-author of the forthcoming book “Rap on Trial: Race, Lyrics, and Guilt in America,” described how law enforcement weaponizes rap lyrics to convict and incarcerate rappers, a legal assault that is unique to hip-hop. “We have searched widely, and, based on our research, rap is the only fictional art form treated this way,” she said. “No other musical genre and no other art is used in the same way or to the same extent.”
In April of 2017, the rapper Tay-K was under house arrest and awaiting trial, in Texas, for capital murder after his involvement in a 2016 robbery that left one person dead. He cut off his ankle monitor and fled the state, evading authorities for three months; he was arrested in New Jersey, in June, and brought to trial in July. The rapper’s music, particularly his single “The Race”—which, as its title suggests, was built around his status as a fugitive (and some otherwise cliché shit-talk)—was not really needed as evidence in the courtroom. Though he pleaded not guilty to the murder charge, Tay-K and his co-defendants had already taken deals that confirmed his role in the robbery. Nevertheless, during sentencing, prosecutors introduced the video and lyrics for “The Race,” along with the cover of his EP, #LivingLikeLarry, which depicts the then sixteen-year-old rapper holding a gun. The goal, it seems, was to dehumanize the rapper in the eyes of a jury through the use of his music.
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In many of these cases, an artist’s very participation in hip-hop is painted as a moral shortcoming that suggests a propensity for real-world violence and degeneracy. One Louisiana judge went so far as to tell the perpetually troubled rapper YoungBoy Never Broke Again, “Your genre has a lot to do with the mindset people have. Your genre has normalized violence.”
PG has posted items about the proposed CASE legislation. While virtually any law can be abused, he thinks this legislation can help authors who are afflicted by small-time copying of their work.
From the Executive Director of the Authors Guild via Publishers Weekly:
Copyright law is the backbone of the publishing industry and the lifeblood of writers and other creators. It puts food on the table and pays the rent. It allows an author to write the next book or article, the photographer to set up the next shoot, the songwriter to keep writing music. The internet has made it easier for writers, composers, filmmakers, photographers, designers, and other creatives to distribute their work to the world—but it also makes it easier to steal or exploit others’ creative works.
Today, the vast majority of individual and small business copyright owners do not have the ability to enforce their copyrights. Copyright claims can only be brought in federal court, and such litigation generally costs hundreds of thousands of dollars. This is true even if the copyright owner simply seeks a reasonable license fee of a few hundred or thousand dollars. Such a system is absurd. A bill to create a much more sensible alternative to federal litigation has been working its way through Congress and promises to make copyright meaningful again for the millions of individuals and small businesses whose welfare depends on it.
The Copyright Alternative in Small-Claims Enforcement (CASE) Act would create an administrative tribunal within the U.S. Copyright Office to handle small copyright infringement cases. It would provide a streamlined, less formal process than federal court and would be drastically cheaper and more efficient. The parties would not need to hire attorneys, and all proceedings would be conducted remotely. To ensure impartiality, the Librarian of Congress would appoint a three-“judge” panel, with at least two of the panelists possessing previous experience representing a diversity of copyright interests. To address constitutional concerns, the process would be entirely optional for both parties.
With so many threats staring down 21st-century creators—many of them enabled by the digital transformation—a small claims court for copyright disputes is needed more than ever. Take book authors, for example. According to a recent Authors Guild survey, writing-related earnings plummeted to a median of $6,080 in 2017—down 42% since 2009. Full-time U.S. authors, meanwhile, earned a median of only of $20,300 from their writing. That’s well below the federal poverty line for a family of three or more. Over half of the authors surveyed reported earnings from their writing that were below the poverty line for an individual. These are not your typical federal court litigants.
Picture this, someone with the Twitter handle of “John Doe 55” sends out a tweet saying that you are the most vile, disgusting person ever and have been involved in criminal conduct….and it’s not true. Any lawyer would tell you to sue that person for defamation. But, how do you sue someone hiding behind an anonymous avatar? A lawsuit about pot candy holds all the answers.
The Internet is filled with people hiding behind the privacy of their laptop. People go on social media and spew hate-filled lies, an eBayer sells counterfeit jeans, or a person bullies other people. It is easy to hide behind the anonymity of the Internet but there are always ways to try to figure out who the person is.
Speaking from experience, I once had to sue an anonymous person who created a fake Facebook account and pretended to be a corporate executive of a major fashion company. The biggest question, how do you find out who that person is and how do you serve them with the lawsuit. In my case, I had a Facebook profile name and that was it. I commenced the lawsuit naming “John Doe” as the defendant. (John Doe gets sued a lot that poor guy.) I then issued a subpoena to Facebook. A subpoena is a legal document requiring a party to produce documents or answer questions or face penalty. Back when I sued, privacy was not so much of a hot button issue and Facebook turned over all they had on the person who created the account….an email address…that’s it. So just give up, right? Nay. I then had to subpoena Microsoft, it was a Hotmail account, so help us. After the response from Microsoft, I learned that the name of “John Doe” and what country he resided in. The fashion company chose not to pursue the action any further because the Facebook account was taken down after the issuance of the subpoena.
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Picture this, someone with the Twitter handle of “John Doe 55” sends out a tweet saying that you are the most vile, disgusting person ever and have been involved in criminal conduct….and it’s not true. Any lawyer would tell you to sue that person for defamation. But, how do you sue someone hiding behind an anonymous avatar? A lawsuit about pot candy holds all the answers.
The Internet is filled with people hiding behind the privacy of their laptop. People go on social media and spew hate-filled lies, an eBayer sells counterfeit jeans, or a person bullies other people. It is easy to hide behind the anonymity of the Internet but there are always ways to try to figure out who the person is.
Speaking from experience, I once had to sue an anonymous person who created a fake Facebook account and pretended to be a corporate executive of a major fashion company. The biggest question, how do you find out who that person is and how do you serve them with the lawsuit. In my case, I had a Facebook profile name and that was it. I commenced the lawsuit naming “John Doe” as the defendant. (John Doe gets sued a lot that poor guy.) I then issued a subpoena to Facebook. A subpoena is a legal document requiring a party to produce documents or answer questions or face penalty. Back when I sued, privacy was not so much of a hot button issue and Facebook turned over all they had on the person who created the account….an email address…that’s it. So just give up, right? Nay. I then had to subpoena Microsoft, it was a Hotmail account, so help us. After the response from Microsoft, I learned that the name of “John Doe” and what country he resided in. The fashion company chose not to pursue the action any further because the Facebook account was taken down after the issuance of the subpoena.