Tuesday, October 8, 2019

I'm quoted in Fortune: Twitter Took a Trump Tweet Down, but Should It Have? And is Nickelback to Blame?

 

In Jeff John Roberts' column in Fortune I talk about Fair Use, and the expanding scope of transformative use in the context of political discussion.    


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Friday, November 23, 2018

BOOK DEALS: THE WEEK OF APRIL 27, 1667

Milton'

MILTON’S PARADISE ROYALTIES LOST

Victor Bohnam Carter's Authors by Professiontells the sad story of John Milton, blind, deprived of his pension and suffering from financial hardships, signing 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.” Under the agreement, Milton transferred "All that Booke, Copy, or Manuscript" to his publisher with "the full benefit, profit, and advantage thereof, or w[hic]h shall or may arise thereby." Milton died  in 1674.  During his lifetime he received a total of £10 from his publisher Samuel Symons.  Milton’s widow later sold the copyright to Symons for £8. 

*In today's currency, £5 is approximately £570.00


Milton publishing contract
Contract for John Milton's "Paradise Lost"


Sunday, August 19, 2018

Publishing Contracts: Where Lies the Danger for Independent Publishers?

When the owner of an independently operated publishing company wishes to sell their company, they will need to establish the value of the business they have built. The sale price will be based on the discounted cash flow of the company, and, ultimately, the soundness of its author agreements. Many start-ups are poorly financed, and in the beginning the owners have neither the time nor foresight to focus on their most important asset, their author contract template. This error at the outset of a publisher's career can frustrate their ability to sell the company in later years.

Pre-Exit Planning for Independent Publishers

Problems often arise when publishers borrow an agreement found online.  Lacking  legal acumen, a start-up publisher may delete important provisions that they do not fully understand - or inadvertently carry forward a "poison pill."  For example, an anti-assignment clause.   Generally, a contract is fully assignable unless it contains such a clause. 


Sample Anti-Assignment Clause
Sinclair Lewis' "Kingsblood Royal"
Experience is a hard school.   To illustrate:  Owen, a successful independent publisher, with a backlist of 65 books, decides to sell the assets of his company.  In his late-50s, with no children to take over the business, his exit strategy is to bankroll the sale of his growing company into an early retirement.  As part of the seller's due diligence process he compiles all of the company’s author agreements, foreign translation licenses, financials and other important documents for a prospective buyer to review. To his dismay, his attorney and broker call to say the deal has gone south because the publishing agreement he filched off the Internet when money was tight, contains a non-assignment clause.  The clause reads, “Neither this agreement nor any right or obligation hereunder may be assigned or delegated, in whole or part, by either party without the prior express written consent of the other. 

What should have been a straight forward business transaction, now requires the consent of all of Owen's authors, and in one instance, all of a deceased author's uncompromising heirs. Plus, the author of the crown jewel of Owen's backlist (which generates 50% of the company's gross annual revenue) will use the pending sale to renegotiate her contract -- a contract she desperately wants to get out of.  Is there a way around the discretionary power Owen inadvertently invested in his authors?  Perhaps.  

There are two ways to buy a company.  Stock sales and asset sales.  In certain states the acquisition of stock in the target company will not violate an anti-assignment clause.  However, buyers prefer assets sales.   

If an agent, or author, wishes to insert an anti-assignment clause in your agreement, resist.  Or, consider carving out exceptions for the sale of substantially all of your company's assets, or the sale of the company to a related company.  
TIP:  If you change a boilerplate contract clause for a particular transaction, be careful not to use the revised contract as a template for future deals, unless that is your express intention.
While there are publishing programs at many universities, and organizations such as the IBPA to educate future publishers, at best you will receive an introduction to contracts.  When starting out, don't hesitate to hire a lawyer familiar with the industry.  There are a fair number of attorneys across the country who are intimately familiar with the book publishing industry.  You can't afford not to call one of them.   

If you want to succeed as a publisher you must have a well drafted author-publisher agreement.  Then, through persistence and luck, you are in a position to make the most of the opportunities ahead. 

Lloyd J. Jassin is a publishing attorney and entertainment lawyer.  He counsels clients on contract, licensing, copyright, trademark, unfair competition, defamation, right of privacy and general corporate law matters. His practice includes drafting and negotiating publishing and entertainment industry contracts, intellectual property due diligence, trademark prosecution, dispute resolution and litigation. A graduate of Benjamin N. Cardozo Law School, he is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  He can be reached at 212-354-4442 or via email at Jassin@copylaw.com.


Related Blog Post

A Helpful Checklist for Book Contract Negotiations

Contact:

Law Offices of Lloyd J. Jassin
The Paramount Building
1501 Broadway, Floor 12
New York, NY 10036
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(c) 2018.  Law Offices of Lloyd J. Jassin. 


Monday, May 28, 2018

Estate Planning and Copyrights

 By Lloyd J. Jassin & Ronald M. Finkelstein



The focus of this article is on lifetime planning to ensure the
beneficiaries of your estate are protected, and are in a position to take control of your copyrights and legacy.

The control and licensing of copyrights is an awesome responsibility. Long term planning is needed because copyrights are long term propositions. For works published before 1978, copyrights last  for 95 years from the date of first publication. For works created after 1977, copyright lasts for the life of the author plus another 70 years. 

Who will deal with the myriad of issues that arise during the life of a copyright?  Read on.

Who Will Oversee Your Literary Legacy?

While during your life you may be able to play catch-up with legal formalities, unless you have a well-drafted will, or have created a valid trust (or both) for the benefit of others, you have left the ownership and care of your creative or literary legacy largely to chance.

John Keat's 1820 Will
Ideally, authors should name a "Literary Executor" in their will.  An "executor" is a person responsible for settling a deceased person's estate. Among the duties of a General Executor (as opposed to Literary Executor) are contacting an attorney to file a petition for probate of the will; collecting debts owed to the estate; filing for life insurance and other benefits; contacting an accountant (or attorney) to prepare the decedent's final income tax returns, a federal estate tax return and state estate and inheritance tax returns as may be required; and notifying the beneficiaries named in the will. 

A Literary Executor, as opposed to a General Executor, is the


person selected for the limited purpose of managing your published and unpublished after you pass on. The person responsible for keeping your works and reputation alive can be a family member, a trusted business associate, collaborator, agent or attorney; or some combination thereof.  
One court described the Literary Executor's role as "requir[ing] a delicate balance between economic enhancement and cultural nurture." If you have made the appropriate provisions in your will, your Literary Executor will distribute all of the literary property that you owned at the time of your death, and manage your literary estate on an ongoing basis.  

The Literary Executor, acting on behalf of the beneficiaries under your will (e.g. family members, a designated charity, a research library or archive), will be responsible for entering into contracts for exploitation of your copyrights and other intellectual property rights; controlling access to unpublished works; collecting royalties; maintaining your copyrights and legacy; and, if called for, donating your letters, unpublished manuscripts, and other literary materials to a library, special collection or historical society. 
Unlike a general executor who gets the deceased's estate ready to distribute, the literary executor's job is not for a limited time.  It is coextensive with the life of the copyright.
Because of the enduring, and changeable, nature of copyrights (e.g. revised editions, film adaptations, new technologies), the duties of a Literary Executor, or Literary Trustee, projects decades into the future and are ongoing. 

Be forewarned.  Copyrights are complicated. For example, a literary executor is trusted to advise an author's heirs on the process of copyright termination.  The Copyright Act gives an  author's heirs the inalienable right to terminate certain agreements made during an author's lifetime - even if those agreements were in perpetuity.  The mechanics of the termination process are astonishingly complex. Notices must be served within a prescribed period.  If the author's heirs miss the window, or file an improperly drafted notice, the grant or transfer made during the author's lifetime continues in full force for the life of the copyright.    

Selecting a Literary Executor

A General Executor will often be a spouse or other family member who is entrusted with the moral and financial responsibility of protecting copyrights, entering into contracts, and guarding reputations. Because of the specialized nature of these responsibilities, you should consider entrusting the care of your papers, existing contracts and unpublished works to a Literary Executor, who may, or not be, a family member. 

By taking the time to carefully select a Literary Executor, you lessen the likelihood of bitter infra-family disputes over control of your work or works. Family squabbles over copyright control can easily frustrate the ability of scholars, publishers and producers who want to quote, publish or produce your work.  And, if your final wish is that your unfinished manuscripts go unpublished, you can provide in your will that your Literary Executor destroy your unpublished works after your death. By way of example, Ernest Hemingway (1898 - 1961) made it clear during his lifetime that he did not want his unfinished and unpublished story fragments and manuscripts published after his death. However, since his will was silent on the subject, his estate edited and released not just his early stories, but  three unfinished novels (one of which was a posthumous collaboration with his son, Patrick). All three were reviewed poorly.

Ideally, your Literary Executor should be someone who understands how the publishing industry works. That person should also be comfortable with negotiating contracts, and  savvy enough to hire an attorney with appropriate expertise. A Literary Executor should also be someone who will carry out your intentions - even at the expense to your beneficiaries of foregoing untapped royalties. And, since all things come to an end -- including Literary Executors -- you should provide in your will for a replacement when the estate's Literary Executor dies or becomes incapacitated.

Defining the Literary Executor's Duties


Because the duties and powers of a Literary Executor are not defined by statute, it is imperative that the person drafting your will take great care in describing the scope of your Literary Executor's duties. The powers of a Literary Executor should be as broad and comprehensive as possible, unless, of course, you believe there should be limitations, qualifications or conditions imposed upon your Literary Executor (e.g., different executors appointed for book publishing and theater-related matters).

In preparing the powers of a Literary Executor, you must consider the following questions: 

  • Will the Literary Executor have the sole and exclusive right to make all decisions regarding appropriate publication, republication, sale, license or other exploitation of your work? Or, should she merely be appointed as an advisor to the General Executor?
  • Will the Literary Executor be responsible for preparing unfinished or unpublished manuscripts for publication and seeing those works through publication? 
  • Will the Literary Executor have the right to terminate copyright licenses?
  • Will they have the power to destroy any letters or papers they believe should be destroyed? 
  • In return for their services, will the Literary Executor receive a fee or commission for their services? What is fair compensation? What about reimbursement for expenses? 
  • Will the Literary Executor be required to maintain a separate bank account for such monies? 
  • Will the Literary Executor have the sole right to sue for infringement of copyrights? 
  • Will the Literary Executor have the authority to pay accountants attorneys, agents, subagents and others? 
  • In the event the Literary Executor is unwilling or unable to perform her duties, what are the provisions for appointing her successor? Or, will the General Executor assume those duties?
While a family member may agree to work for free, attorneys and literary agents will most likely seek a fee of between 10% and 15% for new contracts they negotiate on behalf of the estate. With regard to administering existing contracts, fee arrangements can vary greatly depending upon the size of the literary estate and the responsibilities of the Literary Executor.

The Literary Trustee 

In some instances, an author may create a lifetime (“inter-vivos”) trust and transfer literary assets to the trust. In this case, a trustee will be appointed to carry out responsibilities similar to an Executor. In such instances, the author appoints a "Literary Trustee" who acts in much the same manner as a "Literary Executor" would under a decedent's will. Furthermore, if an author names trusts as beneficiaries under his will and literary assets will be transferred to such trusts, then the author must also name, in addition to a Literary Executor, a Literary Trustee (who would be the same person) in order to continue acting in such a capacity after the literary assets have been transferred to the trusts.

Valuation


If you have accumulated enough wealth so that your assets will be subject to an estate tax upon your death, then the Executor will be responsible for valuing all of your assets at that time, including manuscripts, copyrights and contractual rights derived from the publication and reproduction of your works. The Executor (or Literary Executor, as the case may be) should hire an appraiser with significant experience in appraising -- or valuing -- these interests. Authors with significant estates should meet with their attorney or accountant now to determine whether any lifetime planning can be employed to reduce the value of their estates at their death so that more assets can pass to their heirs.  

(c) 2002 -2019 Lloyd J. Jassin and Ronald M. Finkelstein


Lloyd J. Jassin, JD is a publishing attorney. He counsels clients on contract, licensing, copyright, trademark, unfair competition, libel, right of privacy and general corporate law matters. His practice includes drafting and negotiating publishing and entertainment industry contracts, intellectual property due diligence, trademark prosecution, dispute resolution and litigation. He is a graduate of Benjamin N. Cardozo Law School, and is co-author of The Copyright Permission and Libel Handbook (John Wiley & Sons).  He can be reached at 212-354-4442 or via email at Jassin@copylaw.com, or you can visit www.copylaw.org 

Ronald M. Finkelstein, JD, CPA, is a Tax Partner at Marcum, a nationally recognized accounting firm, and national Co-Partner-in-Charge of their Trusts and Estates Practice group. He can be reached at 631-414-4370 or by e-mail at ronald.finkelstein@marcumllp.com, or you can visit his firm's website at www.marcumllp.com)

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.



Friday, October 28, 2016

I'm a Copyright Attorney, Not a Sorcerer (Updated 2018)

Several weeks before Bonnie Foreman's death, I watched her laughing and joking as she downloaded a pirated copy of my book, The Copyright Permission and Libel Handbook: The Cursed Edition. She read a lot and drove too fast. I said I'd give her six weeks to live. The autopsy carried out on her body was inconclusive. But, here's what I can tell you. She expired around page 36. Somewhere between out-of-print works and special fair use situations. Curse or coincidence? I cannot say for sure. I'm a copyright attorney, not a sorcerer. What I do know, it wasn't the copyright notice that did her in.

When we are confronted with a book curse, we are forced to reflect on on our mortality. Three thousand years after his death, King Tutankhamen's curse still conjures up fear (unlike an FBI anti-piracy warning or copyright notice). While a three thousand year old curse may retain its potency, copyrights wither and fall into the public domain a mere 70-years after the creator's death. From the standpoint of being an effective deterrent, it doesn't help that copyright notices resemble frown emoticons resting on their  side.   

Dusting Off Book Curses

Do you wish to protect your intellectual property, but don't have the means to hire a lawyer?  Gory, gruesome, nasty, cautionary, score-settling  book curses were once used to stop literary thieves and plagiarists in their tracks. Unlike the copyright notice, which simply proclaims  "I own this" (with reservations), curses make it abundantly clear that some profound form of adversity or misfortune will befall the person who ignores it.

While there are some issues to iron out, I have come to believe that a mix of legislative solutions, works licensed under Creative Commons licenses, and cursing, offer a workable solution to an internet that wants to be free, and authors who want to eat. 

Old sorcerers wrote the following ancient warnings. While dormant for years, these precursors of the modern copyright notice, are a creative and cost-effective way to protect your intellectual property.    

In Biblioclasm, a book about the magic powers of the written word, the author identifies the following as the most famous literary curse.  It still has what it takes.
"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

Aleppo Codex
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, appears 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 Ben-Asher curse focuses on the integrity of the text, not theft. Under copyright law, the exclusive right to alter or adapt the text resides with the author, in this case Yahweh.  Elsewhere in the Codex, atop certain pages, it reads, “Sacred to Yahweh, not to be sold or defiled.”  Personally, I think disgorgement of profits (a remedy under copyright law) better fits this type of crime than broken bones or necrotizing fasciitis.  That said, the Nazi face melting scene from Raiders of the Lost Ark has my vote for the most iconic scary movie scene in cinematic history.  

Curses and Copyright Notices 


Medieval colophons, the antecedent to the copyright notice, appeared, initially, as concluding statements at the end of a book or manuscript. The colophon gave information about the scribe or copyist, date and place of copying and contained either a blessing or a curse.  To thwart piracy, printers' marks appeared at the dawn of Western typography.  So, while a direct connection between the colophon (and printer's mark) and the copyright notice may appear fuzzy, the common assertion of ownership rights, and threat of consequences for those who publish "impudent frauds" cements the connection in my mind.

To get the most out of a curse, or copyright notice, it must be displayed prominently.  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. Makes sense. As a deterrent, copyright law provides more potent penalties against willful or knowing infringers, than innocent ones. 


Similarly, with a curse, knowing you've been cursed, makes the curse more potent. Although, many "sorcerers claim that curses can be just as effective without the victim’s knowledge of them." See, Mystica. Being an "Eye of newt, and toe of frog" kind of guy, I recommend prominent display of both.

By the early 18th Century, secular threats of legal action largely supplanted curses. With the passage of the Statute of Anne in 1709, England's first copyright act, the regulation of unauthorized copying was transferred from god's jurisdiction to her Majesty's courts. In 1802 the U.S. Copyright Act, a direct descendant of the Statute of Anne, was amended to require a notice be placed on each copy of a work.

Like colophons, copyright notices generally appear on the title page, or reverse of the title page, of books.  The copyright symbol, the familiar © followed by the date and name of the owner (not necessarily the author), often comes with a fey 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.
Not too scary. Compare the polite "All Rights Reserved" statement 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 sometimes your forebears and children) were forever cursed. In contrast, a copyright notice is a yellow blinking light at the corner of Purchase and Purloin Streets. Copyright notice or curse?  No contest.

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 might equate it with “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."
King Assur-bani-pal

The profound fear of being forgotten loomed as large in Babylonia then as in Hollywood today. 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 a 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.

In the 16th Century 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:

Dürer's Engraving of  Erasmus

"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 Maximilian, 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, curses offer an intriguing 15th Century solution to a 21st Century dilemma. 


Unlike copyright protection which sloughs off after several generations, a cursed work is forever.  So, when Steamboat
Willie, the very first Mickey Mouse cartoon, passes into the pubic domain on January 1, 2024, perhaps Mickey, whose been known to dabble with spells, will don his glowing blue hat with white stars and a crescent moon again, and conjure an army of battling brooms to keep Steamboat Willie shackled.    

©💀 2016 - 2018 Lloyd J. Jassin. All Rights Reserved. 

Disclaimer: Please note that 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.  Protected by the Eye of Horus. May be reproduced in whole for non-commercial purposes, provided author and website is credited.  If not, may you be seized by the neck like a bird, your head cranked off, and your carcass hung up to drain*.

*Adapted from a curse on the tomb of the courtier Biw at Sakkara, circa 2260 B.C.






Lloyd J. Jassin is a publishing attorney, and head of his own private practice, where he concentrates on legal issues affecting authors, literary agents, publishers, and composers.  He began his career in book publishing, working for companies such as Prentice Hall / Simon & Schuster and St. Martin's Press in publicity and marketing, which may explain his affinity for trademark law.  His the  coauthor of The Copyright Permission and Libel Handbook (John Wiley & Sons). 

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

Resources


The 'Weird Tale' Behind the Malcolm Ferguson Book Plate 
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





Threatening Bookplate via 'Confessions of a
Bookplate Junkie' Blog