Saturday, December 14, 2013

Copyright Half-Truths



12 COPYRIGHT PERMISSION MYTHS

By Lloyd J. Jassin


If you intend to use a copyrighted work, unless the use is considered a fair use, you must obtain permission. If you wish to be a commercially published author, those permissions must also be in writing.  Under federal law, only the copyright owner or someone acting with the owner’s authority, such as a publisher, can grant you permission to copy, adapt, distribute, display or perform a work. While not every unauthorized use of a copyrighted work is an infringement (e.g., ideas cannot be copyrighted, only the way in which they are expressed can be), whenever you borrow from someone else's work,  there are some basic copyright rules you should keep in mind.   

We've all heard them.  Copyright myths.  Here are twelve common copyright half-truths.  What you think you know can harm you.  So, don't try and convince yourself that any of these are absolutely true.       

1.       The work I want to use doesn't have a copyright notice, so I don't need permission.

Not true.  Since March 1, 1989 copyright notice has been optional.  Before that date, copyright notice was mandatory and a work published without a notice risked loss of copyright protection if not promptly and adequately corrected.

2.       If I give credit I don't need permission.

Not true.  Giving credit means you can look at yourself in the mirror and say you are not a plagiarist.  However, attribution is not a defense to copyright infringement, which, unlike plagiarism, is a legal offense.  Copyright infringement is the violation of one of the exclusive rights granted to copyright owners.  By contrast, you can plagiarize material not protected by copyright simply by taking credit for it.

3.       Since I'm only using a few words I don't need permission.

Not necessarily.  How much you can borrow is a legal gray area. Sometimes even a small (but important) portion borrowed from a larger work can infringe.  Keeping with the view that copyright law should encourage creativity and innovation, not unduly suppress it, courts may excuse certain socially productive, but unauthorized uses.  Those uses are called fair uses.  Fair use is an argument against the rigid application of copyright law. It is determined on a case-by-case basis.  It considers what's been borrowed, how much was borrowed, how it was used, its importance, and the economic impact it has on the original.  If you borrow the "heart" of a work, it weighs against fair use.       
 
4.       I don't need permission because I'm going to adapt the original work.

No.  You can't make a work your own by adapting it.  Copyright law grants  copyrights owners the exclusive right to control modifications to their work.  If you add, or even delete,  material from someone's work without permission, you have created an unauthorized derivative work. 

5.       Since the work is in the public domain, I don't have to clear permissions.

Not necessarily.  A book or motion picture, for example, may have fallen into the public domain for technical reasons, but there may still be copyrights to contend with.  While a book may be in the public domain, photos or other materials that appear in the book may remain legally protected.  Similarly, the composer of an in-copyright soundtrack, to an otherwise public domain film, can restrict the exhibition of that film by claiming a right to the music within.  While copyright in a photograph of a celebrity may no longer be in effect, if the image of the celebrity is used for commercial purposes, it may violate the celebrity's right to derive financial benefits from her likeness. Similarly, the owner of an expired copyright may still be able to stop the commercial use of a related trademark, if the use falsely implies their support of the use.         

6.       My publisher will handle the permissions.

Probably not.  Most publishers place that burden of clearing and paying for permissions on the author's shoulders.   

7.       I can always obtain permission later.

Later may be too late.  Copyright owners have the unfettered right not to grant you permission.  It is better to know now than later, that a critical component of your work cannot be cleared for use.    

8.       Since I'm planning to use my work for nonprofit educational purposes, I don't need permission.

Not necessarily.  The issue isn't the user, it's the manner of use.  If the use is a commercial use -- and it falls outside the bounds of fair use -- even a nonprofit educational institution can be held liable for copyright infringement.  

9.       I don't need permission because the work I want to use is more than 75 years old.

Not necessarily.  In 1998, Congress added 20 years to most copyright terms.  For works published after January 1, 1978, copyright protection lasts for the life of the author plus another 70 years.  For a pre-1978 work by a sole author, the maximum term of copyright protection is 95 years from the date the work was published or registered.  For works created by an employee, specially commissioned works, and works published pseudonymously, the copyright term is even longer.

10.      The material I want to quote is from an out-of-print book.   Out-of-print means that the work is in the public domain.  Correct?

Not necessarily.  Out-of-print does not mean out-of-copyright.  When a book goes out-of-print, it is no longer commercially valuable.  While that may trigger an author's right to recapture her copyright, it doesn't eject the book into the public domain.  

11.      A Creative Commons ("CC") license means I can use the material without permission. 

Yes, but restrictions may apply.  A CC license allows certain uses for free. What those allowable uses vary.  Some CC licenses place restrictions on commercial and uncredited uses.  Some permit modifications, others may not.  To determine what is allowable, you must read the license carefully.  
 
12.      I found a photo on Twitter.  Since it was uncredited, I can use it in my book.    

Not true.  Neither the ease with which users can upload or download online content, nor the fact that content was posted anonymously, places it in the public domain.
Twitter may claim a license to make the photo publicly available, but beyond your express right to retweet it, you are not free to take the photo and make commercial use of it.   


LLOYD J.  JASSIN has practiced publishing, entertainment and trademark law for over two decades.  He is an adjunct professor at NYU SCPS, where he teaches a course on digital rights and permissions.  He is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  Contact: The Law Offices of Lloyd J. Jassin, 1501 Broadway 12th FL, New York, NY 10036 | (212) 354-4442 (tel.); (646) 571-2001 (fax) | Jassin@copylaw.com | www.copylaw.com|Twitter

DISCLAIMER:  This article is not intended as legal advice.  Because the law is not static and one situation may differ from the next, the author assumes no responsibility for actions taken based on information contained in this article.  Be aware that the principles contained in this article are subject to exceptions and qualifications.  Thus, when in doubt, seek legal advice from an experienced copyright or media law attorney, or err on the side of caution, and obtain permission or an appropriate release.



Sunday, March 10, 2013

Kill a Reader, Save Book Publishing (via Content Branding)

"[L]ike antivirus software which  scans for suspicious files and protects your computer, a trademark filters high risk information."
Google promises that the quality of information found on the internet (whether on depression or leasing a car) can be inferred through its search rankings.  However, often the author's credentials are unclear or inaccurate, or the commercial sponsorship of a site masked.   Currency of information is another problem.  Absent editorial control, unbranded, free information can be unreliable - even harmful information.   

Despite these concerns, we rely on the free internet to make important health and financial decisions.  While malware and viruses can take down a computer, misinformation can take a life.  I believe that as consumers become more cynical of search ranking results and online reviews, branding's role will increase.
 
Kill a Reader, Save Book Publishing

Like consumer health, the internet has put the health of commercial book publishing at risk.  Among other things, it has depressed the value of commercial nonfiction.  According to the Association of American Publishers (AAP) StatShot report for October 2012, nonfiction sales are down.  So, how does an ailing industry compete with free?  What would it take to get readers to flock back to stiff backed hardcovers, quality paperbacks, or download a  pricey eBook? 


Simple.  Branding, and a seriously injured mushroom hunting enthusiast led astray by an anonymous Wiki contributor who misidentified a poisonous mushroom as a "safe" and delicious substitute for store bought 'shrooms.   Free information is shitty information. That's the "Got Milk" message the AAP  should shout from the roof tops.  Blogs and Wikis kill!   AAP member publishers bring great ideas to life!   Publishers need to leverage their reputation.  

If you plan to birth a baby at home, traverse the Mohave Desert on foot, or forage for edible mushrooms, consult a recently revised and updated "big six" (five?) book. Put another way, a publisher's brand is a useful indicator of content quality. 

Cue the Director of Communications of the AAP 


My advice?  Prey on making insecure people feel safe when they purchase your books.  "We publish books by noted experts that you can bet your life on." 
 
Tragedy could open a door for the AAP to extoll the virtues of curated non-fiction. The AAP's current value proposition is, "We are America’s premier publishers of high-quality . . . and professional content." As such, the AAP pitch letter to the media might read:

If you are working on any stories regarding the recent mushroom poisoning deaths and health risks associated with uncurated information found on the Internet, we at that Association of American Publishers can provide a publishing industry expert for any relevant stories you are working on. Wikis kill. We 'bring great ideas to life."
In a run up to a "negligent publication"  trial,  Nancy Grace  would comment that the injuries were foreseeable, and wouldn't have happened but for a poorly researched Wikepedia artice on edible mushrooms.  One of the talking heads on the split screen would be an AAP insider-publisher.  He'd talk about publisher as curator, author credentials, branded content - but avoid the issue of currency of information, as publishers have not yet realized that creating a long-term relationship with the reader begins with creating a long-term relationship with the content, i.e., periodic revisions and reader alerts.  The phrase "negligent publication" would earn a hashtag, as people start to Tweet personal stories about their detrimental reliance on shitty, that is, non-curated information.    

The Ninth Circuit Court of Appeals recently defined the term "negligent publication" in a media liability policy as "a narrow tort in which the publication of material encourages or instructs readers to engage in harmful conduct." The internet is rife with negligent information. The internet is a creepy, shadow universe of unverifiable facts, pedophiles, snake oil salesmen, substanceless self-promoters and sock puppets. Do I really believe this?  While there's truth in that statement, there are "flowers among the weeds."  

If you felt a tap on your shoulder as you read the above  paragraph, likely it was the First Amendment wishing to remind you that books are not products, and, historically negligent publication cases have gotten little traction in the courts. But, the value of a negligent publication lawsuit isn't in getting a conviction, it's the promotional value -- getting readers to question what they read.  And, to gain an appreciation for the value of a book curated by a reputable publisher. Cheap is dear. Upon big six (soon five) books you can rely. Blogs not so much.


Trademark is the New Copyright

The way I see it, trademark is the new copyright. It is the key to competing with free. Sock puppetry and fake online reviews,  further drives home the point that information quality and pedigree still matters.   Just like antivirus software which  scans for suspicious files and protects your computer, a trademark filters high risk information.  "Without trademarks to identify and distinguish products or services," John Oathout, author of Trademarks, says "consumers would have no basis for selection or rejection, or any assurance that a particular product is the product they are seeking." Regrettably, though, publishers have undervalued the goodwill associated with their colophons and imprints for years.

Whereas a trademark identifies goods, a trade name, like Random House, merely identifies a company. As Mr. Oathout points out, "Frequently, the same word identifies both the [producer] and the product. "The Random House Dictionary" for example. However, most books are identified solely by a generic (unprotectable) title, or the goodwill becomes associated with the author's (not publisher's) brand. If you are being disintermediated,  don't head for the exits by acquiring an assisted self-publishing company like Authors House.  Instead, rebrand your company as a trusted source, a marketer of books, and a policer of piracy.  

A Modest Proposal

If I were marketing manager of the Peterson’s Guides, I’d gladly forgo my entire field guide to North American mushrooms marketing budget ($0?), for one severely ill, penny wise, but dollar foolish, mushroom enthusiast who relied to his detriment on a Wiki, and a connected Howard Rubinstein Public Relations account exec.   

Seriously, if publishing houses wish to remain standing, their colophons and imprints need to stand for something.  Alfred A. Knopf (the man, not the imprint) was keenly aware of that when he wrote The Borzoi Credo, a publishing manifesto which appeared in the November 1957 issue of The Atlantic Monthly.
I believe that a publisher's imprint means something, and that if readers paid more attention to the publisher of the books they buy, their chances of being disappointed would be infinitely less.
Of course, Knopf was talking about trademarks.  Trademarks identify the source and quality of a product.  Trademarks accrue goodwill, a valuable intangible asset, for the publisher.  If you are familiar with Vertigo comics and graphic novels, you know in advance something about the level of quality of their publications before you make a purchase.  From a marketing perspective, most major book publishers (but, not Harlequin) get failing grades.  While familiar to booksellers, publishing imprints do not, as a rule, resonate with readers.  But there are exceptions.  If you own or collect vintage vinyl, you get it.  The allure of specialty labels equates with the loyalty certain indie presses enjoy. Melville House is ESP Disk.  Akashic is Stiff Records.  Ig is Verve Records.  These brands -- like series titles -- communicate with prospective purchasers.  

Conclusion

As part of the AAP's  efforts to fend off  the digital barbarians, the EFF'ing advocates of free, Google Books, the recession, etc., they need to remind readers that their premier publisher members edit the books they publish.  They provide high-quality entertainment, education, scientific and professional content that you can bet your life on.  Read with confidence.  Download with confidence.    

Yes, flagrant flackery can save book publishing. 

Disclaimer:  This is a satire. A book published by a commercial publisher can be as dangerous to you health, wealth and well being as a blog written by a self-appointed expert, or a self-published book on a trending topic like safe self-surgery (#SSS).  As the authors of a study on the quality of web based information on the treatment of depression wrote, "The real challenge is to devise strategies that selectively eliminate the weeds but leave the flowers to bloom." Let the reader beware!


Keeping with the mushroom theme . . .
Grace Slick & The Jefferson Airplane
"White Rabbit"

Resources

Alfred A. Knopf's (the man, not the imprint) Borzoi Credo


Winder v. GP Putnam's Sons (9th Cir. 1991) (Federal Appeals Court Decision concerning mushroom enthusiast who became seriously ill picking and eating mushrooms after reading The Encyclopedia of Mushrooms) 

Quality of web based information on treatment of depression: cross sectional survey Griffiths, K., Christensen, H.
 


Friday, December 21, 2012

Copyright Owners (and Heirs) Can Break Contracts & Recapture Copyrights



A Passing Opportunity to Break Bad Contracts


The copyright termination time bomb is ticking away.  In 2014 alone, copyrights to thousands of the publishing and entertainment industry's cash cows -- backlist books and song catalogs -- will revert to authors and their families.  Some call it "contract bumping."  This powerful "re-valuation mechanism" found in the Copyright Act allows members of the art, literary and music communities (and their heirs) to break contracts 35-years after the date of initial publication.  The termination right trumps written agreements -- even agreements which state they are in perpetuity.  Also known as “termination” or “recapture” rights, the time is ripe to send termination notices for works published between 1978 and 1989.

Invisible "Reset" Button Levels the Contractual Playing Field

Designed to protect authors of older works, who,
in hindsight, signed away their rights for less than adequate compensation, Congress devised a "reset" button that wipes out bad copyright contracts.  

Provided authors (or their heirs) satisfy the statutory notice requirements and maneuver properly, they can break any post-1977 copyright contract, provided it isn't a true work-for-hire agreement.

If served with a Notice of Termination, publishers and record labels must renegotiate their dusty contracts. If  those negotiations fail, creators or their successors  regain control of their copyrights.  What is a threat to old school entertainment and publishing companies, is otherwise an opportunity for a cheaper, more flexible kind of publishing. The ability recover copyrights, combined with access to a plethora of self-directed digital publishing and media solutions, gives the creative community a unique opportunity to reasses their business relationships


The Mechanics of Copyright Termination

The termination right applies to grants of copyrights signed on or after January 1, 1978 by the author --it does not apply to grants or licenses signed by, or on behalf, of an author's heirs.   So, family members must be careful what they sign. As long as the work being terminated is not a “work made for hire,” the right of termination cannot be waived -- even if there are contractual provisions to the contrary. In short, copyright law trumps contract law. 

For an author or songwriter agreement entered into on or after January 1, 1978, the agreement can be terminated, and copyright recaptured, during a five year period beginning the earlier of 35-years after publication; or 40- years after the contract was executed.  Succinctly stated, “Termination may be exercised at any time during a period of five years beginning at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever is earlier.” 

The date termination takes effect is determined by the author or his heirs, not the Copyright Office.  The Notice of Termination must be sent within a specific time window, between two and 10 years prior to the effective date of termination.  The process is not considered complete until the properly drafted Notice of Termination has been recorded with the Copyright Office, which must be prior to the date of termination.   

Example 1: If a book contract was signed in 1978, and the book published that same year, rights could have been recaptured as early 2014, i.e., 35-years after initial publication .  In this instance, the author (or his heirs) would have had to serve a notice of notice of termination in 2004, i.e., ten years before the recapture date. 
And, the latest a notice of termination can be sent is 2016 -- two years before the last available termination date. 

Like the deed to a house, a Notice of Termination filed with the Copyright Act becomes part of the copyrighted work's chain of title. If anyone were to review the Copyright Office’s database, the artist, author or composer's name will show up in the "notice of termination” document.  

Use it or Lose it


As you have read, the rules governing termination are dense.  They can also  be unforgiving.   Calculating the notice and recapture dates is the author or composer's sole responsibility.  The Copyright Office does not provide forms, and they cannot calculate the notice and recapture dates for you.  Ergo, consult with a knowledgeable copyright attorney -- not your average wills or estate planning attorney. 


Often, trusts and estates attorneys know little about copyright law.  Do not consult your book or music publisher, as they hope you  never read this article.  All that is necessary for your publisher to win the copyright termination game is for you to do nothing.  

Clawing Back Rights to Pre '78 Works


While the current focus is on works published after 1977, the Copyright Act also gives creators and their families (if the creator is deceased) an opportunity to terminate pre '78 contracts and, dramatically, challenge (or rewrite)  an author's will.  This subset of the Copyright Act, provides for recapture of rights any time during a five year period beginning at the end of 56 and 75-years from the date the copyright was secured.  The reasons for this are explained below.


Omitted from a Will?  The Act Trumps a Copyright Creator's Will  

Sacrosanct as wills may appear, Congress wanted copyrights to go to an author's family according to federal rules -- not state law.   So, it may come as a big surprise that a will is not the final word on who gets a deceased creator's pre '78 copyrights.  It's worth repeating.  The Copyright Act, not an author's will dictates who receives the author's copyright interest in death.  And, unlike state law will contests, you don't have to prove suspicious circumstances surrounding the drafting of a will to challenge it.  Where a spouse or child has been intentionally or unintentionally omitted under a will, the spouse or child (including adopted children or those born out-of-wedlock) are entitled to claim recapture rights.  But you may ask, "What are they recapturing?"  Over time, Congress lengthened the original 56-year copyright term to 75-years, and again from 75-years to 95-years.  The recapture rules allow heirs to claim the bonus 39-years copyright (or, in the case of works published in the late 30's, the final 20-years) Congress tacked onto the original, shorter copyright term.

Another termination quirk, exemplified by example two below, allows family members to recapture a full 67-years of copyright if the creator died within 28-years of initially publishing the work.        

Example 2. Miles Davis, the jazz icon, died in 1991, before the end of the 28th year of copyright of his revolutionary 1970-album Bitches Brew. Because he died before the 28th year of copyright, his renewal term rights in the song Bitches Brew vested automatically in his four children according to the Copyright Act -- cutting off  his brother, sister and a nephew mentioned in his will. Today, his sons (two of whom were not included in their father's will) and his daughter, jointly control the remaining 67-years of copyright in Bitches Brew and other songs. Here, the Copyright Act rewrote both Miles Davis' will and songwriter agreements.

Similarly, in 1938 Jerry Siegel and Joe Schuster, two young men from Cleveland, Ohio, signed over all of their rights to the Superman character to DC Comics for $130.00 and vague promises of future work.  Starting in 1999, using Section 304 of the Copyright Act, Siegel’s heirs recaptured his rights to the Superman character.  Similarly, the estates of James Baldwin, Truman Capote, William Saroyan, Lorenz Hart, as well as children born out-of-wedlock to 
creators and composers like Hank Williams, have availed themselves of these valuable rights.



"To Do" List for Authors & their Families

Review Old Files.  If ever there was a time to review old copyright files, it's now.  If you can, locate copies of old contracts and license agreements.  Make a list of titles and publication dates.  If the author or creator is deceased, compile a list of possible heirs.  


Don't Dawdle.  Doing nothing is not an option.  If you simply do nothing, the termination window will close.   

Copyrighted or Published Between 1936 & 1977? Contact us for a termination screening to determine if you are eligible to recapture your copyrights.

Contract Signed After 1977?  Contact us for a termination screening to determine if you are eligible to recapture your copyrights.   

Published After 1977?  Contact us for a termination screening to determine if you are eligible to recapture your copyrights.

Don't sign anything without consulting an attorney.  It's easy to inadvertently waive the termination right.  Regrettably, time-and-money crunches cause some people to basically just say “yes” to what is put in front of them.  Don't be one of those people. Congress provided only one do-over
This is it. 


Alert!  If you invoke your termination right, and re-grant rights, you may have to live with that second deal.  That is what happened to Christopher Robin who re-granted rights to Winnie-the-Pooh to Disney in 1983.  That agreement to re-grant rights cut off his daughter's right terminate the original 1930 agreement signed by her grandfather, A.A. Milne.  The lesson in all of this is don't sign anything without consulting a copyright attorney. 

Negotiate.  If authors wish to renegotiate the terms of an existing contract, they must wrestle with contract details that seem daunting.  Don't make the same mistake twice.  There is no such thing as a standard agreement.  Contract provisions such as advances, royalty rates, fees, the grant of rights and  territories, the duration of the agreement, the right to create new works based on the old, are all negotiable. If you retain us to represent you, we will negotiate with your original publisher on your behalf.

Terminate.  Original publisher not an option?  Consider taking control of these rights yourself, or entrusting them to another partner for better terms, including a new advance, higher royalties, catalog promotion, etc.  Again, if you retain us to represent you, or your family members, we will negotiate with your new publisher on your behalf, or help you to set up your own publishing company   

Don't Assume Your Estate Planning Attorney Understands Any of This.   

Suffice it to say, due to its complexity, and the dearth of case law interpreting the copyright termination statute, it's not surprising that agents, as well as many trusts and estates attorneys, are not conversant in the ins-and-outs of this esoteric topic.  We are happy to work cooperatively with your trusts and estates attorney.  

Maneuvering the Other Complexities

There is also a whole emotional side to copyright termination. These are not just business and financial decisions, but decisions that may involve family members, and the revisiting of past relationships. Fortunately, the invisible copyright "reset" button found in virtually every copyright grant or license, and certain wills, also has the potential to set right injured relationships -- provided the focus is on the future, not past injustices.  

It's Time to Break Bad Contracts and "Bump" Wills

With the exception of true "works for hire," it is not hypothetical speculation to say that every author contract entered into on or after January 1, 1978 is vulnerable to termination.  To that end, we can we can: (i) identify which copyrights are eligible for termination; (ii) determine who is the proper party to exercise those termination rights; (iii) prepare and record your Notices of Termination; (iv) assist you recover rights to copyrighted works you thought were irrevocably assigned or bequeathed to others; (v) help you negotiate new, better contracts; and, if requested (vi) work cooperatively with your trusts and estates attorney on reopening an estate. 


The opportunity to break or renegotiate a contract comes around just once every 35-years (if a pre '78 work, that's once every 56 or 75-years).  If what you sign is a revoke and re-grant of rights agreement, you (or your agent) may be signing away valuable rights for less than market rate.  Contact us to discuss business and legal strategies.

Contact us at jassin@copylaw.com 

The Best 1978*

Select Backlist Books


 1. The Stand - Stephen King

2. Eye of the Needle - Ken Follett

3. The House of God - Samuel Shem

4. The Far Pavilions - M.M. Kaye

5. Holcroft Covenant - Robert Ludlum

6. Chesapeake - James Michener

7. If Life Is a Bowl of Cherries . . . - E. Bombeck




 Select Songs (artist, not composer shown)

1. Is This Love - Bob Marley

2. Le Freak - Chic


3. My Life - Billy Joel

4. Life's Been Good - Joe Walsh

5. Night Fever - The Bee Gees

6. Miss You - The Rolling Stones

7. YMCA - The Village People


*For a work published on January 1, 1978 the latest the termination notice can go out is January 1, 2016


NOTICE: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.
 

Contact:  Jassin@copylaw.com or at (212) 354-4442. Law Offices of Lloyd J. Jassin, The Paramount Bldg., 1501 Broadway, Floor 12, New York, NY 10036.

(c) 2011 - 2014. Lloyd J. Jassin