Thursday, February 4, 2016

No Copyright Infringement Intended (Yeah Right)


Empty Heads
 
"No Copyright Infringement Intended" appears next to countless YouTube videos and other online works. However, it is a hollow disclaimer.  There is no pure heart and empty head defense to copyright infringement.  Copyright is what is known as a strict liability tort. If the use is unfair (i.e., not a fair use), a plaintiff does not have to prove any knowledge or intent to make its case.
In the Harrisongs case, the court determined that George Harrison's My Sweet Lord subconsciously infringed the Chiffons’ 1963 hit He’s So Fine.   Innocence is only significant when it comes to calculating monetary damages and attorney's fees.  Bad-faith infringers are treated more harshly than innocent ones.
When Mark Twain was accused of subconsciously cribbing the dedication to the ironically titled The Innocents Abroad from a book of poems by Oliver Wendell Holmes, he quipped, "Adam was the only man who, when he said a good thing, knew that nobody had said it before him.”  An argument can be made that "No Copyright Infringement Intended" trumpets the fact that the defendant knew they were infringing, or recklessly disregarded that possibility.  If the infringement is willful, or your behavior reckless, a court can award up $150,000 per infringement together with attorney's fees.
As George Harrison learned, under copyright law, ignorance (or innocent intent) is not bliss. If you intend to use or reuse someone else’s copyrighted work, first educate yourself about fair use, the public domain, and what is - and isn't -- protected by copyright.
 
Resources
Fitzgerald Pub. Co., Inc. v. Baylor Pub. Co., Inc., 807 F. 2d 1110 - Court of Appeals, 2nd Circuit 1986

ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F. 2d 988 - Court of Appeals, 2nd Circuit 1983



 

Friday, December 4, 2015

Outside of a Dog # 4: Authors Experiencing a Slump in Earnings

Outside of a Dog is an irregular series that features publishing wisdom from a variety of classic and contemporary sources. As a lawyer, I'm fascinated by the economics and entrapments of publishing contracts and cases.



"It is better to have a permanent
income than to be fascinating."
                   - Oscar Wilde
How are authors paid?  Generally, poorly.  So poorly, that in 2015, a record number of authors applied to the Society of Authors for financial assistance.   

While there is a romantic Left Bank notion of the self-sacrificing writer turning their back on convention, proper writers must eat. To that point Samuel Johnson said, "No man but a blockhead ever wrote except for money." 

There have been many bitter remarks written about the size of book advances and the economics of traditional book publishing.  Mid-list authors, demoralized by anemic advances, whose royalty accounts are perennially in-the-red, should take note that publishing is an equal opportunity abuser.  Calvin Trillin, Edgar Allan Poe, and even the poet Horace have groused about the meager earnings and economics endemic to the publishing industry. What follows is a sampling of those author grumblings (and a discussion of how author advances are calculated).

Publishing Monkey Business

In the 1932 comedy Monkey Business, Groucho Marx says “Oh, I know it’s a penny here and a penny there, but look at me. I worked myself up from nothing to a state of extreme poverty.” The line, attributed to screenwriter, S.J. Perelman, is an apt statement about typical author earnings, which, according to the Authors' Licensing and Collecting Society has fallen by 29% since 2005.

Perelman was a thorn in the side of  his editor, Bennett Cerf, when it came time to negotiate his book contract with Random House.  In response to Cerf's refusal to increase his book advance, Perelman, the Algonquin Round Table wit, countered: “I am afraid that a $250 advance is mandatory; after fourteen months of my life on my Sabine farm, I have practically no worms to drop into the bills of my young and the movie business isn’t helping to any degree.” Marshaling all the right arguments, he added that Cerf would be better served by sending him back to his typewriter with a “happy grin and a high heart,” than "leaving his money to an animal hospital."

A talented humorist, he kept his sense of humor while wrapping wrapped up negotiations with Cerf:   “[C]all in Swaine, Cravath, deGersdoff & Wood and draw up those tortuous contracts.  I’ll have Samuel Untermyer [Perelman's attorney] go over them (I pay him fifty or sixty thou a year just to handle my book contracts) and send them on without delay.”  While a notorious penny pincher, Perelman understood the value of having a fountain pen-for-hire to look over his contracts. 

The Strange Relationship Between Writers & Money 

Unlike Perelman, author Kurt Vonnegut had a different relationship with money and the writing process. Rebelling against the "more is better" approach to advances, he advised his son (author Mark Vonnegut) “to carry on without an advance” while working on his first book. You can read the complete letter he wrote to his son in Kurt Vonnegut: Letters, but here's an excerpt:
I have mixed feelings about advances on first books. They are hard to get, for one thing, and are usually so small that they tie you up without appreciably improving your financial situation. Also, I have seen a lot of writers stop writing or at least slow down after getting an advance. They have a feeling of completion after making a deal. That’s bad news creatively. If you are within a few months of having a finished, edited manuscript, I advise you to carry on without an advance, without that false feeling of completion, without that bit of good news to announce to a lot of people before the job is really done.
How Book Advances Are Calculated

When a contract is negotiated between an author and a publisher, the author is generally paid a nonrefundable advance against future royalty income. That means the author won't see another dollar until the advance is earned back. One of looking at the advance is that it is the bet the publisher is placing on the book.  Regrettably, traditional publishers are buying fewer books, and advances have been heading south for over a decade.  

While there is no set formula, publishers base advances on the number of copies they project to sell in first six months to a year after a book first goes on sale. Clearly, Perelman's publisher, Random House, was not expecting much.  To calculate an advance, a publisher looks at what the royalty payout to the author is on each copy, then multiplies that by the number of copies they project to sell (less a deduction for anticipated returns).  If a publisher pays an advance of $50,000 for a first novel,  assuming a royalty of 8% of a cover price of $19.95 (think trade paperback original), or $1.59 a copy, that means the publisher will have to sell more than 31,446 copies before the advance is earned out and the author earns a dollar more than the $50,000 already paid to her.  For this reason, during negotiations it's important for an author to ask how many copies the publisher thinks it will sell, and at what price.  If you are fortunate enough to be taken to lunch before an offer is made, a good time to slip in the "How many do you think you can sell?" question is after the first glass of wine has been polished off.  In vino veritas.

Trillin's Extravagant Lunch Principle

Many books have been written about contract negotiations. Attorney Mark Levine offers his industry specific insights in his excellent book Negotiating a Book Contract.  However, Calvin Trillin's brand of contract advice is colored by a an insider's cynicism fed by extravagant author lunches and familiarity with the entire publishing scene - not a law degree. His singular advice is “the advance for a book should be at least as much as the cost of the lunch at which it was discussed.”  

A corollary to Trillins’ formula governing advances: The cost of clearing permissions should never exceed the size of the advance.  Think carefully about the book you want to write as the cost of  clearing rights to previously published material can bankrupt you.  


I witnessed an interesting variation on Trillin’s Extravagant Lunch Principle when I worked at St. Martin's Press. Jimmy Ernst, son of surrealist painter Max Ernst, died on the first day of the tour for his poignant  and well-written memoir, A Not So Still Life.  I was his publicist. How do you do to promote an authorless autobiography?  The following week, Jimmy's literary agent, my boss and I (unofficial members of the three hours for lunch club) met for lunch at The Russian Tea Room, on of New York's most extensive restaurants.  During lunch we planned a modest book publication party. When I returned to the office, I submitted my marketing plan for budget approval. To my surprise, the budget was not approved.  However, my expense voucher for the $400 lunch -- at which the $400 publication party was discussed -- was.               

You Can't Make a Living, But you Can Make a Killing in [Publishing]*

Thackery wrote "the rewards of the profession are not to be measured by the money standard."  While the size of that advance is not always an accurate predictor of a book's success, an author who receives a small advance invariably receives less promotion and publicity than one who receives what PublishersMarketplaceThe Daily Variety of the publishing industry, calls good deal ($50,000 - $99,000), or a significant deal ($100,000 - $250,000).  nice deal ranges from $0 - $49,000.   

But, it's not all doom and gloom for the recipients of a nice deal. Tom Clancy's The Hunt for Red October ($5000), published by The Naval Institute Press, went on to sell millions of copies. Terry Pratchett, Stephen King, Jacqueline Susann, and JK Rowling all received small advances for their first books, which goes to show that publishing is a perplexing business where small bets can pay off big, and big ones can come back to haunt you.

According to Victor Bohnam Carter's book, Authors by Profession, John Milton, in the midst of a financial crisis, signed a hellish publishing contract for his epic poem, Paradise Lost.  “The agreement was dated April 27, 1667, and provided that Milton receive £5 for the first edition or impression of 1300 copies,  £5 for the second, and the same for the third.”  During his lifetime, Milton received a total of £10 from his publisher Samuel Symons.  Milton’s widow later sold the copyright to Symons for £8.   Edgar Allan Poe died virtually penniless, having risen above the poverty line only once during a fourteen year period between 1835 and 1849.  Similarly, Walt Whitman lived his whole life in poverty.  To paraphrase Kinky Friedman, they were ahead of their time and behind on the rent.  

Things were no better for authors in ancient Rome.  How do we know?  The poet Horace (who coined the phrase “carpe diem”), grumbled loudly that his works brought the Sosii brothers (his publishers) gold, but, him, only fame.  Hic meret aera liber Sosiis, hic et mare transit, Et longum noto scriptori prorogat alvum. — (Art. Poet., 345)

UK publisher, Michael Joseph in his autobiography, The Adventure of a Publishing  writes:
I do not believe that the terms of a contract are often the reason for an author’s dissatisfaction, as may be supposed.  There are barrack room lawyers among authors, but they are very few.  For the most part authors are content with the terms they receive.  If they have an agent, the publisher cannot be held responsible; if they have not, they usually have little understanding of royalty scales and advances and are grateful for what they receive." Joseph went on to say that "nowadays there can be few publishers foolish enough to underpay their authors.  
Joseph was living in a pre-Kindle world.  In his day, traditionally published authors would accept low royalties in order to get their books to market.  That was before the self-publishing revolution.  Today, many authors are saying no to 25% royalties offered by traditional publishers, opting for self-publishing, where they can receive 70% of the list price of an eBook sold on Amazon.  At the same time, it's not uncommon for published authors to jump from house to house, seduced by financial offers from competing publishers.“I never saw an author in my life,” wrote Oliver Wendell Holmes, “saving perhaps one, that did not purr audibly as a full grown domestic cat on his fur smoothed the right way by a skilled hand.” 

Conclusion

In a 1956 letter to travel writer Leila Hadley, S.J. Perelman shared his philosophy about the business of publishing: “[T]he only rule of thumb I know is, get the biggest advance you can (which in turn forces them to try to recoup their investment) and be as demanding on advertising, publicity, etc. as is consonant with your decency.”  Categorizing the common practice of only advertising a book after it begins to sell as “Alice-in-Wonderland” thinking, he urged Ms. Hadley to “be on the ground and participate in all the Martha Dean, Tex and Jinx, and TV panels merde you can evolve.”  Not bad advice.  


*apologies to Robert Anderson who once said: "You can make a killing on Broadway, but you can’t make a living."

Related Posts


Outside of Dog #1: Mark Twain's 1900 eBook Contract

(http://www.copylaw.org/2010/02/mark-twains-1909-e-book-deal.html)

Outside of a Dog#3:  Poe's Legal Woes

http://www.copylaw.org/2011/12/inside-dog-quarrel-among-literati.html)



Wednesday, November 25, 2015

What Every Author (and Publisher) Should Know About Media Perils Insurance

By Lloyd J. Jassin & Steven C. Schechter

Adapted from their Copyright Permission and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers 

Publishing is a risky business.  Copyright infringement, defamation, right of
privacy are just three of the media perils authors, and their publisher partners, must contend with every day.  In addition to providing your own insurance by becoming well-versed in fair use, and clearing rights to preexisting materials when permission is required, you can manage risk with insurance that will pay the cost of defending your right to speak freely.

Media perils policies are available to authors and publishers to protect against intellectual property and defamation claims. These policies generally cover claims of copyright and trademark infringement, invasion of privacy, defamation and other contextual errors and omissions. Some policies even cover claims of misappropriation of ideas, as well as a number of other media perils. Most of these policies also cover the costs of defending a lawsuit, including attorney's fees and court costs.

What Should I Look for in a Media Perils Policy?

Insurance policies vary widely. It is important to emphasize that Comprehensive General Liability insurance ("CGL") policies, that many businesses carry, do not cover most of the types of claims discussed in this article. However, if you are sued, or threatened with a lawsuit, your attorney should consult your CGL policy to ascertain the scope of protection - if any - offered.  In the following section we discuss what questions you need to ask when shopping for a media perils insurance policy.

1. Does the Policy Cover Attorneys' Fees?

Determine if the policy provides coverage for legal fees and defense costs, as well as payment of damages. Some policies have defense costs within the limit of liability, while others offer defense costs in addition to the limit of liability. Defense costs outside the limits of the policy provide broader coverage.  Other policies require you to obtain approval before incurring any attorneys' fee or expenses. It's also important to determine whether the policy requires the insurance company to defend a lawsuit against you.  If it does, you can save a tremendous amount of money in legal fees.  A secondary concern is whether the policy will allow you to choose your own defense counsel. 

2. Does the Policy Cover Punitive Damages?

Another key point to investigate is whether the insurance policy covers punitive or exemplary damage awards. Some states, such as New York, do not permit insurance companies to insure you against punitive damages. Because an award of punitive damages may be substantial (sometimes even more than actual damages and attorneys' fees), where permissible, you should make sure that your insurance policy will cover any punitive or exemplary damage award. 

3. Does the Policy Require a Lawyer's Opinion?

Many insurers will not issue a media risks policy unless the publisher, or author, provides an opinion letter from a publishing lawyer analyzing the risks of a lawsuit. While the cost of hiring a lawyer to vet your manuscript can be significant, it is another form of insurance in and of itself.  However, it is a cost that should also be taken into account when comparing policies and their rates.

While more common when insuring a film production, some policies will not insure the title of a work unless they receive a lawyer's title report.  While titles are not protected by copyright law, some may fall under the rubric of trademark law, especially titles that evoke an established brand, thus, creating a likelihood of confusion as to source or association with that brand.  Therefore, the cost of obtaining a title report should should be taken into consideration when shopping for coverage.  

4. What Types of Claims Are Covered?

It is important to speak with an insurance broker familiar with this type of coverage to find out exactly which types of claims are covered and which are not. For example, some policies cover claims of intentional infliction of emotional distress or misappropriation of ideas, while others do not. Other insurance policies offer optional coverage, for an additional fee, for claims for bodily injury or property damage resulting from negligent advice or instructions.

All writers and publishers should obtain a policy that covers, at a minimum, claims of libel (written defamation) slander (spoken defamation), invasion of privacy, violation of the right of publicity, copyright infringement, trademark infringement and unfair competition. Obviously, the more types of claims covered, the better the policy. Many insurance policies exclude certain claims, such as those alleging intentional or malicious acts, from coverage. It is important to find out what types of claims are excluded, as you will bear the cost of defending excluded claims yourself.

5. Which Versions of the Work Are Covered?

You should investigate whether the insurance policy will cover more than one version of your work. If your work will be published in hardcover, paperback, traditional eBook and multimedia form, make sure the insurance policy covers all of those versions.  Additionally, find out whether the policy covers condensed versions, serializations, audiobook and other versions of your work. Similarly, you should find out if coverage extends to book jackets, flap copy, press releases, advertising and promotional materials (including catalog copy and companion blog),  interviews and personal appearances.

6. Where Is the Policy Effective?

It may seem like a simple question, but many policyholders fail to ask whether their policy covers claims outside the United States. Most insurance policies cover claims only brought in the US. If your work is going to be distributed outside of the United States, you'd better make sure that your insurance policy will cover claims and lawsuits brought in any country where your work is sold, or translated.

7. Is the Policy a "Claims Made" or "Occurrence" Policy?

There are two types of insurance policies: "claims made" policies and "occurrence" policies.  An occurrence policy offers broader coverage.  A "claims made" policy covers claims made during the policy period, whether or not the actual activity which gives rise to the claim occurred before the policy came into effect. An "occurrence" policy covers material published during the policy period.  If your policy is a "claims made" policy, and a lawsuit or claim is brought the day after your policy expires, the insurance policy will not cover the claim even though the acts giving rise to the claim occurred while your policy was in effect. Alternatively, with an occurrence policy, it doesn't matter when the claim is made. As a rule, you should avoid "claims made" policies.

8. Settlement

As an author or publisher your freedom of speech or press rights are protected under the First Amendment of the United States Constitution, as well under most state constitutions.   Therefore, it's important to ask the broker if the policy gives you input into the selection of a qualified First Amendment or media defense counsel. 

Insurance Policy Prices

The premiums for media insurance policies vary depending a number of factors, including the amount or limit of protection you elect.  The premiums generally take into consideration several additional factors, including:


Whether you consulted a qualified publishing attorney. Most insurers allow rate card credits to authors and publishers who have their manuscripts reviewed by an experienced publishing attorney.
The type of book. For example, the premium for a science-fiction novel will be less than that for an investigative report, or roman a clef, which might result in a lawsuit for defamation or invasion of privacy.
Whether releases and permission forms have been secured, and if their scope cover all the uses, versions and editions of the work during the term and throughout the territory in which the work will be exploited.      
Whether you've cleared the title of the book.
Whether any claims have been threatened.
The amount of coverage sought and the deductible. As coverage goes up, so do the premiums, but as deductibles go up, premiums go down.
The writer's experience and reputation.
If you are a publisher, the adequacy of the author or other contributor's contractual representations and warranties as to originality of content and factual accuracy of information.  
The use of appropriate disclaimers.
          The revenues you expect to derive from the sale of your work.  


If you are an author, you can ask your publisher to name you as an additional insured under their media perils policy, if they carry one.  However, don't be lulled into a false sense of security, as these policies often have very high deductibles, which are used to lower the publisher's insurance costs. 

If there is already a claim made against a book, an insurance company may refuse to insure you, or exclude the preexisting claim.   For this reason, think twice about publishing all or part of the book online, or in a magazine or newspaper before the official book is published.

INSURANCE CHECKLIST

While not an exhaustive list, here is a checklist of points to raise with the broker when shopping for a media perils policy:

          What types of claims are covered?  

     
          What is the period of coverage? 
What is the deductible and the limits of coverage for each claim? 
Are legal fees and defense costs covered separately or in addition to the maximum policy coverage? 
What are the conditions for coverage, i.e., is prepublication review and an opinion letter by an attorney required? 
Who is covered (publisher, author, or both)? 
Is there an additional charge or fee for naming an author as an "additional insured" party? 
Are lawsuits outside the United States covered? 
Is the policy a "claims made" policy or an "occurrence" policy? 
Does it cover translations or other editions of the work (e.g., mass market paperback, trade paperback,  eBook versions, etc.)? 
Are punitive damages covered? 
Do you have the right to have your own attorney represent you or does the insurance company require their attorney? 
Can the insurance company settle a case without your approval or do you have the right to approve settlements?
Resources

Organizations such as the Authors Guild and National Federation of Press Women, offer its writer members affordable media perils insurance policies. If you are a small independent publisher, contact the Independent Book Publishers Association (IBPA). 

DISCLAIMER: 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.

LLOYD J. JASSIN is a New York-based publishing and entertainment attorney in private practice. He is co-author of the bestselling Copyright Permission & Libel Handbook (John Wiley & Sons). Contact: Law Offices of Lloyd J. Jassin, The Paramount Bldg, FL 12, 1501 Broadway, New York, NY 10036, Tel: (212) 354-4442, email: jassin@copylaw.com. Follow him on Tweeter:  https://twitter.com/lloydjassin

STEVEN C. SCHECHTER is a media and entertainment law attorney based in Paramus, NJ, and co-author of The Copyright Permission & Libel Handbook (John Wiley & Sons). Contact: Law Offices of Steven C. Schechter, 36 Farview Ter, Paramus, NJ 07652, Tel: (201) 880-9818, email: schechter@medialawyer.tv


Sunday, September 13, 2015

In the Fight Against Piracy, Are Curses the Answer?

Outside of a Dog #5
Outside of a Dog is an irregular, and sometimes satiric, series that features publishing wisdom from a variety of classic and contemporary sources. As a lawyer, I'm fascinated by the economics and entrapments of publishing contracts and cases. The title is borrowed from Groucho Marx, who famously said, "Outside of a dog, a book is man's best friend. Inside a dog, it's too dark to read." Like the challenge of reading inside a dog, this collection records the fact that authors and publishers trying to strike a balance between literary merit and financial need, labor in the dark without any economic certainty.


Curses! Gory, gruesome, nasty, score settling, cautionary messages drafted by monk scribes to stop book thieves and plagiarists in their tracks. Curses and copyright notices perform a similar function - striking fear into the hearts of word thieves. The practice of using protective curses and symbols in order to ward off evil has been around since ancient times. Whether the copyright symbol, or the Hamsa, the basic premise is deterrence.  While the legal benefits of using a copyright notice are limited, there are several or more non-legal incentives to support the use of curses in the fight against piracy.   The following is an overview of the relative benefits of book curses and copyright notices and their commonalities.  

Curses Versus Copyright Notices

To get the most out of a curse (or a copyright notice), it must be displayed prominently.  With a curse, knowing you've been cursed, makes the curse more potent.  Similarly, the law provides for more potent penalties against “willful” or knowing infringers, than innocent ones. Statutory damages, an alternative to disgorging an infringer's profits, can be as low $200 per infringement if found to be innocent, or as high as $150,000 per infringement if found to be willful.   

In the middle ages, illuminated manuscripts were inscribed by monks with curses to protect them from being stolen or copied.  Like the FBI anti-piracy warning, curses threatened personal misfortune, and were prominently featured. However, instead of the wrath of the federal government, five years in federal prison and a fine of $250,000, curses expressed the wrath of a vengeful god.  Crush, kill and strangle, rather than imprisonment or fines.  

In Biblioclasm
author (and professional medieval illuminator) Marc Drogan, identifies the following as the most famous literary curse. 
"And if any man shall take away from the words of the book of this prophesy, God shall take away his part out of the book of life, and out of the holy city, and from the things which are written in this book."  -- Revelations, 22:19
The Christian church didn't have a monopoly on literary curses.  Medieval Jewish scribes issued stern warnings against modifying even a single letter of the Hebrew bible, since each of the 304,805 letters that comprised it had divine meaning.  The following lines written C 984, appear at the end of the Moshe Ben-Asher Codex, the oldest medieval Hebrew bible:
"Whoever alters a word of this mahzor or this writing or erases one letter or tears off a leaf . . . may he have neither pardon nor forgiveness; neither let him behold the beauty of the Lord.  He shall be like a woman in impurity and like a leprous man, who has to be locked up so that his limbs may be crushed, the pride of his power broken, his flesh consumed away that it cannot be seen, and his bones that were covered made bear."
The warning associated with the Moshe Ben-Asher Codex concerns rights in the text, not ownership of the copy. It can be interpreted as a early form of copyright control.  Under copyright law, the exclusive right to adapt resides with the owner of the text, not the owner of a particular copy of a book.  Personally, I think disgorgement of an infringer's profits (a remedy under copyright law)  better fits the crime than broken bones or necrotizing fasciitis.  But, that’s just me. 

Medieval colophons (the precursor to today's copyright notices) appeared, initially, as concluding statements at the back of manuscripts.  The colophon would indicate the work's title, the copyist (not the author), date and place of copying, and contain either a blessing or a curse.   

Geoffrey Galister, in the Encyclopedia of the Book (Oak Knoll/British Library), explains that by the early 16th Century, the practice of placing a colophon at the end of a book was largely abandoned. Instead of the scribe's name appearing at the back of the book, the printer's name (and its royal license to sell the work) appeared on the title page where it could be more easily seen.

Over time, copyright notices supplanted colophons.  In lieu of curses, secular threats of legal action took over.  With the passage of the Statute of Anne in 1709, the first copyright act, the regulation of unauthorized copying was transferred from god's exclusive jurisdiction to her Majesty's courts.  In 1802 the U.S. Copyright Act was amended to require a notice be placed on each copy of a book or map.  

Like colophons, which list special aspects of the book, such as the paper variety or type style used, copyright notices generally appear on the title page, or reverse of the title page. The copyright symbol, the familiar © followed by the date and name of the owner (not necessarily the author), often comes with a nasty warning, not a curse.   Here's a mildly threatening one: 
ALL RIGHTS RESERVED.  No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without the prior written permission of the publisher. 
Compare the polite "All Rights Reserved" legend found in close proximity to many copyright notices, with your average illuminated manuscript curse.  If you were lent a manuscript and failed to return it, or made an unauthorized copy, you - and perhaps your forebears and children -- were forever cursed.  Copyright notice or book curse?   You decide.  

Before March 1, 1989, if a copyright owner failed to affix a copyright notice to a work, great misfortune befell the  owner of that work.   Specifically, the omission of the notice resulted in the work being cast out of copyright (in the United States).  Of course, a public domain work may still be covered by a protective book curse.  This is another  advantage of curses over copyright notices.  

According to Drogin, the oldest known book curse appears on cuneiform tablets found in the biblical city of Ninevah.  Like today's authors, Babylonian King Assur-bani-pal  (668–626 BC) wasn't just concerned with protecting against theft, but receiving credit for his work.  The French call it “droit moral” – an author’s right to defend the integrity of their work and the use of their name.   King Assur-bani-pal imprinted this form of notice on his royal records: 
Whosoever shall carry off this tablet or shall inscribe his name on it, side by side with mine own, may Ashur and Belit overthrow him in wrath and anger, and may they destroy his name and posterity in the land.
The profound fear of being forgotten loomed as large in Babylonia as in nearby Egypt.  Removing the name of a king from a cuneiform tablet meant he never existed.  Much the same can be said for failing to credit a writer of a screenplay, whose livelihood (and footnote in history) depends on the works which bear their name.  

Whether a curse or an unintrusive copyright notice, these admonitions are powerful starts to the reading experience.  Where does the power come from?  Fear.  
May whoever destroys this title, or by gift or sale or loan or exchange or theft or by any other device knowingly alienates this book from the aforesaid Christ Church, incur in this life the malediction of Jesus Christ and of the most glorious Virgin His Mother, and of Blessed Thomas, Martyr. Should however it please Christ, who is patron of Christ Church, may his soul be saved in the Day of Judgment.

Before Johannes Gutenberg's invention of the printing press in the mid-1400s, books were precious objects worth fighting over.  Coveted by the wealthy elite, stolen in a prior era by marauding Norsemen, literary monks went to great lengths to protect their collections of valuable manuscripts.  Not only did they employ curses, but, they tethered their bibles to bookshelves and lecterns with chains.    

As the fifteenth century became the sixteenth, book curses underwent a change, becoming more secular, foreshadowing the birth of copyright as a device to secure the sale of copies, and protect the livelihood of authors and publishers.  German renaissance artist Albrecht Dürer invoked the wrath of the crown, not god, declaring in 1511:
Hold! You crafty ones, strangers to work, and pilferers of other men’s brains. Think not rashly to lay your thievish hands upon my works. Beware! Know you not that I have a grant from the most glorious Emperor Maximillian, that not one throughout the imperial dominion shall be allowed to print or sell fictitious imitations of these engravings? Listen! And bear in mind that if you do so, through spite or through covetousness, not only will your goods be confiscated, but your bodies also placed in mortal danger.
A copyright notice threatens economic harm, while the strategy behind the black art of the curse is to attack the infringer's mind. Dürer's transitional curse succeeds at both tasks. 

Conclusion

Tensions between copyright law and freedom of speech aside, a serious dilemma exists. How do you prevent a digital book, or other digital work, from being copied without permission? There are no good answers.  However, six-months after downloading a pirated copy of The Copyright Permission and Libel Handbook: The Cursed Edition, Bonnie Foreman of Sheepshead Bay, Brooklyn expired around page 123.  Curse or coincidence?  I cannot say for sure. 


(c) 2015  Lloyd J. Jassin. All Rights Reserved. If you infringe this article, may you be seized by the neck like a bird, your head cranked off, and your carcass hung up to drain*. Go ahead, I dare you. (adapted from a curse on the tomb of the courtier Biw at Sakkara, circa 2260 B.C.)

Disclaimer: This article is not designed to give any specific advice concerning any specific circumstances. Readers are strongly cautioned to consult an attorney before consulting a practitioner of the occult arts.


Law Offices of Lloyd J. Jassin. We offer a broad understanding of the industries in which our clients operate and a network of contacts within the publishing, entertainment and licensing communities. Clients gain access to all of the knowledge, counsel, and advocacy that the firm can provide. View my complete profile.
Contact:   Law Offices of Lloyd J. Jassin, The Paramount Bldg., Floor 12, 1501 Broadway, NYC, 10036, (tel.) 212-354-4442; (Email), or visit: http://www.copylaw.org. Follow us on Twitter: http://twitter.com/LloydJassin

Resources
The Story of St. Columba: A  Modern Copyright Battle in Sixth Century Ireland
Books in Chains by the Late William Blades (1892) (full text version)
Biblioclasm:  The Mythical Origin, Magic Powers & Perishability of the Written Word (Rowman & Littlefield) by Marc Drogan.

Books and their Makers in the Middle Ages  (Putnam) by Geo. A. Putnam
Questionable Utility of Copyright Notice: Statutory and Nonlegal Incentives in the Post-Berne Era by TP Arden - Loy. U. Chi. LJ, 1992



Tuesday, August 11, 2015

Why Co-Authors Need a Collaboration Agreement


"I can never understand how two men can write a book together; to me that's like three people getting together to have a baby."
                            --Evelyn Waugh

Nearly everyone has heard the oft-repeated statistic that 50% of all marriages end in divorce. But what about creative partnerships?  The odds are no better.  Pity the poor expert, celebrity, author, playwright or screenwriter who enters into a creative partnership without thinking about the financial, emotional and practical challenges ahead of them.  If the relationship falters, a well-drafted collaboration agreement (written during the romance stage of the relationship) can be consulted.   If the relationship fails, that agreement will help make it a clean break up. 

Double the Trouble or Half the Work?

Like marriage, the key reasons most authors cite for failed collaborations are lack of commitment, lack of communication, unrealistic expectations, and of lack of respect. While trust is an important element of any relationship, without a written agreement you are ill-equipped to deal with these and other conflicts.  Contracts define rights and remedies, and thus help avoid misunderstandings.  Put another way, good contracts make good neighbors.
Tip:  If avoiding conflict is not sufficient reason for having a written collaboration agreement, take note that many publishers contractually require – as a condition of working with the author team – that joint authors have a formal written agreement between them.
The Law Presumes 50/50 Ownership

The formation (and dissolution) of a creative partnership is governed by federal copyright law and state contract law. When authors blend their independently copyrightable contributions and talents with the intent to create a unitary work, each collaborator is presumed to co-own the copyright, and share equally in the money the copyright generates - whether profits or royalties. Further, under the default rules of the U.S. Copyright Act – which can be altered by a written agreement -- each collaborator can license the nonexclusive rights to the work to a third party, provided they fairly account for the profits to the other. 
Important! In the absence of an agreement, the way copyright law deals with authorship is black and white.  If there are two authors - and there is no written agreement - each author receives 50% of the profits.  Judges do not apportion a larger or smaller share  based on the collaborators' contributions, experience, reputation or seniority.  
Decision making problems between collaborators commonly arise when there are multiple offers for the work or requests for exclusive rights and no agreement exists between the collaborators. If your collaboration is not working, and your agreement doesn't delegate the right to make business decisions to one of the partners, a recalcitrant collaborator can prevent the other collaborator from licensing or selling film or other rights in the work.  For this reason, you might consider changing the default rules of equal control and ownership, if the book is memoir, or an extension of one author's business or brand.  Relinquishing control, however, does not necessarily mean a smaller financial interest or lack of transparency.   Of course, how collaborators split proceeds and make decisions, ultimately, depends on the writing partners’ sophistication, bargaining power and sense of fairness.  

Ghost Written & "As Told To" Books 

If you can't hold it together long enough to see the work published, the impact of a literary breakup can be devastating.  One such disaster scenario is the unilateral termination of "as told to" collaborations, such as the failed collaboration between Fay Vincent, the former commissioner of baseball, and writer David Kaplan.  After 90% of Vincent’s memoir was completed, Vincent withdrew the project from his publisher, and thwarted Kaplan’s efforts to publish the book under Kaplan’s own name. See, Kaplan v. Vincent, 937 F. Supp. 307 (SDNY 1996).  If the parties had a well-written agreement – as opposed to an oral understanding -- likely, costly , time consuming and psychologically draining litigation would have been avoided. 

If you are a writer who has been approached to help write a memoir, your agreement needs to address: (i) access to pertinent documents; (ii) reasonable access to the subject; and (iii) the subject’s good faith effort to secure the writer’s access to interviews with other individuals as may be needed to prepare the proposal or complete the book. From the subject's perspective, confidentiality is a key issue.  

If you are assisting with a memoir, are you delivering a “warts and all” portrait? Alternatively, is your role to put the best face on your subject’s life story, without resorting to blatant deception? A property drafted collaboration agreement will address these issues.  The greater you detail what is to be delivered, the less arbitrary the acceptance standards will be.  Since progress payments are the norm, if the subject is unhappy, you may not see anything beyond your initial payment or advance.  

A professional writer working on an “as told to” book may want to ask for a kill fee if the subject has the unilateral right to terminate the project.  It's funny how increasing someones financial commitment to a project, will increase their personal commitment as well.   If the subject gets cold feet and pulls out (assuming both writer and subject are parties to the Publishing Agreement), stipulating in the collaboration agreement that the writer does not have to repay her portion of the advance will also help take some of the sting out of a failed collaboration. In other types of creative divorces, it may be possible to separate out each author's contribution, and transfer those rights to the original contributor. These strategies overlap, and are not at the exclusion of each other.

Negotiating Collaboration Agreements 

Writing your own rules can give one of the parties more or less control or compensation than contemplated by the Copyright Act.  Doing so, is not in and of itself, unethical. Key drafting issues include (i) money (how much and when paid), (ii) decision making authority, (iii) copyright ownership, (iv) writing credits, (v) dissolution and withdrawal, and (vi) how to handle disputes.  

Since collaboration and ghost writer agreements do not involve an equal division of work, there must be mutual respect and objectives. If you are not familiar with the intricacies of the publishing industry, or wish to insulate your creative or personal relationship from the business aspects of your literary partnership, look to your literary agent (if a disinterested party) for advice, or, preferably, engage a lawyer with an unbiased understanding of the publishing industry.  Make certain that attorney understands your goals. Is it more important to have a book that establishes you as an expert, than an additional 10% share of the royalties? Is equal credit more important than equal compensation?  Lawyers are often surprised to find out what their client’s real goals are. 

Below are the major sections found in a typical ghost writer or collaboration agreement. If you are using an off-the-shelf or generic collaboration agreement, or one provided by a helpful literary agent, consider having it reviewed by a publishing attorney to ensure what you intend, and what it says, lines up. 

Responsibilities. Be specific.  What must be delivered?  What is the date it must delivered by?  When you engage a writer to help you write a nonfiction book, the writer will prepare a book proposal before completing the manuscript.  A book proposal is a detailed overview of the book’s concept, and contains the author’s credentials and information about how the book can be marketed. The proposal is the bait used to solicit interest from publishers. The proposal is usually written with the understanding that substantive work on the actual manuscript will not begin until there is an offer from a publisher. This scenario is common with “as told to” books. 

In some circumstances, where one collaborator is far more knowledgeable in publishing matters, it may be appropriate to grant that person the exclusive right to negotiate with agents and publishers. If you are not the one shopping the proposal, you will either reserve the right of final approval of the publishing contract, or predicate approval on receiving some minimally acceptable payment.  

Compensation.  If one of the collaborators has greater immediate financial needs -- whether money is needed to pay his rent or to travel abroad to research the book -- the other party can defer all or part their compensation from the initial advance.  It is customary for larger publishers to advance a sum of future royalties to the authors when they sign a publishing agreement.  It's like a pay day loan.  Once that money that has been recouped or refunded from future proceeds,  the author who deferred can star getting paid, perhaps on more favorable terms than if he had not deferred payment.  Deferring payment is also a way for the subject of a book to obtain the services of a more experienced writer.  You can "sweeten" the deal, by offering the writer more money tomorrow in the form of a deferred bonus - assuming they are willing to bet on the success of the work.    

Delivery dates in publishing are tied to publisher advances.   A missed deadline can result in cancellation of a book contract. That, in turn, can trigger an authors obligation to repay their advance.  Any agreement between collaborators should deal with the return of the portion of the advance paid to each collaborator.   

Keep in mind, even those who do not qualify as joint authors for copyright purposes (for example, individuals who made an important – but not copyrightable -- contribution to the manuscript) may still share in the profits and control of a work through an appropriate contractual arrangement. 

Credit. By some estimates, up to seventy percent of nonfiction books are ghost written. For example, it is widely believed that Theodore Sorenson wrote John F. Kennedy's Pulitzer Prize-winning book, "Profiles in Courage,” for which JFK took both the prize and sole author credit for. Clearly, a talented writer, who knows the ins and outs of publishing, can be a great asset in helping an expert (but not expert writer) go from idea, to book proposal to finished manuscript to published author.  The size and prominence of names, as well as order of names on the cover and title page, needs to be negotiated and agreed to in writing. If there is greater brand equity (or name recognition) in one collaborator’s name, it may make sense for that person's name to appear first. Where the issue is not clear-cut, alphabetical order is another sound approach. 

Writing credits take various forms.  The most common writing credits are: "by Subject and Writer" or "Subject with Writer" or "as told to Writer." By definition, if the book is ghost written, sole authorship credit for the work will be in the subject’s name only. In that case, the writer-for-hire must make peace with the fact the subject will receive sole authorship credit. Some might argue that ghost writers should receive higher fees, because their names don’t appear on the finished book.  If the hiring party or publisher hires someone to work on the book, does that person become a co-author?  You may want to provide for that scenario when you draft your agreement.    

Copyright.  A work for hire is a work specially commissioned, or one created by a regular employee in the course of their employment. Whether your collaborator is a joint owner, or merely a writer-for-hire with no ownership interest in the book must be addressed contractually before work on the manuscript begins.  If you want to own the copyright yourself, your contract must specify that the work is a  work for hire.  If the work qualifies as a work for hire, 
Tip:  If you are the hiring party, it is especially important to clarify the nature of the writing services before you hire the person you wish to perform those services.  Later may be too late if your objective is to own all of the rights.  After-the-fact attempts to classify a work as "for hire" often fail.  
Death & Disability.  In the event of the death or disability of one of the collaborators, the agreement should set down rules for hiring a new writing partner to complete the book. The agreement might specify that the authority to enter into contracts, and make creative decisions, vests solely in the remaining or surviving author (subject to a duty to account).  If a work is likely to be revised, the agreement should include a clause that allows the remaining author to revise the work and reduce the compensation paid to the collaborator's heirs or representatives if it becomes necessary to hire an outside writer.  The agreement should also specify whether the person hired to complete the work is entitled to receive credit as an author.  When a collaborator dies, state law, or  the Copyright Act, will determine who steps into that deceased author's shoes. If an older work, the order of succession may be determined by the Copyright Act - not the deceased author's will.  For an article on the order of succession under the Copyright Act (which may trump the author's wishes as expressed in her will), read my article on copyright termination and estate planning at:  http://www.copylaw.org/2011/08/copyright-termination-is-author-right.html

Control of Business & Editorial Matters. Control of business (e.g., who is responsible for seeking out and approving book deals?) and editorial matters (e.g., who has the authority to approve the final draft of the work or authorize revisions?) critical or key issues. In cases where there are more than two authors, unanimity may be required for certain decisions (e.g., approval of the initial publishing contract). Other decisions may require a simple majority vote. Additionally, the parties may give approval rights over certain decisions (e.g., selection of a literary agent or publishing attorney) to one author, provided that person has superior knowledge and experience in such matters. Action Item! If one party retains approval rights over the manuscript, the other party should try to impose reasonable limitations, such as a chance to correct the manuscript within (e.g., 30) days after receipt of the other party’s comments. One way to avoid disputes over what constitutes a satisfactory manuscript is to reference the approved book proposal. A typical provision may look like this:
Provided Subject has made herself available to Writer as set forth in Paragraph X, Writer shall deliver a complete Proposal, satisfactory to Subject in content and form, on or before __________. Subject shall have the right to approve the Proposal. Subject shall further have the right to promptly review and comment on draft sections of the manuscript from time to time to ensure that the Work substantially conforms to the approved Proposal, and for purposes of ensuring the accuracy of those facts contained therein. Subject shall have the right to approve the final text of the Work prior to the delivery date specified in the Publishing Agreement.
Requiring the subject to provide written reasons for any dissatisfaction of the manuscript establishes objective criteria by which the writer’s contribution will be judged. 

Representations & Warranties. Special attention should be paid to the warranties and indemnity clauses of your agreement.  Warranties are promises that the work does not infringe on anyone's copyright, defame anyone, violate anyone's right of privacy, or otherwise cause harm to anyone.  An indemnity is a promise to reimburse the other party if any of your warranties are false.  Warranties should be reciprocal. If any liability arises because of a breach of either parties’ representations or warranties, the non-breaching party should be reimbursed for costs and expenses (including reasonable attorney's fees), and damages paid to others.   If you are a "for hire" writer, meaning, the copyright vests in the party that hired you, the agreement should require the hiring party to make best efforts to have the publisher name you as an "additional insured" on the publisher's media liability policy.  Even if you are added, because the deductible portion of the publisher's media perils policy can be very high, you may want to investigate supplemental deductible insurance.  If you are relying on material provided you by the person who hired you, you should exclude this material from your representations and warranties.    
TIP.  Since verifiable truth is a complete defense to libel (at least in the United States), your collaboration agreement should also require that both parties retain copies of all recorded interviews, transcripts, books, notes, letters and other research materials used in preparation of the book. If there is a lawsuit, you will need to prove the truth of the statements that appear in your book (see §9.12.1, The Copyright Permission and Libel Handbook (John Wiley & Sons).
Miscellaneous.  The agreement should also address who bears the cost and responsibility of obtaining permissions to use other people's copyrighted material; the right to create prequels and sequels; multiple agents; ownership of any trademark or service mark rights that arise as a result of publication; the return of the advance if the book is sold to a publisher, but, ultimately rejected for non-delivery or delivery of an unsatisfactory manuscript; in the event of dissolution, separation of rights in the material contributed by each author; and dispute resolution.   If the intention is to self-publish, keep in mind that you are bound by the same rules that apply to bestselling authors and large scale commercial publishing ventures.

Conclusion

Is it double the trouble or half the work?  You decide.  However, a collaboration agreement provides a chance for you – preferably, under the guidance of a qualified attorney – to fashion your own private body of law to govern your creative relationship. Ideally, the time to address the major issues confronting contributors and collaborators is before the actual creative process begins. Although collaborators might not feel comfortable discussing long-term financial and other issues, it is always easier and less expensive to deal with these matters up front, rather than after a dispute arises. 

© 2013 - 2016.  Lloyd J. Jassin  



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


About the Law Offices of Lloyd J. Jassin.  At the Law Offices of Lloyd J. Jassin we provide more than legal advice. We offer a broad understanding of the industries in which our clients operate and a network of contacts within the publishing, entertainment and licensing communities. Clients gain access to all of the knowledge, counsel, and advocacy that the firm can provide. View my complete profile

Contact: Law Offices of Lloyd J. Jassin, The Paramount Bldg., Floor 12, 1501 Broadway, NYC, 10036, (tel.) 212-354-4442; (Email), or visit: http://www.copylaw.org. Follow us on Twitter: http://twitter.com/LloydJassin