NY Times fires back at defamation plaintiff with anti-SLAPP lawsuit

From Reuters:

The New York Times sued an anti-immigration author for the cost of defending itself against defamation in the first lawsuit of its kind under New York’s recently expanded “anti-SLAPP” law to protect critical speech.

The company is seeking unspecified fees spent fending off a 2020 lawsuit by Peter Brimelow, according to the company’s lawsuit, which was filed on Tuesday.

Brimelow had sued the company over five articles published between January 2019 and May 2020 that described him as being “white nationalist” and his VDARE.com website as being “animated by race hatred.”

Brimelow said the lawsuit does not have merit. “This lawsuit, like the five articles at issue in the original litigation, is but another effort to raise the stakes against dissident (but desperately needed) voices,” he said in an email.

The Times said in a statement it was the first anti-SLAPP case by the company which it called an important step in protecting itself from defamation claims.

One of the five articles that Brimelow alleged was defamatory was originally published by Reuters and republished by the Times. Brimelow did not name Reuters in his lawsuit.

The lawsuit by Brimelow, who has said he thinks the United States is a white nation, was dismissed in December 2020 soon after New York expanded its anti-SLAPP law, which is meant to deter lawsuits that are designed to punish defendants for speaking out on public issues.

SLAPP stands for “Strategic Lawsuit Against Public Participation” and then-Governor Andrew Cuomo said the expanded law would protect free speech by preventing wealthy interests from using the court to bully their opponents.

The Times lawsuit is the first in which a defendant in a SLAPP case turned around and sued the plaintiffs after getting the case dismissed, according to Daniel Novack, an attorney who specializes in media law.

Link to the rest at Reuters

SLAPP Suits

From The First Amendment Encyclopedia:

A SLAPP suit, or strategic lawsuit against public participation, is a civil claim filed against an individual or an organization, arising out of that party’s speech or communication to government about an issue of public concern. At the heart of the SLAPP suit is the petition clause of the First Amendment.

‘SLAPP’ was coined to recognize lawsuits filed to silence criticism

A SLAPP suit may look like a civil lawsuit for defamation, nuisance, interference with contract, interference with economic advantage, or invasion of privacy, but its purpose is different. About this purpose, Judge J. Nicholas Colabella wrote in Gordon v. Marrone (N.Y . 1992), “Short of a gun to the head, a greater threat to First Amendment expression can scarcely be imagined.”

Professors George W. Pring and Penelope Canan coined the term SLAPP suit in the 1980s after noting a surge in lawsuits filed to silence public criticism by citizens.

SLAPP suits arise when citizens erect signs on their own property, speak at public meetings, report violations of environmental laws, testify before Congress or state legislatures, or protest publicly, among many other similar acts, thereby prompting a party who claims to be aggrieved by such acts — often developers, merchants, and even public officials — to file suit.

SLAPP suits can interfere with First Amendment rights

The petition clause of the First Amendment guarantees, in part, “the right of the people. . .to petition the government for a redress of grievances.” The abridgment of this right distinguishes a SLAPP suit from other cases based on similar allegations.

Defendants in SLAPP suits who plead a defense of petition clause immunity will almost always succeed in having the claims dismissed. This immunity is often known as the “Noerr-Pennington immunity” based on its role in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc. (1961) and United Mine Workers v. Pennington (1965).

. . . .

Nonlegal effects of SLAPP suits remain

However, the nonlegal effect of SLAPP suits remains. A defendant in such a suit may succeed legally but lose nevertheless, having expended large amounts of time and money in defending against the lawsuit.

More damaging is the effect that such suits can have on those who have not yet been targeted: the desire to avoid being sued translates into a reluctance to participate in public debate.

Link to the rest at The First Amendment Encyclopedia

Authors Guild Signs Open Letter Supporting Anti-SLAPP Legislation

From The Authors Guild:

On June 23, the Authors Guild signed an Open Letter in Support of the Uniform Law Commission’s Uniform Public Expression Protection Act. This Act provides a framework for states to create their own laws against baseless lawsuits intended to keep individuals from exercising their First Amendment rights.

Thirty-two states already have laws against such suits, known as Strategic Lawsuits Against Public Participation, or “SLAPP,” suits.  However, the need for anti-SLAPP legislation everywhere is greater than ever given the recent increase in lawsuits meant to intimidate writers and publishers and stop them from publishing true information or opinions.

The open letter sets out six features of an effective anti-SLAPP law:

  1. Protection of all expression on matters of public concern. This would protect all speech on matters of public concern in any forum.
  2. Minimization of litigation costs by allowing defendants to file an anti-SLAPP motion in court. This would automatically halt discovery and all other proceedings until the court rules on the anti-SLAPP motion.
  3. Requiring plaintiffs to show they have a legitimate case early in the litigation. This would limit defendants’ legal fees until the court has had the opportunity to assess the validity of the lawsuit.
  4. The right to an immediate appeal of an anti-SLAPP motion ruling. Providing a defendant with the right to immediately appeal is important because lower courts can make an error in judgment. A successful appeal of a ruling denying an anti-SLAPP motion can avoid an expensive and stressful trial that would unduly burden a speaker’s First Amendment rights.
  5. Award of costs and attorney fees. This is a vital deterrent against SLAPP suits and protects a defendant from suffering financial devastation.
  6. Broad judicial interpretation of anti-SLAPP laws to protect free speech. The UPEPA and several state anti-SLAPP statutes instruct judges to read the statute broadly to protect free expression rights.

Link to the rest at The Authors Guild

Freelance Isn’t Free Act Passes in New York State

From Publishers Weekly:

After being introduced as a bill back in February by Democratic New York state senator Andrew Gounardes and assembly member Harry Bronson, the Freelance Isn’t Free Act has been passed in New York State. The law is intended to establish and enhance the rights of freelance workers including authors, journalists, and other writers on contract.

S8369 will build upon the law previously instated in New York City, expanding the protections for freelancers state-wide. The law is intended to “protect contract and freelance workers from wage theft by ensuring all freelancers receive appropriate contracts for their work, are paid in a timely manner, and have state support to recoup unpaid wages.”

The law requires employers to provide written contracts for all freelance workers and that those freelancers be paid by the agreed-upon date or within 30 days of the completion of the work. It also permits freelancers to collect double the agreed-upon fee if employers do not satisfy those requirements. The law also lowers the threshold for mandating additional financial remediation from contractors to contract workers, and makes the New York State Labor Department the regulatory agency for freelancers in the state.

Link to the rest at Publishers Weekly

Sixty-Two Percent of NY Freelance Workers Report Never Being Paid for Work Performed, Says New Survey

From The Authors Guild:

Survey also found that nearly 40 percent of freelancers have had difficulty paying rent or other bills due to nonpayment for services rendered

A survey by the Authors Guild, Freelancers Union, Graphic Artist Guild, American Society of Media Photographers, National Press Photographers Association, American Photographic Artists, and National Writers Union found that 62 percent of freelance workers based in New York had lost wages at least once in their career over an employer’s refusal to pay them. It also found that 51 percent of those who had lost income to nonpayment reported losing more than $1,000, and 22 percent reported losing more than $5,000.

The advocacy organizations conducted the survey as part of their efforts to persuade the New York State Assembly to pass the Freelance Isn’t Free Act (FIFA) (S8369/A9368) this session.

. . . .

If the bill passes, New York will become the first state in the nation to provide legal protections to freelance workers who live and work in New York state, as well as out-of-state freelancers who work for New York-based companies. Freelancers currently account for approximately 35 percent of the U.S. labor force and yet have none of the protections that employees have long had—even when doing the exact same job as an employee.

“In the five years since we helped secure the passage of New York City’s version of Freelance Isn’t Free, the law has helped freelancers recover $2,144,198 in owed compensation for their work. But freelancers don’t only work in New York City. From Buffalo to Albany, Montauk to Plattsburgh, companies use freelance workers for everything from manufacturing, construction, and warehouse work to website developers, writers and graphic designers, and they deserve the same legal protections as their NYC colleagues,” said Rafael Espinal, Executive Director of the Freelancers Union.

Additionally, the survey found that:

  • 91% of survey respondents reported experiencing late or overdue wages at least once in their career, with 54% reporting experiencing delays of 3 months or longer.
  • 79% of respondents attempted to recoup lost wages through their own demands (i.e. emails or phone calls). A majority of respondents claimed they had to communicate their demand to a client on multiple occasions (three times or more), with 76% of respondents reporting that they spent 1-2 hours a week trying to recoup payment. Less than one percent of respondents went through the legal system.
  • 39% of respondents said non or overdue payment affected their ability to pay bills or rent

. . . .

“Freelance journalism was hit especially hard during the pandemic. Loss of freelance journalism jobs was consistently cited as the first or second main reason for the decline in income by respondents to the Authors Guild’s COVID-19 Surveys,” said Mary Rasenberger, CEO of the Authors Guild. “Forcing freelance writers to spend weeks or months chasing down earned wages further cuts into their wages because it takes time away from other paying work, and often forces them to accrue debt. It pushes people that are already struggling to earn a sustainable living to the brink and is deeply unfair. Publications that refuse to make payments on time should be held to account. And thanks to FIFA they will.”

. . . .

“Freelance journalists and business writers rarely make enough money to afford a lawyer, so it didn’t surprise me to see that less than one percent of respondents sought a legal remedy,” said Larry Goldbetter, President of the National Writers Union. “This reinforces FIFA’s need. Very few freelancers know what legal remedies are available or understand how small claims court works. If FIFA passes, the state will assume some responsibility for helping to make sure the freelancer gets paid, or can fine repeat offenders until they get the message.”

Link to the rest at The Authors Guild

  1. Don’t do business with jerks.
  2. If you’re getting bad vibes about the person/organization who wants your services, just say no. You’re too busy to take on more work right now (meaning that you’re always too busy to do business with jerks).
  3. If you’re on the receiving end of a request for work, there’s nothing wrong with politely asking how the person found you.
  4. Before you agree to do anything, spend at least ten minutes online searching for any negative information about the person who wants to work with you. If you have friends in the same business you are in, ask around about the person/organization who wants you to help them.
  5. Get a big deposit up front. You’re a pro and that’s how professionals operate.
  6. Have a written contract that specifies, among other things, that any disputes arising under the contract, including failure to pay any fees when due, will be litigated in the county and state where you reside and that the counterparty consents to jurisdiction and venue in that location.
  7. The winner of any lawsuit arising under the contract is entitled to reasonable attorneys fees in an amount no less than $1,000 together with any court costs.

PG doesn’t write contracts any more, so this is not legal advice.

You’ll need to hire an attorney where you live to write a real contract for you.

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

From Reuters:

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

Bring on the ladies…

From The Legal Genealogist:

Evelyn, handling the estate.

Or Shirley, leaving a will.

So… is Evelyn the deceased’s daughter, perhaps? Maybe a sister?

Is Shirley a single woman or a widow?

Do we even know if Evelyn or Shirley is male or female?

Well…

It depends.

We might have a clue if the specific position being filled or role being played in the record by Evelyn or Shirley is spelled out in full.

Because there’s a big difference between an administrator and an administratrix, or between an executor and and an executrix.

Or between a testator and a testatrix.

Or between a whole lot of words we see in legal documents where sometimes it ends in -or and other times it ends in -ix.

Because that difference may very well tell us whether Evelyn and Shirley are male or female.

Because the -ix ending is always going to be referencing a female.

If Evelyn was appointed by the court to handle the affairs of a deceased person who didn’t leave a will, any reference to Evelyn as an administratrix of that estate is telling us that’s a her, not a him. If Evelyn was named in the will to handle the estate, any reference to the executrix, ditto.

And if we see our will-writing Shirley described as a testatrix, ditto again.

There are a bunch of terms like this we may come across in historical records:

• Actor, actrix.
• Creditor, creditrix.
• Curator, curatrix.
• Debtor, debitrix.
• Disseisor, disseisitrix.
• Emtor, emtrix.
• Orator, oratrix.
• Procurator, procuratrix.
• Prosecutor, prosecutrix.
• Relator, relatrix.
• Tutor, tutrix.
• Vendor, venditrix.

Now… particularly as time goes on, when the word doesn’t have the -ix ending, we can’t be 100% sure whether Evelyn or Shirley is male or female. The gender distinction in words begins to fade in the 19th century

Link to the rest at The Legal Genealogist

PG has followed The Legal Genealogist for a long time via an excellent newsletter, produced weekly (PG thinks, if not weekly, definitely regularly).

The individual behind The Legal Genealogist is Judy Russell. She is a genealogist with a law degree, and her “purpose here at The Legal Genealogist is, in part, to help folks understand the often arcane and even impenetrable legal concepts and terminology that are so very important to those of us studying family history.”

You, too, can be regularly educated by Ms. Russel if you sign up for her newsletter.

7 Common Types of Plagiarism

From The Grammarly Blog:

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

. . . .

What is plagiarism, and why should it be avoided?

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

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

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

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

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

7 common types of plagiarism

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

1. Complete plagiarism

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

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

2. Direct plagiarism

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

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

3. Paraphrasing plagiarism

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

Link to the rest at The Grammarly Blog

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

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

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

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

(Source of lists – Pate, Johnson & Church)

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

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

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

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

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

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

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

From The National Law Review:

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

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

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

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

Link to the rest at The National Law Review

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

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

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

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

United States federal courts are in three tiers

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

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

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

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

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

Image Credit: The National Law Review

Why Every Writer Needs a Social Media Executor, NOW!

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

Social Media Executor? That may not be a term you’re familiar with, but believe me, you need one.

That hit home for me this week after the tragic death of my friend, the kind, talented, funny author Barbara Silkstone. I hadn’t heard from her for a month or two, so I went to check her Facebook page. But it had been gutted. All posts, photos, friends, etc. had been deleted. Nothing was there but her name, header and a link to her blog. And the link was dead. Her lovely website and blog had simply evaporated. Thunk.

I put a note on my own FB page asking if anybody had news of her. A FB friend posted a link to a page at the Austen writers’ group. Barb had written a dozen or more Pride and Prejudice “variation” novels, and the Jane Austen fans kindly put up a memorial page for her.

They said she had died in mid-February. That meant she went shortly after our last phone conversation. I knew she’d been suffering from a spine injury. But she had seemed chipper and positive and had been looking forward to crab cakes for dinner. I’d been planning to phone her again soon. Instead, I found out she’d been gone for two months.

Only the Jane Austen fans knew.

But what about the fans of Barbara Silkstone’s hilarious mysteries and other comic novels? They have no way of finding out about her. Will people still buy books from an author who doesn’t seem to exist? Social media is so important to book sales these days.

Whoever her heirs are, they will miss out on royalties by erasing Barbara from the Web. In deleting her, they are deleting their own profits. Somebody needed to clue them in.

None of this would have happened if Barbara had appointed a social media executor. I’m kicking myself for not volunteering to do it myself. I have written about this before, but I can see it’s worthwhile to do an update.

. . . .

A social media executor can be any trusted friend or relative who’s savvy about social media.

Make it clear to this person — it’s best to put it in writing — what you want to happen to your social media and website/blog when you’re gone. If you have a free blog, do you want your executor to keep it up and monitor it for comments and spam? (If you have a self-hosted blog or paid website you want preserved, that should be put into your will and communicated to your financial or digital executor.)

It’s often best if your social media executor isn’t also your financial executor. Appointing an online friend or fellow writer will take the burden off the family. Families have so much overwhelming stuff to deal with when there’s a death, that social media can seem trivial. That may be what happened with Barbara Silkstone.

A social media executor can protect your social media accounts and notify online friends of your death.

They don’t have to deal with anything financial.

Things like bank passwords — and book retailer information for indies — need to go to your financial or digital executor. (You’ll need a digital executor if your heirs aren’t computer-savvy.)

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

PG says a person’s title doesn’t bring any sort of magic with it. He doesn’t know what a probate judge in any jurisdiction would do if faced by someone claiming to be a Social Media Executor who is disagrees with what the Executor named in the will, whose powers and responsibilities are set forth in various state laws and legal opinions by the state’s courts, is doing with a deceased author’s social media accounts.

PG suggests that an author’s executor needs to be a responsible individual with business savvy and good judgment. If a trust is involved in the author’s estate plan, the same qualifications would be a good idea for the trustee.

While there is certainly room for innovation in designing an estate plan for an author (or a great many other occupations), selecting someone whose middle name is “Reliable” or “Conscientious” is the first and most important thing to consider. A reliable and conscientious person can make good decisions on the spot, based upon facts on the ground after an author (or anyone else) dies. Tying that person’s hands with extensive directions in a will or trust when the state of things in the future is simply not known is, in PG’s deathly reasonable opinion, almost always a bad idea.

One of the most common stories one hears from estate planning attorneys working in rural areas is the difficulty in talking a third-generation farmer or rancher from inserting a provision in the estate plan that boils down to, “Whatever you do, don’t sell the farm/ranch!!!”

One such story concluded with a wiser/cooler-thinking individual saying, “Frank, your daughter owns the biggest scuba-diving school in Honolulu and your son is an investment banker in Manhattan. Which one is going to move to Iowa to farm corn?”

What Spotify should learn from the Joe Rogan affair

From The Economist:

hen neil young and Joni Mitchell saw an injustice, they used to attack it by writing protest songs, taking on racism in the “Southern Man” and the Vietnam war in “The Fiddle and the Drum”. Today, the two musicians prefer to speak out by pressing the mute button. The pair have withdrawn their recordings from Spotify, the world’s biggest music streamer, in protest at “The Joe Rogan Experience”, a podcast that gave airtime to anti-vaxxers. Spotify has decided to hang on to its podcaster.

. . . .

Mr Rogan is a bigmouth and he has been wrong about covid-19 and probably much else. Yet he has broken no laws, nor even, Spotify says, the company’s own content rules. As a matter of principle, Mr Rogan should be free to speak. As a commercial question, Spotify has made a publisher’s gamble that his popular show will attract more customers than it repels. The fact that share prices in Spotify and other platforms such as Meta, the parent of Facebook, are tumbling because of slowing growth underlines how that gamble is, in the most literal sense, Spotify’s business.

But the dispute points to a trickier emerging problem. Most of the 3.2m podcasters on Spotify are not like Mr Rogan, who sold his show to the company in 2020 for a reported $100m. The vast majority are amateurs, uploading their shows to Spotify’s platform as easily as they would to a social network. Likewise, most of the tens of thousands of new songs uploaded to Spotify every day are recorded in bedrooms and garages. The result is that the content mix on audio platforms is starting to look less like the curated library of Netflix and more like the infinite hotch-potch of YouTube. Unlike other social networks, however, audio platforms have little experience in moderating content.

They need to learn fast. The vaccines bust-up is their first taste of an argument that other social networks have grappled with for years and which is now coming to audio. On the one hand, most consumers want protection from the most harmful content, the best example being the incitement to violence, which even America’s First Amendment condemns. Facebook was used to foment genocide in Myanmar: one day audio might be, too. On the other hand, few want tech executives to become censors. Plenty of good music features bad language, disturbing ideas and violence. Some podcasts will stoke controversy. Free speech must be the default.

The starting point is transparency, which the audio platforms sorely lack. Spotify published its “platform rules” only following the Rogan explosion. Apple, the next-biggest streamer, has content guidelines for podcasts but a rough style guide for music. Amazon, the third-largest, has published even less in the way of rules. And whereas Facebook and co release regular reports on what content they have taken down and why, the audio streamers are opaque. Amid the Rogan crisis, Spotify casually mentioned that it had removed 20,000 other podcast episodes over covid misinformation. What else is it taking down? No one knows.

Link to the rest at The Economist

Books about Estate Planning and Authors

PG took a look on Amazon to locate books on the topic. He hasn’t reviewed any of these books and warns one and all that a book is not a substitute for a competent attorney familiar with estate planning and intellectual property issues.

One caveat – While the Federal Estate Tax is uniform across all states, each state has its own laws governing estates and trusts and its own laws regarding the probate of wills and state inheritance taxes. Some states don’t have state inheritance taxes.

This is why, you’ll want to look for an attorney who is experienced estate planning in your state. Should you move to a different state after creating a will and/or trust, you’ll want to have an experienced estate planning attorney practicing in your new state domicile review your current estate plan documents.

A Primer on Estate Planning as a Writer

From Jane Friedman:

Awareness of estate planning issues can be especially important to writers because of the unique nature of property rights in written works. Proper planning ensures that the ownership of a writer’s works after his or her death will end up in safe and knowledgeable hands.

In addition to giving the writer significant posthumous control over his or her works, an estate plan can greatly reduce the overall amount of estate tax paid at death. Because valuations of written works for estate tax purposes are not precise, estate taxes may turn out to be significantly higher than might have been anticipated. Thus, it is very important for writers to reduce their taxable estate as much as possible.

An estate plan may be either will-based or trust-based. Each type has advantages, but both are legitimate forms of estate planning. Estate laws and probate procedures vary throughout the United States, and a plan that works well for one person in one state may be inappropriate in other situations. Proper estate planning requires a knowledgeable lawyer and sometimes the assistance of other professionals, such as life insurance agents, accountants, and bank trust officers.

The Will

A will is a unique document in two respects. First, if properly drafted, it is ambulatory, meaning it can accommodate change, such as applying to property acquired after the will is made. Second, it is revocable, meaning it can be changed or canceled before death.

When carefully prepared, wills not only address how the assets of the estate will be distributed, but also foster better management of the assets. Those persons responsible for administering the estate of a decedent are known as executors in some states and personal representatives in others. It may be a good idea for writers to appoint joint executors so that one has publishing or writing experience and the other has financial expertise. In this way, the financial decisions can have the benefit of at least two perspectives. If joint executors are used, it will be necessary to make some provision in the will for resolving any deadlock between the two. A lawyer’s help will be necessary to set forth all of these important considerations in legally enforceable, unambiguous terms.

It is essential to avoid careless language that might be subject to attack by survivors unhappy with the will’s provisions. A lawyer’s help is also crucial to avoid making bequests that are not legally enforceable because they are contrary to public policy.

Trusts

A common way to transfer property outside the will is to place the property in a trust that is created prior to death. A trust is simply a legal arrangement by which one person holds certain property for the benefit of another. The person holding the property is the trustee; those who benefit are the beneficiaries.

To create a valid trust, the writer must identify the trust property, make a declaration of intent to create the trust, transfer property to the trust (this is often a step that is missed and can create a multitude of problems), and name identifiable beneficiaries. Failure to name a trustee will not defeat the trust, since if no trustee is named, a court will appoint one. (The writer may name himself or herself as trustee.)

Trusts can be created by will, in which case they are termed testamentary trusts, but these trust properties will be probated along with the rest of the will. To avoid probate, the writer must create a valid inter vivos or living trust.

Advantages of Using a Trust

The use of trusts to prepare a trust-based plan will, in certain situations, have significant advantages over a traditional will-based plan. For example, the careful drafting of trusts can allow the writer’s estate to avoid probate, which in some states is a lengthy and expensive process. Similarly, the execution of an estate through a trust-based plan can ensure a level of privacy not possible in probate court. Although these kinds of provisions provide some control over the estate, writers are cautioned that trusts cannot adequately substitute for a will if used haphazardly. Professional assistance is strongly recommended.

Link to the rest at Jane Friedman

PG says that dying without a will and/or trust usually ends up being the most expensive and time-consuming way of handling an estate for an author or anyone else.

That said, a poorly-drafted will can also cause an immense amount of difficulty and expense.

As mentioned previously, you’re looking for an estate planning attorney who can answer your questions, including questions about state and federal death taxes and how to minimize them.

Large law firms will have estate planning attorneys, but are likely to charge more for a similar service than a medium-sized or smaller law firm. That said, the amount of the fee a large firm charges for creating an estate plan will cost less than a legal dispute about your estate after you die.

As mentioned in comments to a prior post, you will want to make certain your estate-planning attorney is familiar with the special issues that can arise with intellectual property. If you have any concerns about an estate planning attorney’s appreciation of copyright issues, it will be worth it to ask her/him to associate counsel specializing in intellectual property, preferably copyright law (as opposed to patents, trademarks, trade secrets, etc.).

PG suggests accessing online information about authors and estate planning to become generally familiar with issues, jargon, etc. Check more than one or two sites so you’re not getting someone’s pet theories, peeves, etc.

For the record, although PG has done some estate planning for authors and others, he doesn’t do so any more.

When a Writer Dies: Making Difficult Decisions About the Work Left Behind

From Jane Friedman:

Nine days before my wife died, she forwarded me a Brevity post, The Death of a Writer, which asked:

Who is going to deal with your literary legacy, and what do you want done?

My wife wrote, “…interesting re what to do…”

She added a lifesaver emoji.

My wife, Mary Ann Hogan, journalist and teacher, died June 13, 2019, her “tango with lymphoma” ended, her life’s literary work unfinished.

Her manuscript explored her relationship with her father, William Hogan, longtime literary editor of the San Francisco Chronicle. Though he spent his life writing about books, Bill Hogan never wrote one of his own.

Mary Ann died thinking her book would redeem them both.

. . . .

My wife’s friends and writing partners agreed to help me read and judge what to save for the book or elsewhere. Then there would be drafts of the book to react to and fact-check. Her posse was more than willing. Mine, too.

We puzzled over things such as:

Should the final chapter be in my voice or hers? Both, we said. I would not pretend to be her. But I would quote her all the time, and we found those quotes.

What about the references to mental illness? She talked about panic attacks and flying thoughts, but never named the various diagnoses. What about wine? She talked about how she and her father all were big drinkers, without details. Leave it as she wrote it, we said.

What about the title? Circle Way came from the posse. Larger illustrations? That idea came from her writing mentor.

Rewrites? Mary Ann had created a lyric essay that jumped around like Kurt Vonnegut’s Slaughterhouse-Five, becoming at times a duet with her late father’s journal entries. This mosaic, we said, is best as is.

There’s more of her work to publish, in time, and now that we have a system, it can happen.

Finishing Mary Ann’s manuscript was not as hard as finding the right publisher. Parts of Circle Way had won three writing competitions. Publishers said it was “beautiful.” They also said it was “too literary” for the commercial marketplace.

My promise to my wife—to finish her book—felt shattered.

Now what?

Link to the rest at Jane Friedman

PG won’t spend much time on this, but talk to an attorney and get a will and/or a trust in place before you die or become incapacitated. Dying without a will is the most time-consuming and expensive way of passing your assets on to your heirs.

Writing a will is anything but rocket science, but if you have significant assets (more than a few hundred thousand dollars) or unusual types of property (like books you have written and self-published or books you’ve had published by any sort of publisher because whoever inherits the rights to those books will be able to collect royalties on them for the next 70 years in the US and a similarly long time in other nations recognizing copyright), the amount of money you spend to talk to an attorney and get her/his assistance will be tiny compared to the legal expenses of cleaning up an estate that hasn’t been handled properly.

College Student Views on Free Expression and Campus Speech 2022

From The Knight Foundation:

College campuses have long been places where the limits of free expression are debated and tested. In recent years, this dialogue has grown more fraught as some schools have sought to create a more protective speech environment for students. Moreover, key events shaping the past two years, such as the COVID-19 pandemic, the racial justice movement and the 2020 election, have only added deeper dimensions to the dialogue around free speech playing out on campus and in society at large.

The “Knight-Ipsos College Student Views on Free Expression and Campus Speech” report is the fourth in a series of Knight Foundation reports measuring college student attitudes toward speech and the First Amendment since 2016.

. . . .

KEY FINDINGS 

  • Students view speech rights as important, yet less secure than in years past: Students continue to believe First Amendment rights and concepts of free speech are important to democracy. However, the percentage of students saying speech rights are secure has fallen every year since this question was first asked in 2016. This includes a 12-point decrease from 2019 as an increasing number of students—particularly Republicans—say they believe speech rights are threatened. 
  • Students of color believe their speech is less protected: While a majority of college students express confidence that the First Amendment protects “people like them,” Black students in particular feel much less protected, with a sharp decline from 2019 to 2021. 
  • Students believe exposure to a wide spectrum of speech at college is important: Most students continue to say colleges should allow students to be exposed to all types of speech, including political speech that is offensive or biased, rather than prohibiting speech they may find offensive. 
  • Students favor college policies that limit racist speech, but support for other speech interventions remains low: Most students favor colleges instituting policies that restrict the use of racial slurs on campus, suggesting that, for them, this particular category of speech does not merit mandated exposure on campus. Just 1 in 4 students favor schools disinviting controversial speakers, down from more than 2 in 5 in 2019. Similarly, the number of students who support colleges providing safe spaces or speech codes has fallen over the past two years. 
  • Students say the campus climate stifles free expression, yet speech on campus is making nearly 1 in 5 feel unsafe: More students now say the climate at school prevents some from saying things others might find offensive, and fewer feel comfortable disagreeing in class. Yet slightly more now report feeling unsafe because of comments made on campus than in 2019. This is particularly true for female students and students of color. 

Link to the rest at The Knight Foundation, where you can find a lot more information on the topic and download a 44-page PDF report about the survey results.

Big Tech Wants To End Copyright

From Tilting at Windmills:

I’m a writer by trade. I don’t have another gig as a lawyer or comedian or anything else. This is what I do to support my family.

Luckily, I’m able to do this because the work I create is covered by copyright. Salem—the parent company for sites like Townhall, Red State, Bearing arms, Twitchy, Hot Air, and PJ Media—is able to make money off content because that content can’t be found anywhere else.

At least most of it.

. . . .

Copyright tends to be more of a factor when it comes to entertainment. Books, movies, and television all enjoy copyright protection, which means you can’t just decide to start streaming Firefly on your own for fun and profit. You’ve got to deal with Fox, first.

. . . .

However, as Jennifer Van Laar notes at Red State, big tech seems to be working to undermine much of that.

For years companies like Google and Spotify, whose revenue streams depend on content and profits depend on how cheaply they can acquire it, have worked to weaken copyright protections. They know they can’t get what they want through a transparent legislative process, so they’ve set their sights on effectively changing the law by using “a well-established legal organization to ‘restate’ and reinterpret our copyright laws for the nation’s judicial system.”

The organization, American Legal Institute (ALI), an invite-only organization for legal scholars, is known for its Restatements of Law, which have been described as “Cliff’s Notes” guides to various legal topics:

The ALI…is widely known and rightfully recognized within legal circles as an authority on explaining the law. Through their best-known works, called “Restatements of the Law,” the ALI compiles all aspects of a legal topic and publishes a “Cliff’s Notes” guide to that topic. These Restatements are regularly relied upon by our nation’s judges when they are asked to decide on cases requiring expert knowledge of a particular subject.

According to the Content Creators Coalition, ALI’s Restatements are “descriptive black-letter texts designed ‘to reflect the law as it presently stands’ that are used by courts, scholars, and legislatures to understand the current state of the law on any subject. ALI Restatements have historically been considered the gold standard for unbiased legal clarity and precision” (emphasis added).

Although ALI’s Restatements almost exclusively focus on common law (formed by precedent) and not statutory law, the organization started a project aiming to restate the Copyright Act, a federal statute, back in 2013 at the suggestion of UC Berkeley law professor Pamela Samuelson. According to then-Acting Register of Copyrights Karyn Temple:

[T]he Restatement project appears to create a pseudo-version of the Copyright Act that does not mirror the law precisely as Congress enacted it.

Samuelson is the founder of the Samuelson-Glushko Law Clinics (which one blogger referred to as “Silicon Valley’s answer to the Confucius Institutes)” who, at a Copyright Society of the USA conference “vehemently railed against awards of damages for copyright infringement while a room full of the nation’s top copyright law practitioners sat in shocked, slack-jawed silence or excused themselves for coffee.”

. . . .

Basically, though, Big Tech has decided that it wants to fund “legal research” that will undermine copyright because technology services benefit from looser copyright laws.

For example, you write a book. Now, I’ve written a few myself, so I know how much time and dedication goes into each one. Copyright laws allow you to have control over that book until or unless you give that up to someone, like a publisher. They then get the copyright so they can make money, giving you some of it.

. . . .

What’s happening here is that these Restatements, which are supposed to be based on the current understanding of the law, have been co-opted by some who actively oppose copyright protections in an effort to undermine the legal support for them. They’re blatantly misrepresenting the law in an attempt to effectively change the law.

And they’re likely to get away with it, too.

Link to the rest at Tilting at Windmills and thanks to K. for the tip.

PG will note that the author of the OP said he was not a lawyer upfront.

The Restatements he mentioned have been around forever. They’re published by a private company, The American Law Institute, universally referred to as ALI.

Restatements are a quick way of getting an overview of a legal subject or a piece of a legal subject, but Restatements aren’t the same as federal or state laws or formal decisions by federal or state judges.

When PG was doing a lot of litigation, he would resort to the relevante Restatement only if he couldn’t find any statute or court decision that was close to supporting his client’s case. On more than one occasion when he did this (not much more frequently than 2-3 occasions), the judge would either look at him (or opposing counsel, if opposing counsel tried to use a restatement) and say something like, “Does that mean you can’t find any Missouri law (or California law or federal statute or case) that supports your client’s case?”

If the judge didn’t say this first, opposing counsel (including PG if he was on the other side of a case where the attorney argued from a restatement) would say something like, “Your Honor” or “Judge” (if he knew the judge well), “I have included a great many citations to case law and statutes in order to support my client’s contentions. If counsel cannot locate any reliable citations, I’ll be filing a Motion for Summary Judgment (or whatever was appropriate) on behalf of my client because the other side apparently has no legal basis for their arguments.”

As a quote in the OP says, restatements are like the Cliff’s Notes version of the law. Just as Cliff’s Notes is the resort of desperate college students who aren’t ready for the final exam (May Cliff be blessed for all his past support of a younger and callower version of PG), for most judges with which PG is acquainted, quoting or citing a restatement, unless the restatement reference is accompanied by a whole bunch of on-point cases and statutes, is raising the desperation flag. An insightful client will be wondering why you didn’t recommend starting settlement discussions before wasting all the client’s money in court.

But Big Tech is a money machine and will waste a lot of money to get a 0.001% improvement in a legal position it’s trying to sell the justice system.

But, as always, PG could be wrong.

Hochul Vetoes New York’s Library E-book Bill

From Publishers Weekly:

Just hours before it was set to become law, New York Governor Kathy Hochul on December 29 vetoed New York’s library e-book bill. The bill is now back with the legislature, where it is tabled.

The veto comes despite strong grassroots support: in June, the bill unanimously passed the New York Assembly 148-0, and passed the New York State Senate 62-1. But the Association of American Publishers’ December 9 federal lawsuit seeking to block implementation of a similar law in Maryland sparked concern in the governor’s office. And in her brief explanation of the veto, Hochul cited the AAP’s concerns.

“While the goal of this bill is laudable, unfortunately, copyright protection provides the author of the work with the exclusive right to their works,” Hochul wrote. “As such the law would allow the author, and only the author, to determine to whom they wish to share their work and on what terms. Because the provisions of this bill are preempted by federal copyright law, I cannot support this bill. These bills are disapproved.”

The New York bill was also opposed by a cohort of powerful New York-based industry groups, including the AAP and the Authors Guild, which urged Hochul to veto the measure in a recent letter, calling the bill “an unjustified attack” that would have “a significant negative impact on the economy and jobs” in New York.

. . . .

The library e-book bills come after a decade of tension in the library e-book market, with librarians long complaining of unsustainable, non-negotiable prices and restrictions on digital licenses. Specifically, the bills emerged as a response to Macmillan’s controversial (and since abandoned) 2019 embargo on frontlist e-books in libraries, which led library advocates to take their concerns to state and federal legislators.

“This is a powerful moment for libraries,” concluded a December, 2020 report on digital lending from the ALA’s Joint Digital Content Working Group. “If we cannot find ways to make our digital collections robust and lasting, including a return to perpetual access as an option, libraries will never be able to meet an ever-increasing demand and provide equity to the communities we serve.”

Link to the rest at Publishers Weekly

Fighting Fake News, In Court

From Persuasion:

In November 2020, Ruby Freeman served as a temporary election worker to help count the vote in Fulton County, Georgia. “The times when I’ve decided to work for the county, I did so because I thought I could help and because I knew I could do the job well,” Freeman said in a statement issued through her lawyers. “What I didn’t know was that it would turn out like this.”

Meaning… this:

After the election, President Trump energetically pushed the bogus claim that Georgia’s election was rigged. Citing grainy images from a security camera, lawyers for the Trump campaign alleged that Fulton county workers had counted illegal ballots. Within hours, the claim was debunked by Georgia officials, including the Republican secretary of state’s office and the state Bureau of Investigation. The video showed “normal vote processing.”

By that time, however, various MAGA-friendly outlets had already published the accusation. They did not retract it. Instead, one of them, Gateway Pundit, identified Ruby Freeman by name, accused her of “voter fraud on a MASSIVE scale,” and added, “Maybe the Georgia police or Bill Barr’s DOJ may want to pay Ruby Freeman a visit.” The article concluded with two photographs of Freeman over the headline, “CROOK GETS CAUGHT.” Over the following days and weeks, Gateway Pundit continued to drive the story, with headlines like, “Has the FBI Spoken with Ruby Freeman or Ralph Jones Yet? And If Not, Why in the Hell Do We Have an FBI?”—complete with additional photos of Freeman.

Not surprisingly, Freeman’s life turned upside-down. “We know where you live, we [sic] coming to get you,” was one of many threats she received, according to her litigation complaint. Strangers camped out at her house, knocked on her door, harassed neighbors. She bought security cameras and deactivated the social media accounts for her business. On January 6, 2021, the day of the U.S. Capitol insurrection, the FBI recommended she evacuate her home. She did not return for two months.

“Right now, I can’t imagine ever going back to election work,” she said in her statement. “My life has been disrupted in so many ways.” Freeman’s daughter, Shaye Moss, who was an employee of the Fulton County elections department, endured similar torments, including messages saying she should die for her “treason,” threats to her grandmother and 14-year-old son, and protests at her office demanding her firing. “I’m afraid to be out in public,” Moss said in a statement provided by her lawyer. “Now I’d rather get my groceries delivered than go to the store because even that makes me nervous.”

Although Gateway Pundit is a well-known trafficker in falsehoods—PolitiFact rates 80 percent of the site’s fact-checked articles mostly or entirely false—it’s a major conservative website. Usually, litigating against such an outfit would be prohibitively difficult for an ordinary citizen, even if the case were watertight. The result: zero accountability.

With the help of a new legal aid project, however, Freeman and Moss are breaking that pattern by suing Gateway Pundit for defamation. (They’re also suing One America News and Rudolph Giuliani in a separate action.) That project—called Law for Truth—could have interesting implications for super-spreaders of toxic disinformation.

Launched in December by Protect Democracy, a nonprofit group in Washington, Law for Truth creates a pathway for victims of political libel to fight back. It’s based on the observation that traditional defamation actions have been one of the few ways of holding purveyors of fake news accountable.

. . . .

“Yet, as effective as defamation suits were when they were deployed, very few were filed relative to the sharp uptick in injurious defamation,” Ian Bassin, Executive Director and co-founder of Protect Democracy, told me. The underenforcement of defamation law is a kind of market failure, he argues. Law for Truth provides a remedy by “essentially creating a nonprofit plaintiffs’ bar focused on ensuring accountability under the law” for defamatory political disinformation.

No, the effort cannot halt the plague of disinformation. But it may change today’s lopsided odds against victims. “There is a real sense of impunity among some of these outlets,” said Rachel Goodman, who leads the Law for Truth legal team. “We think it would be good for defendants and potential defendants to understand that there are significant liability risks for spreading these lies.”

. . . .

Traditionally, civil-liberties advocates have cast a wary eye on defamation actions. All too often, litigation—actual or threatened—has been exploited by powerful interests to harass journalists and intimidate critics. Donald Trump is no stranger to this tactic, having promiscuously threatened to sue his critics both before and during his presidency. Taking journalists to court is a tried and true weapon of authoritarians. Just such abuses were the reason that, in 1964, the Supreme Court slapped down Alabama state officials’ use of libel law to stifle civil rights advocacy.

What the last few years have demonstrated, though, is that underenforcement of defamation law can be just as damaging to free speech as overenforcement. In the world of social media and fake news, spreading lies is trivially easy and often profitable. Russian-style “firehose of falsehood” disinformation campaigns are a staple of the MAGA movement. The prospect of losing your reputation and your safety would deter just about anyone from participating in politics—which, of course, is the point of MAGA’s campaign of intimidation against honest public officials.

Increasingly, civil-libertarians are taking this new reality on board. “There should be a right in a democracy to be involved in discussing and trying to influence matters of public concern without having to sacrifice your reputation,” Nadine Strossen, a New York Law School emeritus professor and former president of the American Civil Liberties Union, told me. “That can have a negative impact on the free exchange of ideas and democratic activity.”

The Law for Truth model is not without risk. “We have to keep in mind that whatever tools we create are going to be used by people whose cases are not quite as strong,” Walter Olson, a litigation expert at the Cato Institute, told me. “We need to think about what happens when people put together large financial kitties to sue in the other direction. Think about ten years from now, once it’s been fully accepted to raise money by saying, ‘We’ve got a list of media outlets we can destroy using litigation.’ It will be used to beat up on some small publications or writers who don’t have very good means to defend themselves.”

To avoid this danger, it will be important for initiatives such as Law for Truth to stay within the boundaries of existing defamation law, not stretch those boundaries with novel or expansive claims. “The two women in the Gateway Pundit suit have almost the paradigm of a defamation case,” David French, a writer, lawyer, and Persuasion advisor who formerly led the Foundation for Individual Rights in Education, told me. “The simple fact of the matter is that we do have large-scale, harmful lying that puts Americans, in some cases, in fear for their lives. The law has always had mechanisms for responding to that. The institutionalization of efforts to protect individuals who otherwise might not have resources to defend themselves is an important development.”

Link to the rest at Persuasion

PG has substantial concerns about using defamation suits in the manner described in the OP.

What has been called, “Lawfare”, in the US takes advantage of the fact that courts in many major cities are terribly backlogged with pending cases.

There are a lot of reasons for this that PG will not bore you with, but one of the many unfortunate results of this situation is that taking someone to court, even if your case has substantial merit, is an extraordinarily long and often expensive project.

Experienced defense counsel know how to make the person/organization that filed suit because he/she/they felt substantially wronged spend a great deal of money over the years that it may take the controversy to be heard by a judge or jury on the merits.

Additionally, in large metropolitan courthouses, criminal cases take precedence over civil matters because of guarantees of speedy trials, the great harm that can be caused to an innocent person who is incarcerated without just cause prior to trial, etc. In the many metropolitan court systems in which a given judge handles both criminal and civil cases, the civil cases are, of necessity, bumped down the trial calendar due to a continuing stream of criminal trials that must take precedence.

Regarding the OP, defamation cases can be used by wealthy individuals or by wealthy groups of individuals motivated to attack political enemies to punish the defendant financially even if the case is dismissed by the person who filed it prior to coming close to going to trial.

New York’s library e-book licensing bill vetoed as Maryland challenge looms

From The Bookseller:

The Association of American Publishers (AAP) has welcomed the decision by New York Governor Kathy Hochul to veto a bill that would have forced publishers and authors to grant e-book licences to libraries under state-imposed terms.

New York’s State Assembly legislation was similar to a new law in Maryland which the AAP is currently challenging in court over concerns it will force publishers both in the US and abroad to license e-books to public libraries on “reasonable terms” defined by the state. A hearing on the challenge is set for February.

Vetoing the New York bill, Hochul wrote: “While the goal of this bill is laudable, unfortunately, copyright protection provides the author of a work with the exclusive right to their works. As such, federal law would allow the author, and only the author, to determine to whom they wish to share their work and on what terms. Because the provisions of this bill are pre-empted by federal copyright law, I cannot support this bill.”

The AAP said the New York bill would have contravened the US Copyright Act and pointed out it included penalties for non-compliance, “effectively chilling copyright owners from pursuing the full benefit of their copyright interests and literary properties within the state”. 

Link to the rest at The Bookseller

Penguin Random House Defends Effort to Buy Simon & Schuster

From The New York Times:

Penguin Random House, the largest book publisher in the United States, said in a court filing on Monday that its plan to buy a competitor, Simon & Schuster, would be a boon for the industry, benefiting authors, booksellers and readers.

The Justice Department has disagreed. Last month, it sued to stop the $2.18 billion acquisition, as the Biden administration takes a more skeptical view of corporate consolidation across industries.

In its complaint, the department attacked the deal on the grounds that it would harm best-selling authors, since they could potentially receive lower pay with one fewer publisher competing to acquire their books. It documented several bidding wars between Penguin Random House and Simon & Schuster that went into six and seven figures and argued that if the proposed merger goes through, those authors wouldn’t have received such lucrative advances.

By focusing on authors’ pay, the Justice Department signaled that it is taking a more sweeping view of antitrust law. For decades, it has been used to block deals on the grounds that consumers can be harmed when big companies with few competitors can raise their prices. But in its suit to block Penguin Random House, the government does not claim that the prices for books will rise for readers or for booksellers, but instead argues that if Penguin Random House gets even larger, it will have more leverage over authors.

In the joint response filed on Monday in the United States District Court for the District of Columbia, Penguin Random House and Simon & Schuster said the government’s argument misunderstands the way the publishing industry functions.

. . . .

“The government wants to block the merger under the misguided theory that it will diminish compensation to just the highest-paid authors,” said Daniel Petrocelli, a lawyer representing Penguin Random House and its parent company, Bertelsmann, in an interview on Monday. “That is legally, economically and factually wrong, and it ignores the vast majority of authors who will indisputably benefit from the transaction.”

Penguin Random House is defending its plan in part because it stands to lose millions if it does not go through. Acquisitions like these often come with termination fees that are owed to the prospective seller if the transaction doesn’t close. In this case, Penguin Random House would have to pay Simon & Schuster’s seller, ViacomCBS, about $200 million.

Monday’s filing described the book industry as more than just the “Big Five” that consists of Penguin Random House, Simon & Schuster, HarperCollins, Hachette and Macmillan. There are other major players like Disney, Amazon and Scholastic, along with hundreds of small and midsize publishing houses. On any given deal, Penguin Random House said, “at least one” smaller publisher will often compete, and some of the country’s highest-selling authors, including J.K. Rowling (“Harry Potter”) and Jeff Kinney (“Diary of a Wimpy Kid”), are published by companies outside the big five.

Penguin Random House criticized the government for focusing on the relatively small but influential group of authors who command the highest advances, calling it an “invented market.” Publishers do not “divide the market for book rights into distinct categories based on the author’s compensation,” it said in the response.

“This slender piece of the market does not exist,” Mr. Petrocelli said. “There is no objectively definable market for authors of anticipated top-selling books.”

Many writers outside that group, Penguin Random House said, would stand to make more money as a result of the deal. Authors now published by Simon & Schuster would be brought into the Penguin Random House supply chain, widely considered to be the best in the business, which would make their work more visible and available. The company’s supply chain and distribution network also helps neighborhood bookstores compete with Amazon, the response said.

There is little dispute that the proposed acquisition would reshape publishing, which has been transformed by increasing consolidation over the past decade.

The merger of Penguin and Random House in 2013 helped to accelerate an arms race among other publishers who felt they had to bulk up to compete with the enormous new company. Hachette Book Group has expanded its catalog by buying successful independent publishers, including Perseus Books in 2016 and Workman Publishing this year. HarperCollins has also made acquisitions central to its growth strategy, purchasing the romance publisher Harlequin in 2014, and earlier this year it acquired Houghton Mifflin Harcourt Books and Media, the trade publishing division of Houghton Mifflin Harcourt, for $349 million.

But in its court filing on Monday, Penguin Random House said that since 2013, competition in the industry has grown. More titles are published every year, it said, and more than half of the dollars spent on hardcover and paperback books in the United States now go to publishers outside the big five, a higher percentage than before the 2013 merger.

. . . .

Eleanor Fox, a professor at New York University School of Law who specializes in antitrust and competition policy, said the government’s argument was unusual in that it focused on top author earnings rather than harm to consumers or the market as a whole.

“It’s somewhat unique in this time to focus on the supply market and argue that the suppliers will be exploited,” she said. “They have a much weaker case about consumer pricing.”

Link to the rest at The New York Times (Sorry, but the Times thinks you should pay to visit their website and look at the ads you see there. You can sign up for a limited free subscription, however.)

Inside the Realms of Ruin

From TechCrunch:

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

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

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

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

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

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

. . . .

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

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

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

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

. . . .

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

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

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

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

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

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

Link to the rest at TechCrunch

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

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

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

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

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

The If-Only Lawsuit

From Kristine Kathryn Rus ch:

The United States Justice Department is suing to stop the big merger of Penguin Random House and Simon & Schuster. That I can write about without a lot of research, because I’ve been following this merger for a long time.

. . . .

However, this suit is worth mentioning…

Because it’s fifteen to twenty years too late. The Authors Guild noted that in their response to the news of the DOJ suit:

Today’s decision by the DOJ was unexpected given that so many other major mergers and acquisitions in the publishing industry have gone through recently and over the last few decades with nary a raised eyebrow, leaving us with only a handful of companies dominating the industry.

Yeah. Exactly. Those of us who suffered through the previous mergers know what bullshit the PRH and S&S are feeding the press. No effect on competition? In the 1990s, my books routinely went to auction, and we always got a higher price for the books than the initial offer.

By the end of the decade and into the early part of this century, there was no one to have an auction with. The book had to be a potential (and obvious) blockbuster. One of my editors backed out of a possible deal when she heard that another editor at a different imprint in the same gigantic merged company wanted the book.

Oh, my editor said to me, she can pay you more, and their imprint will probably take over mine in a year or so.

Guess what? My editor was right. Eighteen months after the merger, the “overlapping” departments and imprints were cut as a cost-saving measure, putting my former editor out of a job, along with everyone else on her team. The cuts and trimming, for the sake of the stockholders, mostly hit the most experienced people in the purchased company (not the one that did the buying) because experienced folk are paid more.

. . . .

All the promises in the world mean nothing when large companies merge.

I read the complaint for the suit the day the suit was announced. The complaint is worth reading because, if nothing else, it’s a what-if. What if the DOJ had been on this as the mergers started twenty years ago? What would the traditional publishing landscape look like now?

I can tell you: It would look completely different. Instead of the traditional part of the industry being dominated by five large conglomerates, the traditional part of the industry would look the same or better than it did in the early 1990s. There would be a lot of publishing houses, a lot of working editors, a lot of imprints, and a lot of competition.

Indie wouldn’t be as attractive for many big name writers because those writers would still be working. Just this morning, I discovered that a writer whose work I loved decades ago has gone indie. Why? Because he hasn’t been able to get anyone to buy his books for…you guessed it…twenty years.

This happened to a worldwide bestseller who hit the top of the major lists for decades and whose work was made into three feature films. He couldn’t sell another book because his genre was “passé.” His genre? Horror. No one at the big houses would touch horror twenty years ago, and even the smaller ones looked askance at it.

If anyone had any brains, they would have seen that the genre would become as big as it is now. Right now, the people greenlighting movies and TV shows and buying books are the generation who grew up reading R.L. Stine. Of course, they want more horror. It was on the horizon.

The multitudinous publishing houses of the 1980s and 1990s could have afforded to play the waiting game—at least one or two of them, or maybe even three of them. Even better, the editors there who would have had long careers would have seen the writing on the wall and pushed out reissues of this writer’s books as the horror boom started.

The five large companies that exist now have no idea what they have in inventory. They have no institutional memory because they’re really not an institution. They’re parts, slammed together to make a great stock portfolio, so that they can be traded and bring in profits for the stockholders. Forget the books, forget the product, forget the employees, forget the readers. The books literally are widgets that are, in the minds of the people running the company, interchangeable.

If this weren’t true, then Simon & Schuster would not be up for sale. ViacomCBS would keep it and mine the inventory for projects for various TV, streaming, and movie projects, not to mention gaming rights and other things. A book publisher owned by a media company? Sounds like a surefire way to make even more money, right?

Nope.

There’s no vision here.

And the suit by DOJ is as stuck in the past as that little dream of mine was. Yes, this merger by PRH and S&S is truly anti-competitive, just like all the other mergers were.  And the impact, should the merger go through, on the traditional publishing industry will be profound…although not as profound as all of the mergers that preceded it.

What has changed is the rise of indie publishing. Writers do have somewhere else to go. They can publish their own works. They can reach the same readers that these large companies can, because these companies are no longer interested in publishing books. They’re just manufacturing widgets.

One very ironic thing that has emerged during the entire discussion of the merger is this: For about a decade now, companies like PRH and S&S denied that indie writers in any way contributed to the publishing industry. “Flotsam and jetsam” were some of the words floated around about indie publishing; “garbage” was another.

Now, though? Now that they need us? We’re part of their defense.

Oh, no, the attorneys for PRH and S&S have been saying all year, we’re not in control of the market. See this large thriving market over here? Those indie writers? They’re part of the industry too.

. . . .

The traditional publishing industry, as I have written many, many, many times, is broken. New writers can no longer anticipate having a career in the traditional publishing industry, let alone making a living at writing. And even a lot of the big guns are watching their income fade because of the policies and behaviors of these megacorporations.

Sure, there are always a handful of books that make millions. But once upon a time (twenty-five years ago), there were hundreds of books that made their authors millions. Enough books that Publisher’s Weekly devoted an entire month of issues every spring to cover the sales figures, never going below 250,000 for hardcovers and 500,000 for mass market paperbacks.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

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

From The Authors Guild:

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

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


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

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


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

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

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

Link to the rest at The Authors Guild

Justice Department Sues to Block Penguin Random House’s Acquisition of Simon & Schuster

From The Wall Street Journal:

The Justice Department filed a lawsuit Tuesday that seeks to block Penguin Random House from acquiring rival Simon & Schuster for nearly $2.18 billion, the latest in a series of aggressive antitrust cases brought under the Biden administration.

The department’s complaint, filed in federal court in Washington, D.C., focused not on the prices consumers pay for books, but instead on the competition between publishers to secure rights from authors, especially bestselling ones. The industry paid authors over $1 billion in advances last year.

If the Simon & Schuster deal were permitted, Penguin Random House—already the world’s largest consumer-book publisher as measured by revenue—would hold unprecedented control and outsize influence over which books are published in the U.S. and how much authors are paid, the Justice Department alleged.

“By reducing author pay, this merger would make it harder for authors to earn a living by writing books, which would, in turn, lead to a reduction in the quantity and variety of books published,” the lawsuit alleged.

Attorney General Merrick Garland said the Justice Department’s suit aimed “to ensure fair competition in the U.S. publishing industry” and was part of a broader push to use antitrust enforcement to protect economic opportunity.

Bertelsmann SE, the parent of Penguin Random House, agreed to buy Simon & Schuster from ViacomCBS Inc. last November, a deal that sought to create a publishing behemoth in an industry that has been dominated by five major players, including Simon & Schuster.

The publishers vowed to fight the Justice Department in court and said their deal would improve their efficiency and make titles more widely available for consumers and retailers.

“The publishing industry is, and following this transaction will remain, a vibrant and highly competitive environment,” the publishers said in a joint statement. They said they compete “with many other publishers including large trade publishers, newer entrants like Amazon, and a range of midsize and smaller publishers all capable of competing for future titles from established and emerging authors.”

The deal has faced criticism from writers’ groups, and the lawsuit was quickly welcomed by some authors, including Stephen King, a longtime Simon & Schuster author, who said via email that he was “delighted” by the Justice Department’s merger challenge.

Link to the rest at The Wall Street Journal (Should be a free link, but, if not, PG apologizes for the paywall, but hasn’t figured out a way around it.)

You Are A Writer. You Create And License Intellectual Property Assets.

From The Creative Penn:

Language is powerful.

We choose words carefully in our written works because we understand their impact. They carry a message from one mind to another. They shape ideas. They can change lives.

But writers often use language carelessly when it comes to the business side of being an author, and it shows that many still don’t understand copyright, and how rights licensing can impact your publishing choices, as well as your financial future.

I’ve run across several examples of this recently in discussion with author friends and also online, so I thought it was time for a refresh on intellectual property (IP) — and how important it is to define terms as we move toward Web 3 and a new iteration of what ‘digital’ even means.

You have to understand IP and rights licensing in order to make a living as an author for the long-term, whether you work with an agent or you’re entirely independent.

It might take a little getting used to, but once the penny drops around intellectual property, your language will change and you will have the power to shape your author career in a much more effective — and profitable — way.

Note: I am not a lawyer/attorney and this article is not legal or financial advice.

This article is based on learning about intellectual property from books, courses, and my personal experience publishing independently since 2008. It is a huge topic, so I can only scratch the surface and hopefully, give you something to think about and resources to take your knowledge further.

In this article, I cover: 

  • An overview of intellectual property rights related to written work
  • Original written work = Intellectual property asset
  • Print, Ebook, Audio
  • Other rights licensing opportunities
  • What rights have you licensed? Are you leaving money on the table? Plus, the issues with licensing “digital” rights as we move toward Web 3.
  • More resources — books, courses, podcast interviews

Link to the rest at The Creative Penn

PG says every author should save a copy of the OP for future reference.

Some of the items Ms. Penn discusses will be familiar to regular visitors to TPV, but others may not be.

Here are a couple of excerpts PG fully endorses:


Rights licensing is usually based around: 

  • Format e.g. ebook, paperback, audiobook defined to specific types of each and royalty levels for sale
  • Territory e.g. North America, UK Commonwealth, World
  • Language e.g. German
  • Term e.g. 7 years
  • Specific work (sometimes more than one, and sometimes with an option for other work in the world or under the same author name)

There are also many options for subsidiary rights licensing. Some include: 

  • Adaptations — film, TV, web series, plays/theatre, graphic novel/comic, podcast series, gaming, merchandise, online courses
  • Serial rights, reprints, anthologies 
  • Book clubs
  • Public lending rights, reproduction rights (for example, ALCS in the UK collects these on behalf of authors for library borrowing and photocopies etc.)

Selective rights licensing means you choose to limit the license to whatever the publisher is capable (and likely) of producing. It is very unlikely that a publisher will be able to use all rights in all formats in all territories in all languages.

For example, I license World French electronic, audio, and print for specific non-fiction titles for five years with a first option to renew. 

If you license selectively, you can also independently publish in other formats, territories, and languages. For example, I have now sold ebooks in 168 countries — and that’s just through Kobo.


If you have any form of written content available for someone else to read or purchase or listen to, then you have signed a contract that will include some kind of license. 

What rights have you licensed? Are you leaving money on the table?

If you are traditionally published and someone has paid you for your rights, check your contract to see what you have agreed to.

Many traditionally published authors I talk to will say they don’t know what rights they have signed, which shows they don’t understand how copyright works. If you don’t know what you’ve signed, then you don’t know what else you can do with your body of work. If that’s you, go check your contracts. You might be leaving money on the table.

If you’re an indie author, you sign a contract when you accept the terms and conditions of whichever service you use to publish. So read the Ts&Cs, download a copy, and keep them somewhere as evidence of what you have ‘signed.’

Many of the sites have a non-exclusive contract for a specific format, e.g. Kobo has a non-exclusive right to your ebooks so you can always publish them elsewhere. 

Some sites have exclusive options. For example, if you opt into KDP Select and make your ebooks available on Kindle Unlimited, that is a 90-day exclusive contract for your ebook, so you can’t use any other publishing or distribution service, or sell direct, for the term you enroll. That doesn’t stop you from licensing your audio or print rights, it just limits your ebook options. . . .

Some sites have terms and conditions that are being questioned by authors and author organizations, for example, check out #audiblegate and the investigation into Audible’s contracts. 


Here are a few points PG will emphasize/add to Ms. Penn’s very good post.

  1. Read the Contract – Yes, PG knows that it’s not great fun to read any sort of contract (he has read thousands so he speaks from experience), but read it anyway.
    1. If you receive an electronic version of the contract, print it out.
    2. Then go through the printout or a copy of the paper original like you were grading an essay and looking for evidence of cheating.
    3. Go through it paragraph by paragraph.
    4. Pay attention to the sentence structure. (Really!)
    5. Underline things you don’t understand.
    6. Write notes about your concerns in the margins.
    7. Pay particular attention to defined terms.
      1. Defined terms may be included in a separate section of the contract. PG has seen some contracts that seemed perfectly reasonable until he hit the “Definitions” section in paragraph 36.A.(1) where all hell broke loose.
      2. Here’s an example of a defined term clause, “As used herein, “publish” shall mean . . . .” As mentioned in the prior subparagraph, the “As used herein” piece may be found in an entirely different location in a 30-page contract than the place which talks about publishing your book.
      3. Here’s another example of a defined term, “Blah, blah, blah, blah, blah, blah (“Publish“)”
  2. Read the Damned Contract! PG knows that when you were two years old, you pitched a fit whenever your mother tried to feed you peas and she finally gave up. But you’re an adult now and you have learned to do hard things, like reading a publishing contract or a Terms & Conditions clause on Amazon’s or somebody else’s website.
  3. Ask Questons: If you don’t understand something you read even after you have diagrammed the sentence, ask what it means.
    1. You can even do it with a Terms & Conditions clause online.
    2. Contact the online help people. If they can’t answer the question, ask them who can and contact that person.
    3. If you can’t get a good response via the Help link, do a bit of searching on the website or online. You’re looking for the Legal Department or Corporate Counsel. If the website is owned by another company, look on that company’s website.
    4. If corporate counsel has an email address, send them an email. If they have a mailing address, also send them a paper letter that says the same thing.
    5. Here’s an example of an email/letter you might consider sending:
      1. “Dear ______________: or Dear Corporate Counsel: I was reviewing your Terms and Conditions and in Paragraph 15 (A), I found the term, “publish” but I could not find a definition of this term anywhere in the Terms and Conditions. I believe “publish” is an ambiguous term and I am confused. In the Merriam-Webster’s Dictionary (2019 edition), “publish” is defined as “blah, blah, blah” but in the New Oxford American Dictionary (2021 edition), “publish” is defined as “blah1, blah1, blah1.” As you can clearly see, the two definitions are not identical and, I believe, do not define the term, “publish” in the same way. My particular concern is whether the term, “Publish” as your company uses it includes or does not include blah, blah, blah. Could you please clarify. I started a discussion group concerning this question on Reddit and have received a variety of different opinions, including some by people who say they are attorneys, but you can never tell if someone is telling the truth or not online. One of the people who responded said he was a law student and was going to raise my question in his intellectual property class to see what the professor and other students think about your company’s definition.”
    6. PG just did a Google search for “legal department” on Amazon’s U.S. site and found this link (https://www.amazon.com/gp/help/customer/display.html?nodeId=GLSBYFE9MGKKQXXM)
    7. At the link he found the following in Amazon’s Conditions of Use:

OUR ADDRESS

Amazon.com, Inc.
P.O. Box 81226
Seattle, WA 98108-1226

And a little farther down, he found this:

HOW TO SERVE A SUBPOENA OR OTHER LEGAL PROCESS

Amazon accepts service of subpoenas or other legal process only through Amazon’s national registered agent, Corporation Service Company (CSC). Subpoenas or other legal process may be served by sending them to CSC at the following address:

Amazon.com, Inc.
Corporation Service Company
300 Deschutes Way SW, Suite 208 MC-CSC1
Tumwater, WA 98501
Attn: Legal Department – Legal Process

And farther down he found this:

NOTICE AND PROCEDURE FOR MAKING CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT

If you believe that your intellectual property rights have been infringed, please submit your complaint using our online form. This form may be used to report all types of intellectual property claims including, but not limited to, copyright, trademark, and patent claims.

We respond quickly to the concerns of rights owners about any alleged infringement, and we terminate repeat infringers in appropriate circumstances.

We offer the following alternative to our online form for copyright complaints only. You may submit written claims of copyright infringement to our Copyright Agent at:

Copyright Agent
Amazon.com Legal Department
P.O. Box 81226
Seattle, WA 98108
phone: (206) 266-4064
e-mail: copyright@amazon.com

Courier address:
Copyright Agent
Amazon.com Legal Department
2021 7th Avenue
Seattle, WA 98121

PG advises keeping a copy of your email and the online contract as it existe when you reviewed it in an electronic file on your computer. Insert the date in the copied documents in addition to the date your computer assigns to the file.

Electronic copies will allow you to compare different versions of the Terms and Conditions over time to see whether any changes were made as a result of your email.

PG gave up the practice some time ago, but he used to keep copies of various Terms of Use on different sites to track how they changed over time. Document comparison software makes the job very easy.

PG would be surprised if most online sites would fail to respond to an email such as he described. Potential ambiguity in a contract should raise a red flag with any competent attorney.

If a provision is ambiguous or subject to two different interpretations and a lawsuit follows, a judge will decide what the provision really means. As a very general proposition, a genuine ambiguity in a written contract means the judge will be more likely to interpret the ambiguity against the party that drafted the contract, particularly if, like Terms and Conditions used by online companies, the contract is a take-it-or-leave-it proposition.

If you don’t receive a response to your letter and email asking about the meaning of the terms and conditions, you could follow up with an email noting that you haven’t received a response.

If you don’t receive an answer to your question at this point, go ahead and post the T’s & C’s and your questions about them to several relevant online discussion forums and see what happens. Remember squeaky wheels and grease.

It’s clear that PG has gone on way too long about this topic and needs to do something useful. He will leave with one final admonition:

Read the Contract!

Feckless heirs in the spotlight

From LinkedIn:

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

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

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

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

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

Link to the rest at LinkedIn

Inheriting the copyright

From The Legal Genealogist:

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

From Helen Sedwick:

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

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

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

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

Common sense and a cool head are key.

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

Defamation

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

False Statement of Fact.

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

Of an Identifiable Person:

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

That is Published:

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

Causes reputational harm:

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

Made With Actual Malice or Negligence:

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

Invasion of Privacy Claims

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

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

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

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

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

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

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

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

Misappropriation of the Right of Publicity

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

Right of Publicity claims are limited to:

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

Link to the rest at Helen Sedwick

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

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

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

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

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

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

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

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

From The New York Times:

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

. . . .

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

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

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

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

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

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

. . . .

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

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

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

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

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

. . . .

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

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

. . . .

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

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

. . . .

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

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

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

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

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

. . . .

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

. . . .

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

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

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

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

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

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

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

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

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

Link to the rest at The New York Times

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

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

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

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

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

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

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

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

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

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

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

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

Why is PG posting this?

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

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

A brief tutorial:

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

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

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

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

A WORKING DEFINITION

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

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

. . . .

U.S. PARODY DECISIONS

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

A. The Second Circuit “New York” View

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

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

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

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

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

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

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

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

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

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

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

. . . .

B. The Ninth Circuit “California” View

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

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

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

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

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

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

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

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

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

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

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

The Rick Dees Case


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

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

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

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

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

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

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

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

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

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

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

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

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

PG’s comments (not legal opinions):

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

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

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

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

From Reason:

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

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

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

From the majority:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Link to the rest at Reason

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

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

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

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

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

From The New York Post:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Link to the rest at The New York Post

Here’s what the tablet looks like:

the Gilgamesh Dream Tablet

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

From Artnet News:

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

• • •

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

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

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

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

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

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

Link to the rest at Artnet News

Forging Papers to Sell Fake Art

From FBI News:

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

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

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

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

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

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

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

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

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

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

. . . .

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

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

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

Link to the rest at FBI News

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

Are Fictional Characters Protected Under Copyright Law?

From Jane Friedman:

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

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

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

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

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

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

. . . .

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

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

. . . .

Public domain characters cannot be protected

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

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

. . . .

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

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

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

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

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

Link to the rest at Jane Friedman

PG is not entirely satisfied with the OP.

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

Copyright designs found weak when derived from common ideas

From Thompson Coburn LLP:

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

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

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

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

Link to the rest at Thompson Coburn LLP

Basics of Copyright 

From The Office of General Counsel, Harvard University:

What does copyright protect?

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

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

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

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

. . . .

What is “fair use”?

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

What is the test for fair use?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PG’s Thoughts

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

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

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

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

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

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

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

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

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

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

CNRS Commission Defends Roques in Response to Plagiarism Accusations

From Daily Nous:

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

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

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

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

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

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

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

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

Link to the rest at Daily Nous

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

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

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

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

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

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

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

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

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

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

From Class Actions Reporter:

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

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

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

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

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

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

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

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

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

Link to the rest at Class Actions Reporter

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

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

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

Total Recall Technologies v. Luckey

This is from a federal district judge who is aggravated:

Pending now are seven administrative motions to seal covering over a hundred documents filed in connection with defendants’ summary judgment and Daubert motions, as well as documents related to the Court’s prior order on supplemental briefing (Dkts. 312, 322, 327, 328, 329, 346, 352). The Court has reviewed these administrative motions and is shocked to see the parties wish to seal such trivia as:

  • a. The statement Can’t wait to try it (Dkt 346-9, Exh. 16) as well as a reference to that statement in a brief (Dkt 346-3, Supp. Br. at 22);
  • b. Luckey’s statement in a 2012 email to Seidl that Luckey Can’t wait to get into this, very enthused along Luckey’s name, email address, and the email’s send date (Dkt. 349-37, Exh. 36);
  • c. Just the words attached is an invoice and From: Palmer Luckey palmertech@gmail.com in a 2012 email (Dkt 346-11, Exh 25);
  • d. A reference in a brief that Ron Igra stated he would get rich from the success of Oculus (Dkt. 312-8, Br. at 7);
  • e. The words 3D is essential in an email from Seidl to Luckey (Dkt. 346-16, Exh. 54);
  • f. The statement Talking with John Carmack (id Software) about the possibility of designing future games for use with my open-source head mounted display design posted on social media (Dkt 349-2, Exh. 24).

This is beyond the pale. The indiscriminate use of the confidentiality stamp alone warrants the denial of the entirety of the motions. The only arguably legitimate request that the Court can so far find is a request to seal a spreadsheet containing the names and addresses of multiple uninvolved third parties (Dkt. 325-14, Exh. 87).

. . . .

The United States District Court is not a wholly owned subsidiary of either TRT or Facebook Technologies. If the parties wanted to proceed in total privacy, they should have arbitrated this dispute. Instead, they brought this dispute to a public forum that belongs to the people of the United States, not TRT or Facebook. The United States people have every right to look over our shoulder and review the documents before the Court. The standard under Kamakana is not met for any document.

. . . .

All motions are DENIED.

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

The core claim was that Oculus VR used a design that founder Palmer Luckey created when he worked at Total Recall Technologies. Total Recall stated that Luckey was hired to design a virtual reality headset, for which Total Recall would have the exclusive rights. The plaintiff further alleged that Luckey took the design with him when departing the company, only to form his own company and use this design at Oculus VR. 

Total Recall is owned by a company called Convergint Technologies, a systems integrator. A systems integrator is someone who puts complex computer systems together and sometimes maintains them as well. It’s a well-established business category that includes some large organizations, but there’s lots of competition from other systems integrators.

These days, virtual reality technology is close to a license to print money and Oculus VR, owned by Facebook, produces one of the top-selling VR headsets, selling for several hundred dollars apiece and a first-class ticket for a child, teenager (or adult) into the exciting world of multi-player highly-realistic virtual reality gaming.

PG isn’t familiar with the details (which are likely complex) of this case, but suspects that Total Recall would make a great deal more money for its owners if it could get a piece of Oculus VR’s pie.

To bring this back to authors and their writings, the design of the VR headset that Palmer Luckey allegedly created for Total Recall and is, presumably, related to Oculus VR’s current products in a meaningful way, is intellectual property, just like the manuscript an author creates is intellectual property.

The document that is at the core of the dispute is a written agreement between Luckey and Total Recall signed many years ago under which Total Recall claims Luckey granted it rights to intellectual property that Luckey created.

In March 2014, Facebook acquired Oculus for $2.3 billion in cash and stock.

While the details differ, the underlying creator/publisher agreement governs rights to books an author writes falls into the same category of agreements affecting a creator’s rights to use her/his creations.

Photo of some of its products from Oculus VR

Warhol v. Goldsmith

From The Center for Art Law:

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

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

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

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

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

. . . .

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

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

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

. . . .

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

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

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

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

. . . .

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

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

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

. . . .

Fair Use Defense

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

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

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

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

. . . .

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

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

Link to the rest at The Center for Art Law

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

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

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

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

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

From the Stanford University Libraries:

What Is Fair Use?

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

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

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

Commentary and Criticism

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

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

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

Parody

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

Link to the rest at the Stanford University Libraries

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

Transformative Fair Use

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

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

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

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

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

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

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

There was a dissenting opinion in the Supreme Court case:

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

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

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

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

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

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

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

Legal/Philosophical Diversion – Feel Free to Skip

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

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

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

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

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

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

End of Diversion

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

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

Men feared witches

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

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

The Freedom to Read Statement

From The American Library Association:

The freedom to read is essential to our democracy. It is continuously under attack. Private groups and public authorities in various parts of the country are working to remove or limit access to reading materials, to censor content in schools, to label “controversial” views, to distribute lists of “objectionable” books or authors, and to purge libraries. These actions apparently rise from a view that our national tradition of free expression is no longer valid; that censorship and suppression are needed to counter threats to safety or national security, as well as to avoid the subversion of politics and the corruption of morals. We, as individuals devoted to reading and as librarians and publishers responsible for disseminating ideas, wish to assert the public interest in the preservation of the freedom to read.

Most attempts at suppression rest on a denial of the fundamental premise of democracy: that the ordinary individual, by exercising critical judgment, will select the good and reject the bad. We trust Americans to recognize propaganda and misinformation, and to make their own decisions about what they read and believe. We do not believe they are prepared to sacrifice their heritage of a free press in order to be “protected” against what others think may be bad for them. We believe they still favor free enterprise in ideas and expression.

These efforts at suppression are related to a larger pattern of pressures being brought against education, the press, art and images, films, broadcast media, and the Internet. The problem is not only one of actual censorship. The shadow of fear cast by these pressures leads, we suspect, to an even larger voluntary curtailment of expression by those who seek to avoid controversy or unwelcome scrutiny by government officials.

Such pressure toward conformity is perhaps natural to a time of accelerated change. And yet suppression is never more dangerous than in such a time of social tension. Freedom has given the United States the elasticity to endure strain. Freedom keeps open the path of novel and creative solutions, and enables change to come by choice. Every silencing of a heresy, every enforcement of an orthodoxy, diminishes the toughness and resilience of our society and leaves it the less able to deal with controversy and difference.

Now as always in our history, reading is among our greatest freedoms. The freedom to read and write is almost the only means for making generally available ideas or manners of expression that can initially command only a small audience. The written word is the natural medium for the new idea and the untried voice from which come the original contributions to social growth. It is essential to the extended discussion that serious thought requires, and to the accumulation of knowledge and ideas into organized collections.

We believe that free communication is essential to the preservation of a free society and a creative culture. We believe that these pressures toward conformity present the danger of limiting the range and variety of inquiry and expression on which our democracy and our culture depend. We believe that every American community must jealously guard the freedom to publish and to circulate, in order to preserve its own freedom to read. We believe that publishers and librarians have a profound responsibility to give validity to that freedom to read by making it possible for the readers to choose freely from a variety of offerings.

The freedom to read is guaranteed by the Constitution. Those with faith in free people will stand firm on these constitutional guarantees of essential rights and will exercise the responsibilities that accompany these rights.

We therefore affirm these propositions:

  1. It is in the public interest for publishers and librarians to make available the widest diversity of views and expressions, including those that are unorthodox, unpopular, or considered dangerous by the majority.Creative thought is by definition new, and what is new is different. The bearer of every new thought is a rebel until that idea is refined and tested. Totalitarian systems attempt to maintain themselves in power by the ruthless suppression of any concept that challenges the established orthodoxy. The power of a democratic system to adapt to change is vastly strengthened by the freedom of its citizens to choose widely from among conflicting opinions offered freely to them. To stifle every nonconformist idea at birth would mark the end of the democratic process. Furthermore, only through the constant activity of weighing and selecting can the democratic mind attain the strength demanded by times like these. We need to know not only what we believe but why we believe it.
  2. Publishers, librarians, and booksellers do not need to endorse every idea or presentation they make available. It would conflict with the public interest for them to establish their own political, moral, or aesthetic views as a standard for determining what should be published or circulated.Publishers and librarians serve the educational process by helping to make available knowledge and ideas required for the growth of the mind and the increase of learning. They do not foster education by imposing as mentors the patterns of their own thought. The people should have the freedom to read and consider a broader range of ideas than those that may be held by any single librarian or publisher or government or church. It is wrong that what one can read should be confined to what another thinks proper.
  3. It is contrary to the public interest for publishers or librarians to bar access to writings on the basis of the personal history or political affiliations of the author.No art or literature can flourish if it is to be measured by the political views or private lives of its creators. No society of free people can flourish that draws up lists of writers to whom it will not listen, whatever they may have to say.
  4. There is no place in our society for efforts to coerce the taste of others, to confine adults to the reading matter deemed suitable for adolescents, or to inhibit the efforts of writers to achieve artistic expression.To some, much of modern expression is shocking. But is not much of life itself shocking? We cut off literature at the source if we prevent writers from dealing with the stuff of life. Parents and teachers have a responsibility to prepare the young to meet the diversity of experiences in life to which they will be exposed, as they have a responsibility to help them learn to think critically for themselves. These are affirmative responsibilities, not to be discharged simply by preventing them from reading works for which they are not yet prepared. In these matters values differ, and values cannot be legislated; nor can machinery be devised that will suit the demands of one group without limiting the freedom of others.
  5. It is not in the public interest to force a reader to accept the prejudgment of a label characterizing any expression or its author as subversive or dangerous.The ideal of labeling presupposes the existence of individuals or groups with wisdom to determine by authority what is good or bad for others. It presupposes that individuals must be directed in making up their minds about the ideas they examine. But Americans do not need others to do their thinking for them.
  6. It is the responsibility of publishers and librarians, as guardians of the people’s freedom to read, to contest encroachments upon that freedom by individuals or groups seeking to impose their own standards or tastes upon the community at large; and by the government whenever it seeks to reduce or deny public access to public information.It is inevitable in the give and take of the democratic process that the political, the moral, or the aesthetic concepts of an individual or group will occasionally collide with those of another individual or group. In a free society individuals are free to determine for themselves what they wish to read, and each group is free to determine what it will recommend to its freely associated members. But no group has the right to take the law into its own hands, and to impose its own concept of politics or morality upon other members of a democratic society. Freedom is no freedom if it is accorded only to the accepted and the inoffensive. Further, democratic societies are more safe, free, and creative when the free flow of public information is not restricted by governmental prerogative or self-censorship.
  7. It is the responsibility of publishers and librarians to give full meaning to the freedom to read by providing books that enrich the quality and diversity of thought and expression. By the exercise of this affirmative responsibility, they can demonstrate that the answer to a “bad” book is a good one, the answer to a “bad” idea is a good one.The freedom to read is of little consequence when the reader cannot obtain matter fit for that reader’s purpose. What is needed is not only the absence of restraint, but the positive provision of opportunity for the people to read the best that has been thought and said. Books are the major channel by which the intellectual inheritance is handed down, and the principal means of its testing and growth. The defense of the freedom to read requires of all publishers and librarians the utmost of their faculties, and deserves of all Americans the fullest of their support.

We state these propositions neither lightly nor as easy generalizations. We here stake out a lofty claim for the value of the written word. We do so because we believe that it is possessed of enormous variety and usefulness, worthy of cherishing and keeping free. We realize that the application of these propositions may mean the dissemination of ideas and manners of expression that are repugnant to many persons. We do not state these propositions in the comfortable belief that what people read is unimportant. We believe rather that what people read is deeply important; that ideas can be dangerous; but that the suppression of ideas is fatal to a democratic society. Freedom itself is a dangerous way of life, but it is ours.

Link to the rest at The American Library Association

Businessman Charged with Running Elaborate Scheme to Defraud Amazon

From The US Attorney’s Office, District of Rhode Island:

The former owner of an East Providence automobile transport company . . . was arrested and charged today with allegedly executing an elaborate scheme to defraud Amazon.

It is alleged in court documents that Michael Chaves, 40, former owner of CAT Inc., executed a scheme to defraud Amazon through fraudulent transactions and theft of inventory through falsely represented returns. It is alleged that Chaves ordered thousands of products from Amazon and replaced the original products with lesser value replacements, often items different than the ones he originally ordered, before returning the packages to Amazon for refunds.

According to court documents, since March 2017, Chaves has held approximately 30 Amazon customer accounts under various names and email addresses.  Over this time period, Chaves’ accounts placed approximately 10,795 orders totaling approximately $713,970.78, most of which have been refunded based on Chaves’ return of the items purchased. Chaves received a total of approximately $643,324.04 in concessions or refunds on approximately 7,450 orders, including nearly approximately 7,200 items that were physically returned to Amazon. Many of the returned items were sent back in the original packaging in an attempt to deceive Amazon’s incoming inspection process. Amazon’s standard inspection process flagged approximately 149 of the returned items as potentially fraudulent, valued at $23,872.89.

According to court documents, while investigating Chaves’ fraudulent activities associated with his now defunct automobile transport company, Internal Revenue Service Criminal Investigation Division and U.S. Department of Transportation Office of Inspector General agents executed a court-authorized search of Chaves’ home and business.  At the business location, agents observed many opened and unopened Amazon packages and packaging materials. The room containing these items appeared to be a packing area for Amazon returns. The room contained a wide-ranging variety of items such as televisions, incense, European wall plugs (some for phone chargers), computer parts, small electronics, and a significant quantity of auto parts. At a later date, a United Parcel Service (UPS) driver told investigators that he would stop at Chaves’ business location every day delivering Amazon packages and picking up returns, often times dropping off an Amazon package one day and picking up the same package the next day as a return back to Amazon. 

According to court documents, currently Chaves has six active Amazon accounts. The majority of Chaves’ purchases and returns consist of auto and commercial motor vehicle parts. Chaves also purchased and returned many other non-vehicle related items, including, but not limited to; electronics including cellular telephones and televisions, household items including chandeliers, closet organizers, lawn sheds, lawn mowers and vacuum cleaners. Most of these items were returned in an unsellable condition.

According to court documents, Chaves’ schemes would, at times, include replacing an original product purchased with a substitute product which, at first glance, appeared similar to the original purchase. Other returns were placed in boxes to represent the approximate weight of the original product. Among the examples cited in court documents of purchases and fraudulent returns include Chaves having ordered a commercial truck tire and sending back two pieces of wood; Chaves having ordered Apple Air Pod Pros and returning an unopened package of mini light bulbs; Chaves ordering a vehicle suspension joint and returning an oil filter wrench; and Chaves ordering a stabilizer bar link kit and returned in its place doggie treats.

Chaves was arrested today by U.S. Department of Transportation Office of Inspector General and Internal Revenue Service’s Criminal Investigations Division agents, with the assistance of East Providence Police, on a federal criminal complaint charging him with wire fraud and mail fraud.

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

From Business Wire:

On Friday, March 12, The U.S. District Court of Rhode Island sentenced Michael Chaves to 30 months in federal prison for operating a fraudulent product return scheme and defrauding Amazon of more than $50,000, as well as other charges including bank fraud, wire fraud, falsification of records, aggravated identity theft, and tax evasion. Amazon supported the investigation, prosecution, and sentencing.

. . . .

Amazon has teams and systems in place to proactively detect, investigate, and stop suspicious behavior and prohibited activity. Amazon has an extensive history of protecting its customers from fraud and abuse.

Link to the rest at Business Wire

From The US Attorney’s Office, District of Rhode Island:

Chaves was sentenced on Wednesday by U.S. District Court Judge William E. Smith to 30 months in federal prison to be followed by three years of federal supervised release, announced Acting United States Attorney Richard B. Myrus Acting Special Agent in Charge of Internal Revenue Service Criminal Investigation Ramsey E. Covington, and Acting Special Agent-in-Charge Daniel Helzner, U.S. Department of Transportation Office of Inspector General, Northeast Region.

A restitution order will be forthcoming from the court. In addition to restitution to be paid in the fraud schemes connected to the operation of his auto transport company, the order will include restitution to be paid by Chaves to Amazon. It was alleged in court documents that Chaves defrauded Amazon through theft of inventory through falsely represented returns. It is alleged in court documents that Chaves ordered products from Amazon and, at times, replaced the original products with lesser value replacements, often items different than the ones he originally ordered, before returning the packages to Amazon for refunds.

Chaves’ alleged Amazon refund scams were discovered during the investigation by Internal Revenue Service Criminal Investigation and U.S. Department of Transportation Office of Inspector General into Chaves’ auto transport company.

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

PG doesn’t know the background of this particular matter, but the message from Amazon is that it watches for scams of all sorts and is capable of persuading federal law enforcement officials, including Internal Revenue Service Criminal Investigation agents (who are likely to be interested in any claim of financial fraud because fraudsters typically don’t report the fruits of their labors on their tax returns) to take the matters Amazon brings to them seriously.

IRS involvement means that, if for any reason, the criminal fraud claims fall apart, federal prosecutors can prosecute criminal charges for violations of the Internal Revenue Code.

That potential 1-2 threat is enough to persuade a lot of bad guys to plead guilty, even if they’ve managed to cover up some of the evidence of their involvement in the underlying fraud.

Amazon publicizes such prosecutions and convictions to help spread the word that anyone who would like to enjoy a richer long-term lifestyle than can be supported by their lawful labors should probably consider pursuing a softer target than Amazon in their pursuit of their goal.

If Amazon develops a reputation for providing detailed evidence to support a criminal fraud prosecution with federal and state prosecutors, District Attorneys, etc., they’ll find that almost anyone will take their call and schedule a meeting to review what Amazon has located.

It is very common for companies the size of Amazon to hire former law enforcement officials (often at higher salaries than they earned while working for their former agencies) to do this sort of work. Such men and women have a good idea about what it takes to prove a case and how to collect evidence to support criminal charges and successful prosecution of those charges.

Additionally, PG doubts Amazon’s people (unlike a few citizens without such backgrounds) ever try to mislead law enforcement officials due, in part, to the fact that everybody involved has the same backgrounds, values and character traits. They’re brothers and sisters who gain a great deal of personal satisfaction from putting bad guys away.

Foundry Lawsuit

From Locus:

Literary agency Foundry Literary + Media dissolved in September 2020, and some authors had trouble getting paid, with reports of checks bouncing as early as last No­vember The Authors Guild got involved, and some authors were subsequently paid by wire transfer, but others were not. The agency’s found­ers, Yfat Reiss Gendell and Peter McGuigan, split up to form their own separate agencies last year, YRG Partners and Ultra Literary.

Gendell initially blamed the problems with payments on the transition. The real cause of the situation remained unclear until January 18, 2021, when founder McGuigan filed suit against Gendell in New York Supreme Court, alleging breach of contract, fraud, and negligent misrepre­sentation. McGuigan says that Gendell criminally embezzled over $800,000 from Foundry accounts, made $45,000 in illegal charges to company credit cards, and even cut off McGuigan’s health insur­ance. McGuigan froze the company’s accounts when he began to suspect financial malfeasance, and says that’s the reason some client checks bounced. He also says he “dipped into his per­sonal bank accounts to pay some of the authors he represents, but several remain unpaid because of Reiss Gendell’s obstinance, and complete disregard for the authors that she represents.”

McGuigan seeks repayment, over a million dollars in punitive damages, and that “an injunc­tion or temporary receiver be placed over the operating and client funds account and that any and all money owed to any respective authors and clients of Foundry be immediately paid under the direction and oversight of the court or a temporary receiver.”

Link to the rest at Locus

PG notes that accusations and claims of wrongful behavior are being exchanged between the agency’s two principals.

PG suggests that one of the takeaways for traditionally-published authors is to always, always, always insist on split checks in your publishing agreements.

Split checks means that every royalty payment the publisher makes on an author’s books is divided between the author and the agent (typically 15% to the agent and 85% to the author) and the publisher sends the author’s check directly to her/him and the agent’s check directly to the agency.

That way, the agency never handles money that belongs to the author.

In PG’s experience and understandings from various conversations with traditionally-published authors and other sources, agencies provide a variety of reasons why it’s a better idea for the publisher to pay the author’s share of the money directly to the agency.

Without going into such reasons, PG will say that they are not good reasons. Agents may claim that it’s important that they receive the entire check so they can properly review the royalty statement from the publisher.

PG notes that, when there is a split checks agreement, the publishing agreements the agent procures provide that the author receives 85% of the royalties and the agent receives 15% of the royalties and that each royalty check is accompanied by a copy of the royalty statement. That way, the author and the agent receive copies of the royalty statement.

PG is reliably informed that all major publishers have at least one copy machine on their premises and, generally speaking, more than one of the publisher’s employees knows how to operate the copy machine. Hence, providing two copies of the royalty statement, one for the author and one for the agent, is not generally regarded as an onerous task even by the whiniest of publishers.

One additional point involves the typical relationship between an author and a particular agent in a literary agency. Despite all sorts of agency PR, an author is typically attracted to an agency by a particular agent who is working there. Jane Agent is the reason why the author is working with the agency, not whatever claims the agency makes about itself.

If the CEO of the agency is sexually harassing the interns or spending all day in conversations with various drug dealers and Jane Agent decides to move to a better work environment, Jane’s authors should be able to follow her to a new agency and instruct their publishers to designate the new agency as the agency of record for the author, thus transferring royalty reports, payments, etc., to the new agency.

Most traditionally-published authors rely on their agents to provide them with high-quality and unbiased business advice and counsel.

Just like attorneys and accountants and doctors can be fired and replaced at will, literary agents and agencies should also be subject to firing. The author should be free to stop paying the fired parties any money not be required to entrust the former agency with any money or be tied down by continuing contractual entanglements in the future.