What Writers Should Know about Copyright Infringement

The headline in The Washington Post read: "Judge Refuses to Block Release of Spielberg's Amistad. Plagiarism Suit Against Filmmaker to Proceed."

Echoing Dorothy Parker's bon mot that "The only ism Hollywood believes in is plagiarism," bestselling African American novelist, poet, and sculptor, Barbara Chase-Riboud, claimed that Steven Spielberg's film Amistad infringed the copyright to her novel about a real-life mutiny aboard a slave ship off the coast of Cuba in 1839. Specifically, Chase-Riboud alleged that the DreamWorks' script impermissibly copied "themes, dialogue, characters, relationships, plots, scenes and fictional inventions" from her 1989 historical novel, Echo of Lions.

Although Spielberg's production company had flown Chase-Riboud to Los Angeles in 1988 to discuss optioning rights to her novel, and there existed ample evidence of overlap between ideas and characters in the novel and the film, the court recognized that historical facts and basic character types are not protectable. Since the only common elements between the book and movie related to historical facts and broadly drawn characters, the court determined it was unlikely Ms. Chase-Riboud's claim would succeed at trial. Consequently, her motion for summary judgment -- which would have assured a quick resolution of her claim -- was denied.

The Fuzzy Line Between Permissible and Impermissible Copying

Because copyright does not protect ideas and facts, or material traceable to timeless themes, copying alone is not enough to prove copyright infringement. To prove copyright infringement, a copyright owner must prove that the infringer copied protected material. When courts are asked to determine whether infringement has occurred, they must disregard non-copyrightable elements (such as ideas and historical facts) and compare the copyrightable elements in the works. Unfortunately, as this case illustrates, there is no simple test to distinguish unprotected ideas from protected expression.

"Because copyright does not protect ideas, facts, procedures, concepts, principles, or discoveries described or embodied in works, copying alone doesn’t constitute copyright infringement."

Under copyright law, only an author's particular expression of an idea, and not the idea itself, is protectable. Prior lawsuits have held that basic plots, stock settings, and stereotypical characters (e.g., prostitutes with hearts of gold, sympathetic mob bosses, corrupt cops, Nazi zombies) are not protected by copyright. These literary devices -- which are part of every novelist's and screenwriter's toolkit -- belong to a common pool of literary techniques analogous to unprotected ideas.

The Copyright Infringement Test 

In a copyright infringement case the plaintiff is required to prove that the defendant actually copied its work and that the copying was so "substantial" as to constitute an unlawful taking of the plaintiff's work. Unlawful copying exists when there is not only substantial similarity between two works but also substantial similarity between protectable elements.

In the Amistad case, since DreamWorks did not dispute having access to Chase-Riboud's book, the only issue for the court to decide was whether substantial similarity of expression between the two works existed.

Comparison of the Two Works

In finding DreamWorks did not violate Chase-Riboud's copyright, the court looked at the "total concept and feel" of the two works -- the standard test for assessing the substantial similarity of expressive elements between a film and a book. The "total concept and feel" analysis looks at similarities of plot, mood, text, setting, sequence of events, and characterizations from the vantage point of the average lay observer.

Because the plot, setting, and general sequence of events of the two works were -- in the court's opinion -- dictated by the historical record, the court determined that the plaintiff could not sustain her burden of proof on these factors alone. As a general rule, historical works, including historical novels that track real events closely, receive less protection than fictional works or works loosely based on real events. Moreover, the court noted that the mood and pace of Echo of Lions, which contains a poignant love story, was much different from Amistad, whose mood and flow were dictated solely by historical events.

Since Chase-Riboud also relied on certain specific examples of substantial similarity to support her claim, those examples, too, were analyzed by the court. But none of those basic resemblance, or common themes, were enough. Interestingly, neither the court nor Chase-Riboud cited specific instances of dialogue appropriation.

Looking at certain specific claims, Chase-Reboud claimed that a fictional Black abolitionist named Henry Braithwaite overlapped with Amistad's Theodore Joadson. While both fictional characters are depicted as wealthy, erudite  Black abolitionists residing in New Haven, according to the court, they share little else in common. For example, Amistad's Joadson was a runaway slave, whereas Braithwaite came from a land-owning family that arrived in America in the mid-1600s. Unlike Chase-Riboud's character, Joadson had a critical role in the African's defense, including interviewing attorneys and urging John Quincy Adams to represent them at trial.

While noting that well-developed characters -- especially visually depicted ones -- are eligible for copyright protection, the court held that since the idea of a Black abolitionist appearing in both works was predictable, and only superficial similarities existed between Braithwaite and Joadson, no reasonable juror would find the characters substantially similar from a copyright point-of-view.

Similarly, Chase-Riboud claimed that DreamWorks stole certain ideas and plot devices -- not supported by the historical record -- relating to a historical character named Cinque, who was featured in both works. However, the court held that Chase-Riboud's portrait of the slave Cinque, which included a relationship with John Quincy Adams, was not the stuff that infringements are made of. While "both" Cinque's shared certain similarities, the court held that Chase-Riboud's character was not sufficiently distinctive to enjoy copyright protection. Moreover, since both works "expressed" Cinque differently, the court held that there was no substantial similarity. Moving beyond the characterizations, the court found that other specific claims of similarity, including common endings tied to the Civil War, and the destruction of a slave colony with the rendering of the Supreme Court decision freeing the slaves, were sufficiently different as to defeat Chase-Riboud's claims.

Case Settled

Hinting at a financial settlement, The Los Angeles Times reported on February 10, 1998, that Chase-Riboud had released the following statement: “After my lawyers had a chance to review DreamWorks’ files and other documents and evidence, my lawyers and I concluded that neither Steven Spielberg nor DreamWorks did anything improper, and I instructed my lawyers to conclude this matter in a timely and amicable fashion. I think ‘Amistad’ is a splendid piece of work, and I applaud Mr. Spielberg for having the courage to make it.”

Conclusion

What this case shows is that copyright infringement is not about taking an author's generalized themes but her particular expression of those themes. What this means is that an author's exclusive rights are largely confined to the details and method of her presentation. Moreover, copyright in historical research only occurs if there is extensive copying of an author's selection or arrangement of historical facts or how those historical facts are described.

In determining similar cases, courts will continue to evaluate plots, moods, scenes, sequences, events, and characterizations to determine whether the defendant has captured the "total look and feel" of the plaintiff's work. As seen in the Amistad case, courts will also review differences, as well as similarities, between the two works when making infringement decisions.

Even assuming a film is adapted from a novel, a subsequent author may legitimately avoid infringement by making sufficient changes in a work that would otherwise be substantially similar to the plaintiff's original individualized expression. Of course, doing so is risky business since the test for copyright infringement is, at best, a subjective determination. Therefore, when in doubt, obtain an film or television option, or draw from the well of timeless literary themes or your own reserve of creativity.

Idea Misappropriation 

While copyright is very important, a work may be protected under other legal theories. For example, under the law of idea misappropriation -- which varies from state to state -- if you submit a story idea to someone, and the idea is used, provided there was a prior understanding you would be paid for your idea, an enforceable contract may exist. The best way to protect against idea misappropriation is to deal with reputable parties and create a paper trail. Keep a record of who you sent your script to and when. It is also a good idea to send a self-serving confirmation letter after pitch meetings, confirming that you met to discuss the possible development of your project. Since producers may claim that they had a similar project in development, it is important to document the idea before sharing it with others. Therefore, it is a good idea to register your work with the Copyright Office (preferable) or the Writers Guild of America (less preferable) before putting your screenplay into circulation.

###

DISCLAIMER: This article represents copyrighted material and may only be reproduced in whole for personal or classroom use. It may not be edited, altered, or otherwise modified except with the express permission of the author. 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 and Libel Handbook: A Step-by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.) and former director of publicity for a division of Simon & Schuster. Mr. Jassin has written extensively on negotiating contracts in the publishing and entertainment industries and lectures frequently on contract and copyright issues affecting creators. He may reached at Jassin@copylaw.com or at (212) 354-4442. His offices are located at 1501 Broadway, FL 12, New York, NY 10036, and Madison, NJ.

(c) 1999 - 2024. Lloyd J. Jassin. 

This article originally appeared in Creative Screenwriting Magazine.

AI, Copyright Law, and Publisher Trust: Balancing Incentives and Authenticity

In an article I wrote for Publishers Weekly late last year, I wrote that Generative Artificial Intelligence ("GAI") challenges accepted notions of creativity and authorship. 

I also wrote that to understand copyright law, you had to understand the policy behind copyright law. The premise is that without copyright, authors would have no incentive to create new works.  

However, algorithms and artificial intelligence don't require incentives in the same way humans do. Unlike book publishers, who generate royalties for human authors, internet platforms prioritize data-driven and machine-learning engagement for advertising revenue. In doing so, they harness user interactions and behavior to sustain their financial models. As a result, these AI systems can generate vast amounts of content, from good enough to outright toxic, blending fact and fiction without any regard for copyright protections or permissions. This glut of AI-generated media poses complex questions about information quality and attribution as well as the boundaries of creativity and originality.

As the volume of AI-generated media increases, the provenance of information will become more important, creating market incentives and consumer demand for publishers and creators who can demonstrate authenticity and high quality.

While addressing the complexities of regulating AI-generated content remains an open question, the established community of publishers has an important advantage in addressing the comfort level of consumers as provenance plays a central role in fostering trust and reliability in information. Publishers (with a capital “P”), through selectivity in what they acquire, careful editing, collaboration amongst sales and marketing, publicity, and the payment of royalties, offer a baseline of trust in the data they publish. 

Amidst growing uncertainty in consumer trust towards AI, the presence of author brands, publisher imprints, and robust metadata becomes pivotal. These elements act as guiding beacons for consumers, helping them navigate the overwhelming volume of data and identify high-quality works amidst the vast sea of information.

Without trademarks, John Oathout, author of Trademarks, wrote, "consumers would have no basis for selection or rejection, or any assurance that a particular product is the product they are seeking."

Alfred A. Knopf

Alfred A. Knopf (the man, not the imprint) was keenly aware of that proposition when he wrote The Borzoi Credo, a publishing manifesto that appeared in the November 1957 issue of The Atlantic Monthly.  

It read, in part, "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." 

Unlike copyright law, trademark law can be used to stop the unauthorized use of a bestselling author's name, a series title, symbols, and markings that the public associates with a particular publisher or other source. In this respect, trademark law is an effective cudgel against those who pass off their wares as endorsed by or coming from an established creator, publisher, or producer.  

Trademark registration of an author’s name, a series title, or a publisher's imprint also opens doors to Amazon’s Brand Registry, empowering authors and publishers with takedown tools. The Brand Registry is a quick and cost-effective alternative to litigating unfair competition and right of publicity claims. The hitch, it the name or mark must be registered, which requires showing consumers perceive the name to be a badge for literary services.

While the publishing industry understandably has antagonism towards large language models, the industry will no doubt take an active part in shaping the future of AI, whether through legislation, licensing their books to train AI, creating bespoke AI models with their own curated datasets, and trumpeting the Good Housekeeping Seal of Approval value of their author and publisher brands.  

To return to the premise of this post, that GAI is undermining the incentives given to authors by copyright law while fulfilling the purpose of copyright, that tension will work itself out over time, but we need human editors and publishers for transparency, accountability, and quality control purposes. 

Tips for Negotiating a Book Contract

Asking an Attorney to Review a Book Contract

Book Contract Checklist of Deal Terms

Book contracts must be carefully negotiated to tailor the terms to fit each author's unique situation. They must address key issues such as the grant of rights, title approval, audit rights, termination clauses, royalties, and more. Further, how you, or your publishing attorney, define key terms and clauses are critical to minimizing the likelihood of disputes.  

In book publishing, unlike the film industry, the grant of rights is (or should be) narrow. In exchange for an advance against royalties, publishers receive the basic right to print and publish a manuscript in book form for the entire term of copyright.

Today, copyright lasts for seventy years beyond an author's passing. You might wonder, what could possibly go wrong? The answer: quite a lot. Just ask a publishing attorney. Without a properly negotiated book contract, potential pitfalls include: 

• no ability to reclaim your rights if the publisher fails to account
  
• no recourse to reclaim your rights if the publisher fails to publish or goes out of business
• no means to reclaim your rights for low or no sales
• no way to reclaim unexploited audiobook or foreign translation rights 
• no say in approving settlement of legal claims
• overly broad non-compete clauses
• restrictive option clauses that may be confused for a multi-book deal
  
• publisher rights grab of film, TV, theatre, and merch rights

Publishers are generally most open to accommodating requests for contract adjustments during the initial stages of the relationship, often referred to as the "romance" phase. Later is too late. Unless a book publishing contract allows an author to terminate for cause if the relationship goes awry, or rights are granted on a "use it or lose it" basis, the author is caught between bad and worse options - asking a court to rescind the contract (rescission is seldom granted) or waiting 35 years to exercise their right of termination under the Copyright Act. 

A Book Contract Should Not be Entered into Hastily

The primary purpose of a book contract is to detail the rights, delivery and acceptance conditions, payment terms, and remedies for breach of contract. For example, rather than relying on a lawsuit to get back rights, if a publisher fails to publish within a contractually agreed time limit, there should be a mechanism that permits an author to regain their rights. Similarly, if a publisher fails to exploit specific subsidiary rights (e.g., audiobook or foreign translation) within a reasonable time, it should trigger a reversion of those rights. In addition to reclaiming or recapturing rights, an author should reserve, or hold for their own use, film, television, live stage, podcast, and merchandise licensing rights. If a book publisher claims these rights, they deviate from industry norms. 

What to Expect When Expecting a Book Contract

Preceding the actual book contract is the term sheet. The term sheet contains the main deal terms. To decode a term sheet some authors turn to literary agents, who will receive a 15% commission on everything from books to audiobooks to film deals. Others retain flat or hourly fee book contract attorneys to help them negotiate royalty rates, the grant of rights, and, later, decipher the legal provisions found in the actual publishing contract.  

Initially, a publishing attorney will review the deal terms and make recommendations to their client. The initial task is to determine if the deal terms measure up to industry standards. We do this by comparing the terms to similar terms offered by similarly situated publishers for comparable books. After both parties agree to the deal terms, the publisher will prepare a contract incorporating those terms, plus the publisher's stock provisions. Like agents, attorneys are buffers that save you from dealing with the minutia of contract negotiation. They will help the client think through the offer and its possible ramifications and advise them on what is negotiable and what is not. An author's attorney can argue for the exclusion of certain items or rights from the proposed contract and the inclusion of others, such as naming the author as an additional insured on the publisher's media perils policy. 

It should come as no surprise that publishing contracts are chock full of double dips and legal loopholes, and when it comes to royalties, a hall of mirrors where what it says and what it means are often two different things. The big five New York publishers offer royalties based on the suggested retail price. Royalties for trade paperback books range from 7 - 7.5% of the list price on average. Typically, established publishers offer 10% of the list price for the first 5,000 hardcover copies sold, 12.5% on the next 5,000 sold, and 15% thereafter. Many smaller publishers base their royalty on the "net amount received," which may be 40% to 50% less than the retail price.  The standard eBook royalty rate offered by established publishers, and many independents, is 25% of the net.

Is Your Book Contract Signable?

When presented with the contract, you will want to modify specific terms.  In the case of a subject matter expert, business owner, or series author, you want title approval. Yet most stock contracts state the publisher decides the book's title.  Contract clauses are malleable, not words set in stone. A good publishing attorney - or agent- knows the contract managers at the major publishing houses. Logical arguments supporting rational positions and knowledge of industry practice are the underpinnings of most book contract negotiations.

Whether one of the big five New York publishing houses or one outside of the insular world of New York publishing, a well-drafted publishing contract can anticipate potential issues, reduce disputes, improve financial return, and save thousands of dollars in legal fees later on. 

Benefits of Reviewing a Signed Agreement with a Publishing Lawyer

For those who have already signed a publishing agreement, a publishing attorney or literary lawyer can help you understand the deal's limitations and determine if those limitations are enforceable. For example, a publishing attorney can advise whether a next book option is enforceable or simply an unenforceable agreement to agree. For example, a common concern is whether a non-compete clause can prevent an author from writing a new book on a related topic. Similarly, a publishing attorney can advise on termination for cause options or termination as a matter of right under the Copyright Act.  

Tip. If chomping at the bit to sign a contract but cannot afford to hire a lawyer, visit Victoria Strauss' Writer Beware blog - a beacon of light in the "shadow-world of literary scams, schemes, and pitfalls." Writer Beware doesn't offer legal advice, but it does a stellar job exposing and raising awareness of questionable business practices in the world of books and authors.     

Book Publishing Contract Checklist

Below are matters to consider when you draft or negotiate your next publishing agreement. Each key point deserves greater attention than given here (and will be the subject of future blog posts). While not all clauses are equally important (or negotiable), a well-drafted contract will cover all or most of the points outlined below.

I.   General Provisions
      1. Name/address of parties
      2. Description of work (synopsis)
          -Tentative title, # of words, illos, intended audience, fiction, non-fiction, etc.

II.  Grant of Rights and Territory
      1. Is it an assignment of "all rights" or a license agreement?
      2. Duration (term of years or life of the copyright?)
      3. Geographic scope
           a)     The world?
           b)     Limited (e.g., the U.S., its possessions, and Canada)
      4. Exclusive rights granted
           a)     Primary rights
                  -Hardcover
                  -Trade paperback
                  -Mass market
           b)     Secondary (subsidiary rights)
                   -First serial (pre-pub excerpts)
                   -Second serial (post-pub excepts)
                  -Reprint rights
                  -Dramatic rights
                  -Film/TV rights
                  -Audiobooks    

                  -Foreign translation

                  -British Commonwealth rights

II.   Manuscript Delivery
      1. Delivery requirements
          a) When due? Is the date realistic? Time is of the essence?
          b) What format? 
          c) What to deliver?
                -Rights cleared photos, illos, charts?  Illos? Charts? 
                -Permission & Release

      2. Manuscript Acceptance

          a) Satisfactory in "form and content" or at "sole discretion" of                      the publisher? 
          b) Termination for unsatisfactory manuscript
          c) Termination for changed market conditions
          d) How is the notice of acceptance or dissatisfaction given
          e) Good faith duty to edit
          f) Return of the author's advance
                 -First proceeds clause
                 -False first proceeds clause

III. Copyright Ownership
      1. In whose name will the work be registered?
      2. Who will register the work with the Copyright Office? 
      3. Is there a signed collaboration or ghostwriter agreement? 
      4. The scope of permissions should parallel rights granted publisher
      5. Reserved rights (i.e., rights retained by the author)

IV. Author’s Representations & Warranties
      1. Author sole creator
      2. Not previously published; not in the public domain
      3. Does not infringe any copyrights
      4. Does not invade the right of privacy or publicity
      5. Not libelous or obscene
      6. No errors or omissions in any recipe, formula, or instructions
      7. Limited only to material delivered by the Author

V. Indemnity & Insurance Provisions
      1. Author indemnifies the publisher
      2. Does indemnity apply to claims and breaches?
      3. Can the publisher withhold legal expenses? If so, for how long?   
      4. Has the author been added as an additional insured to media perils policy?
      5. Does the author have approval over the settlement of claims?  

VI. Publication
      1. Duty to Publish within [insert number] months
          a) Force majeure (acts of god)
                 - Any cap on delays?
      2. Advertising and promotion
      3. Right to use author's approved name and likeness
      4. Advance Readers Copies - MUST be sent 3-4 months before pub date
      5. Style or manner of publication
          a) Book Title - Right of consultation or approval?
          b) Book jacket - Right of consultation? Approval?
          c) Changes in manuscript
      6. Initial publication by a specific imprint in a particular format? 

V. Money Issues
      1. Advance against future royalties
      2. When payable? (in halves, thirds, etc.)
      3. Royalties and subsidiary rights:
          a) Primary rights
                 -Hardcover royalties
                 -Trade paperback royalties
                 -Mass market royalties
                 -Ebook royalties
                 -Royalty escalation(s)
                 -Bestseller bonus
                 -Royalty reductions
                  1) deep discount and special sales
                  2) mail order sales
                  3) premium sales
                  4) small printing
                  5) slow moving inventory

          b) Secondary (subsidiary) rights royalty splits
                 -Book club (sales from publisher’s inventory v. licensing rights)
                 -Serialization (first serial, second serial)
                 -Anthologies, selection rights
                 -Large print editions
                 -Hardcover
                 -Trade paperback
                 -Mass market
                 -Foreign translation
                 -British Commonwealth
                 -Future technology rights
.                -Database rights 
                 -Audio rights
                 -Motion picture/TV
                 -Merchandising

      4. Reasonable reserve for returns
          a) What percentage will be withheld?
          b) When liquidated?

      5. What is royalty based on? (retail price? wholesale price? net price?)
          a) At average discount of 50%, 20% of net is same as 10% of list
          b) At average discount of 40%, 16-2/3% of net is same as 10% of list
          c) At average discount of 20%, 12-1/2% of net is the same as 10% of list
      6. Recoupment of advances

VI. Accounting Statements
      1. Annual, semiannual, or quarterly statements
      2. Payment dates
      3. Can the publisher recoup an outstanding advance from the next book?
      4. Does the contract afford author audit rights? 
      5. Limit on time to object to statements
      6. Limit on time to bring legal action
      7. Can you hire a forensic accountant to review books on a contingency basis?
      8. Pass through clause for subsidiary rights income
      9. If the publisher fails to account, can you terminate the contract? 

VII. Revised Editions
      1. Frequency
      2. By whom?
      3. Can they reduce your royalty if you don't participate in a revision? 
      4. Sale of a revised edition treated as the sale of a new book?
      5. Reviser credit (May the original author remove their name?)

VIII. Option
      1. Definition of next work
      2. When does the option period start?
      3. Definiteness of terms (i.e., is the option legally enforceable?)
      4. What type of option? (e.g., first look, matching, topping?)

IX. Competing Works & Morality Clauses
      1. How is competing work defined?
      2. How long does the non-compete run?
      3. Are there adequate exclusions from what constitutes a competing work?

X. Out-of-Print
      1. How defined?
      2. Notice requirements
      3. Author's right to purchase plates, film, inventory

XI. Termination
      1. What triggers the reversion of rights?
          a) Failure to publish within 12 (or 18) months of manuscript acceptance
          b) Failure to account to the author after due notice
          c) Failure to keep the book in print (see Section X)
      2. Survival of Author's representations and warranties
      3. Licenses granted before termination survive?

       TIP. Pay attention to what triggers the duty to return the advance?  

XII. Miscellaneous
      1. Choice of governing law
      2. Mediation / Arbitration clauses
      3. Bankruptcy
      4. Modification
      5. Literary agent clause 

###

 

Illustration: from Lawton Mackall's Bizarre 

Illustrator: Lauren Stout

Date: 1922

Related Blog Posts

Libel in Fiction

Fair Use in a Nutshell 

Twelve Copyright Permission Myths  

Estate Planning for Authors 

DISCLAIMER / TERMS OF USE

Not Legal Advice. The information contained in this blog is intended as general advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information published here. Be aware that the law may vary from state to state. Therefore, this blog cannot replace the advice of an experienced attorney. No attorney-client relationship is created by your access to or use of this website.   Contacting us by email does not create an attorney-client relationship. If you wish to establish a professional relationship, it must be done through a mutual agreement in writing. Please do not send us any confidential information until an attorney-client relationship has been established.

Attorney Advertising. While intended as general advice, this blog and its contents may be considered attorney advertising under the rules of certain jurisdictions. Hiring an attorney is important and should not be based solely on advertising. Past results are no guarantee of future results. 

Limitation of Liability. We disclaim any liability, loss, damage, injury, or cost (including, without limitation, attorneys' fees, lost profits, or data) caused by the contents of this blog or website. 

Links. This website contains links to third-party websites and other resources. These links are provided solely for your convenience and educational purposes. They should not be construed as endorsements by the Law Offices of Lloyd J. Jassin. 

Jurisdiction.    Using this website, you have irrevocably agreed to the U.S. federal and state courts' sole and exclusive jurisdiction and venue in New York City, USA. Any action, suit, or proceeding involving the use of this website, the information contained in this website, to the extent permitted by federal law, will be governed by the laws of the State of New York (excluding New York's choice of law rules) in the absence of applicable federal law.

Trademarks. COPYLAW is a registered trademark of Lloyd J. Jassin.