Kill a Reader, Save Book Publishing (Satire)

Hashtag #Mushdoom

Can this book save the book
publishing industry?

Google promises that the quality of information found on the internet (whether on depression, or leasing a car) can be inferred through its search rankings.  However, often the author's credentials are unclear or inaccurate, or the commercial sponsorship of a site masked.  Currency of information is another problem. 

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

Simple.  A seriously injured mushroom hunting enthusiast led astray by an anonymous Wiki contributor who misidentified a poisonous mushroom as a "safe" and delicious substitute for store bought 'shrooms.   Bad information is never cheap.  That's the "Got Milk" message the AAP  should shout from the roof tops.  Blogs and Wikis kill!  AAP member publishers bring great ideas to life!   

A dead mushroom enthusiast would open the door for the AAP to extoll the virtues of curated mushroom non-fiction.

For Immediate Release.  If you are working on any stories regarding the recent mushroom poisoning deaths and health risks associated with un-curated information found on the Internet, we at that Association of American Publishers can provide a publishing industry expert for any relevant stories you are working on. Wikis kill. We 'bring great ideas to life."

Nancy Grace & Negligent Publication Law

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

I can envision the news coverage.  During the "negligent publication" trial, television journalist, legal commentator, and cookbook author, Nancy Grace convicts the Wiki author in the court of public opinion. The hashtag "mushdoom" starts trending.  The show runs a crawl at the bottom of the split screen. "Did blogger kill 32-year-old mushroom hunting mom?" For quick commentator analysis the show cuts to a commercial publisher, who talks about the publisher as curator, author credentials, branded content.  "The reader's death was foreseeable, and wouldn't have happened but for a poorly researched Wikipedia article on edible mushrooms."  The message being, "You should carefully consider the source of the information."

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

Trademark is the New Copyright

The tension between copyright and free speech, which the internet has exacerbated, has hurt traditional copyright monopolists.  The way I see it, trademark is the new copyright.  It is the key to competing with free. Just like antivirus software which scans for suspicious files and protects your computer, a trademark filters high risk information.  Without trademarks, John Oathout, author of Trademarks, says "consumers would have no basis for selection or rejection, or any assurance that a particular product is the product they are seeking." Regrettably, though, publishers have undervalued the goodwill associated with their colophons and imprints for years.

Alfred A. Knopf

If publishing houses wish to remain standing, their colophons and imprints need to stand for something.  Alfred A. Knopf (the man, not the imprint) was keenly aware of that proposition when he wrote The Borzoi Credo, a publishing manifesto which 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."

A Modest Proposal

If I were publisher of Peterson’s Field Guide to North American Mushrooms, I'd consider one severely ill (or, better yet, deceased), penny wise, but dollar foolish, mushroom enthusiast who relied to his detriment on a Wiki, manna from heaven.   

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


Resources

Alfred A. Knopf's Borzoi Credo. 

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

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

How You (and Your Heirs) Can Terminate Contracts & Reclaim Copyrights

A Passing Opportunity to Break Bad Book & Songwriter Agreements

The year is 2022, and the copyright termination bomb is ticking loudly for book and music publishers. Designed to protect authors of older works, who, in hindsight, signed away their rights for inadequate compensation, Congress devised a "reset" button that allows them to reclaim their  copyrights. This powerful right trumps written agreements, even agreements that state they are in perpetuity.  Typically, when served with a notice of termination, a publisher will attempt to  negotiate a re-grant of rights. However, if  those negotiations fail, the copyright owner regains control of their copyrights.  

The Devil is in the Details  

Notices of termination can be served and recorded up to ten years before the termination date you've selected. The latest a notice can be served is two years before the termination date you've selected. A missed deadline is a lost opportunity.  

For older works (explained below), when to send a notice of termination turns on when the copyright was secured. For post-1977 works, when the work was published, or the agreement or license signed, determines the termination date. 

Important! Because of the complexity surrounding the termination of contracts and licenses, you should seek legal help regaining ownership of your copyrights.  

Pre-1978 Works: the "56-Year Rule"

Under section 304(c) of the Copyright Act, pre-1978 grants may be terminated during a five-year window beginning 56-years after the date copyright was secured. This allows authors to benefit from laws that extended the copyright term from 56-years to 95-years. To terminate a publishing contract or other grant of rights, the author, or their heirs, must file a notice of termination within the time limits specified by the Copyright Act.  Notices must be sent and recorded with the Copyright Office between two and ten years before the termination date selected. For example, if copyright in a work was secured in 1964, the window for sending a notice of termination closes in 2022. If not served and recorded, the agreement will continue for the term of the original agreement. 

Post-1977 Works: the "35 Year Rule"

A different calculus applies to post-1977 works. Like pre-1978 works, termination notices must be sent between two and ten years before the termination date selected. However, the window for sending a notice of termination opens the earlier of 35-years from the date of the work was published, or 40-years from the date the agreement granting rights was signed. 

The 35-year rule only applies to grants of copyrights signed on or after January 1, 1978 by the author.  It does not apply to grants or licenses signed by the author's heirs. As long as the work being terminated is not a “work made for hire,” the right of termination cannot be waived. 

Make a Date

The date termination takes effect is determined by the author or their heirs.  However, the process is not considered complete until a legally acceptable termination notice is recorded with the Copyright Office, which must be recorded before the termination date.    

Example 1: Suppose a book publishing contract was signed in 1988, then the termination date must fall between 2023 and 2028. The latest notice of termination can be served and recorded is 2026 -- two years before the last available termination date. Before the stated termination date, an author, for example, can negotiate for a better deal with his original publisher, or, make a new deal with a new publisher upon termination.

Example 2 below, illustrates how statutory successors (not those named in an author's will) were able to reclaim a full 67-years of copyright of pre-1978 copyrights, under very specific circumstances.            

Example 2. Prior to 1978, copyright duration was split into two 28-year terms.  Before to the expiration of the initial 28-year term, to prevent a work from falling into the public domain, a renewal application had to be filed.   Miles Davis, the jazz icon, died in 1991, before the end of the 28th year of copyright of his revolutionary 1970-album Bitches Brew. Because he died before the 28th year of copyright, his renewal term rights in the song Bitches Brew vested automatically in his four children according to the Copyright Act -- cutting off  a nephew mentioned in his will. Today, his sons (two of whom were not included in their father's will) and his daughters, jointly control the copyright to Bitches Brew and other songs. Here, the Copyright Act rewrote both Miles Davis' will and his agreements with his music publisher.

Termination Checklist

Don't Delay.  If you do nothing, the termination window will close and not reopen.

Review Old Files.  Assemble publishing agreements, and other grant of rights,  including film option agreements in one place. Make a list of titles, contract and publication dates before meeting with an attorney. 

Don't sign anything without consulting an attorney. It's easy to inadvertently exhaust your termination right by regranting rights to your publisher. That is what happened to Christopher Robin who re-granted rights to Winnie-the-Pooh to Disney in 1983.  The re-grant right cut off his heir's right terminate the original 1930 publishing agreement signed by A.A. Milne.  

Negotiate.  If you would like to negotiate improved terms, hire an attorney.  Keep in mind there is no such thing as a standard agreement. Advances, royalty rates, the scope of the rights grant, duration of the agreement, and the right to create new works based on the old, are all on the table. 

Don't Assume Your Estate Planning Attorney Understands Any of This.   Suffice it to say, due to its complexity, and the absence of clear judicial guidance, it's not surprising that agents, as well as many trusts and estates attorneys, are not conversant in the ins and outs of copyright termination. For that reason, we are happy to work cooperatively with your trusts and estates attorney or literary agent.  

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

We Can Help You Reclaim Your Copyright 
Contact us. We work with both authors and heirs to (i) identify if a copyright is eligible for termination; (ii) determine who are the parties who hold the termination right; (iii) calculate termination and notice of termination dates; and (iv) prepare, serve, and record notices of termination.  

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

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

(c) 2022. Lloyd J. Jassin

Amazon & Google Agree to Antitrust Consent Decrees

2018 Publishing Predictions

My 2013 predictions mainly concern the year 2018. Why?  It's easy to predict the near term (unless you are trying to accurately predict where the markets will go over the course of one year).  Also, the practical utility of a short term prediction is limited.  When the air raid siren has sounded, it's too late to build a shelter.  Predicting the mid term allows time to adjust behaviors and positions.  And, as a celebrity seer once said to me, "If you engage in fortune telling, foretell the mid-term.  That gives them time to forget your inaccurate or mistaken predictions."   His other advice was to "predict outcomes not details."  On that one, I've broken with accepted prophetic practice. 

[Suggested musical accompaniment:  Robert Plant & Alison Kraus' version of the late great Allen Toussaint's Fortune Teller.  Video embedded at end of post.]

Prediction 1

FTC Cuts Amazon & Google Down to Size

(New York) November 22, 2018.  The FTC concerned about

Depiction of FTC Attack on Google

vertical integration (control of content production and distribution) will prohibit Amazon and Google from having a monetary interest in content they distribute or display.  Amazon and Google will agree to consent decrees, whereby Amazon* is forced to spin off its Simon & Schuster, Avalon, Dorchester, Sony Records and Showtime divisions.  Likewise, in response to accusations it abused its market power, i.e. the ability to control price or reduce competition, in internet searches,   Google will agree to divest its Google Maps, JK Lasser Tax Institute, Automobile Club of America, Zagat and ESPN divisions. In a complicated formula to be worked out by FTC and European regulators, within 90 days of the decree, Google will be ordered to start sharing proceeds of revenues derived from sale of personal data of users who click a new "Monetize Me"  button.  Neither Google nor United Parcel Service (UPS)  will be willing to comment on how the  consent decrees will impact their proposed merger.  Lloyd Jassin will be quoted as saying, "Privacy is the new copyright."

"Protecting competition in the digital marketplace is a high priority for the FTC," will say Bureau of Competition Director Richard Feinstein. "This order will ensure that vigorous competition continues in the worldwide online market for entertainment and information products, and that consumers are not faced with reduced innovation as a result of digital favoritism and dwindling access to markets for independent publishers and other independent content producers." 

"The Internet is better served with less regulation," David Crane, a Google-friendly legal scholar will be quoted as saying. "This violates nearly every tenet of laissez faire capitalism.   What Google is doing is good business.  It's not exclusionary.  While Google is invaluable, it's not essential.  Stop complaining about your inability to compete. Start competing."   

*Why the FTC Took Amazon & Google Apart: An Antitrust Analysis: By 2016, the FTC determined that Amazon and Google had turned their backs on their original missions of openness and innovation. The platforms, via exclusionary tactics, have  become toxic to healthy innovation. Responding to real or perceived external threats, both companies had abused their market power by raising barriers to entry,  making it difficult for potential new entrants as well as large companies to compete.   It started in earnest in June 2012, when Amazon Publishing acquired category publishers Avalon and Dorchester. Four years later, Forrester Research reported that 70% of America's online shoppers began their search for a product at Amazon. Google which tied search to advertising, controlled 70% of America's advertising sales by 2016, and was rumored to be in talks with UPS about a possible merger. That same year, the EU fined Google $500M Euros for cooking search results, i.e., favoring its own content over the content of others. Book publishers and more so, film and television studios and the interactive gaming industry had become a threat to Amazon. They could withhold products, or, in the case of studios and the interactive gaming industry, increase license fees at the end of a license term. Google, now a mature business, simply lost its way. The FTC determined it was time to regulate the platforms. But they needed to make their case.  Amazon had shown an unsavory willingness to withhold technological innovations from suppliers and vendors for its own advantage. Using its position of dominance, it often disabled "buy now" and "buy" buttons to address threats from its publishing suppliers. But, it wasn't just about books. Similar tactics were used to punish suppliers and deny threats to entry in gaming, music, publishing, motion pictures, kitchenware, infant diapers and formula, and shoes. Hoping to mimic the trading template created by Amazon, Google eyed UPS as a way to fill in the gaps in creating a fully integrated trading company. Amazon and Google's entrepreneurial audacity were tolerated until they exhibited parallel habits of willful exclusion of others - otherwise known as conscious parallelism in the rubric of antitrust law. After being scrutinized for possible antitrust violations for several years, the FTC determined that they ceased to be the instruments  of innovation; so the FTC cut them down to size. Reflecting on the Apple "Agency Pricing" consent decrees of 2012 - 2013, a former Justice Department attorney (anonymously) observed that "Price fixing cases were easy to sell, both politically and as a coherent story. There were clear villains. Apple. Big publishing. The consumer felt it in their wallets. The price of eBooks went up. When former innovators go bad, those are the tough cases. When do you bring an enforcement action? It's a matter of timing. The FTC waited until they believed innovation and openness had taken a back seat to discriminatory practices."

Prediction 2 
 
Google Wins Fair Use Battle *

If you are looking for something short-term, something 2013'ish, I predict that Google wins (or The Authors Guild settles) the fair use litigation commenced in 2005; that Google does not seek attorney fees or otherwise act punitively.  Is the mass digitization of  books a good thing?  Yes, unless Google favors its own content over yours.  See, 2018 predictions above. 

*Update: Yep, it came to pass.  On October 16, 2015 the U.S Court of Appeals for the Second Circuit affirmed a 2013 lower court ruling that Google’s library book scanning project was protected by fair use and was not copyright infringement.


Resources 

Looking Back on My 2008 Predictions (blog post) (Lloyd Jassin):  I urge you to to look at the end of the post, where I score my 2008 predictions.  The growth of the independent book sector, which was predicted, as well as Google's search engine preference for its own content, are just two or four major predictions that have become reality.    

Three Versions of Fortune Teller

 

Looking Back: My 2008 Publishing Predictions

Amazon Changes the Digital Landscape

Published in the Summer 2008 issue of
 The Center for Independent Publishing newsletter

 

Recently, the industry was shaken by an announcement by Amazon that the company was changing its order fulfillment policy. In a nutshell, Amazon threatened to disable a book's "Buy Now" button if that book's publishing company did not subscribe to Book Surge Print, an Amazon owned print-on-demand (POD) printing service. Many called it a blatant attempt at a monopoly, because Book Surge is the only POD option available if one wishes to sell books through Amazon using its "Buy Now" button.

As the market evolves and embraces digital distribution options, we at the Center for Independent Publishing (CIP) find Amazon's move both troubling and exciting. Amazon wants to be active all the way along the digital supply chain from production to marketing to distribution. By force of will its Book Surge gambit will make Amazon the de facto virtual digital warehouse for hundreds of thousands of digital book files. What role will Amazon play in helping (or hindering) our members to make better use of their digital assets?

It strikes me that from Amazon's large and powerful river might flow not just POD books, but e-books, books disaggregated and re-purposed for mobile hand held devices, audiobooks and other digital derivatives -- whether now known or hereinafter invented. Our hope is that in the swirl of that digital river, we will see new digital revenue streams emerge for smaller and independent presses. If Amazon remains committed to the indie press segment, and acts as a bridge not just between publishers and traditional readers, but between publishers and digital readers, it becomes an enabler, and, perhaps, the best friend an indie publisher could have. However, Amazon's favoritism to Book Surge is a slippery slope that could easily decrease diversity. Amazon is steering consumers to books that are produced by its owned-and-operated press.

While it doesn't look like the cost of gaining access to the number one online bookstore has gone up (except for duplication costs associated with files formerly entrusted to other POD printers), the CIP is concerned about Amazon’s monopolistic intentions. The company’s claim that it is not seeking exclusivity (i.e., requiring POD titles be printed exclusively through Book Surge), seems to be a subtle bit of specious reasoning. Amazon's gain is the ability to monopolize the POD market. It is offering a single printer option. Just as Amazon deserves our praise for having been a good publishing partner for our publisher members, it deserves our scrutiny as it moves from online bookstore to what is beginning to look suspiciously like a celestial publishing house.

Traditionally, bookselling was separated from publishing, with booksellers (including Amazon) realizing the benefit of combining the wares of many publishers. Now that Amazon has the ability to perform all of the activities that take place between delivery of an edited manuscript and delivery of finished books to readers, the publishing industry needs to take a hard look at its current business model. Publishers have the potential to get squeezed on both ends. For example, there is the Barnes & Noble - Sterling combo with an increasing number of book sales being titles self-published by B&N. It is the same deal with Amazon, which is actively going after new product to self-publish with Createspace as well as original audiobook projects from Audible. To the extent publishers covet virtual shelf space at Amazon (with one-click ordering), Amazon's move should give indie publishers pause.

What if this virtuous publishing partner determines that it is profoundly profitable to publish their own books? If Amazon does not use its great size and ability to bring its own books to the attention of readers, we will be very surprised. When Amazon does this, we fear it will be at the expense of independent publishers whose distinctive personalities are reflected in the books they publish. To date, Amazon has been a good partner, but operating under the aegis of a publicly traded company who has shown the ability to act arbitrarily is disconcerting to the CIP and our publisher members. Publishing is a competitive business. It is likely to become more competitive if Amazon starts favoring its own self-published books

So, as a general proposition, vertical integration is a bad thing. Perhaps, the market will correct itself, as publishers move over to www.barnesandnoble.com, and other digital asset distributors and e-retailers pop up. Likely, that won't happen. Book distribution is not sexy enough, and Amazon is like the slightly abusive partner we tend to tolerate for the benefit of the kids. If the industry doesn't get an order of protection from the Justice Department, then perhaps we need a Plan B.

Physical distribution of books is largely the preserve of large conglomerate publishers and a handful of large independent distributors. It’s not a pretty business. It employs the equivalent of Yankee peddlers who hand-sell books to brick and mortar stores, with full return privileges for oversold books. If we extrapolate, the Book Surge gambit may be seen as a relatively painless first step in managing the digital distribution of titles to e-tailers and licensees. Amazon has the amazing ability to manage and organize content. It also offers a painless online experience for the consumer. Instead of Amazon merely being the recipient of digital assets, it’s easy to imagine Amazon providing comprehensive consultancy services to our members, helping them prepare their content for digital distribution for and beyond the traditional Amazon platform. Is the Book Surge gambit a disguised opportunity for indie publishers? Perhaps. Indie publishes are the small furry mammals scurrying around the legs of large dinosaur publishers. The digital meteor has hit. To survive, indie publishers need to be able to present content in a variety of digital formats. Is Amazon a friend or a foe? Only time will tell.

If I had to guess, I'd say in the next 24-months Google buys Ingram (Googlegram?) for its digital group assets (including Lightning Source), and it out-Amazons Amazon by creating the ultimate digital warehouse/distributor in the sky.

If Google were to exhibit digital favoritism, it would steer book buyers to its wholly owned and super- efficient Lightning Source imprint. Amazon owns the online store. Google owns the web. Amazon merchandises books. Google sells them contextually. Balance is restored to the planet.

The short- to mid-term changes in trade publishing are going to be dramatic. Large publisher dominance is shrinking in the new media economy. When the change comes, we believe the main winners will be independent publishers. They music industry taught us that. Amazon has confirmed it.

Lloyd J. Jassin
Chair, Executive Committee
Center for Independent Publishing

Postscript / Scorecard

Welcome to 2016! Glad you could make it.

It's time to assess my fortune telling abilities. So, how did I do in predicting the future of publishing? As predicted, Amazon's was the catalyst for profound changes in the publishing industry.  

These are the five publishing predictions I made in 2008: 

Prediction No. 1: Amazon acquires book publishing companies.
Verdict: Correct. In 2012 Amazon acquired Avalon and Dorchester.

Prediction No. 2: Google skews search results to favor its own content.

Verdict: Correct. As of this writing (late 2017), Google is appealing a record €2.4bn (£2.2bn)fine levied by the EU over search engine results. 

Prediction No. 3: Amazon will crush the competition. 
Verdict: Correct. In 2015 Amazon controlled 74% of the eBook market. 

Prediction No. 4: Google Acquires the Ingram Content Group.
Verdict: Okay, not yet. Give it time.

Prediction No. 5: The big winner will be independent book publishing. 
Verdict: Correct. "[N]on-traditionally-published books now make up nearly 60% of all Kindle ebooks purchased in the US, and take in 40% of all consumer dollars spent on those ebooks," according to a 2015 report by the AAP (Assoc. of American Publishers).

Are Literary Estates a 'Clot' on Creativity?

Book Review: Modernism & Copyright

The Chicago Manual of Style exhorts writers, editors and publishers to employ fair use “boldly.”  Easier said than done, suggests Paul K.Saint-Amour, editor of this thought provoking collection of essays that focuses on the tension between copyright and modernism.   Fair use, of course, is a doctrine that helps courts avoid the rigid application of copyright law, where rigid application would stifle the very creativity copyright law was designed to promote.  While essential to free expression, fair use is at best, an unpredictable doctrine.  

In the introduction to Modernism & Copyright (Oxford University Press), Saint-Amour, an associate professor of English at the University of Pennsylvania, tells us that his book explores how the “law shapes what is published, studied and canonized.”   Saint-Amour passes that task along to fourteen essayists from diverse fields, who discuss the interplay between copyright, privacy and publicity rights on the one hand, and the progressive agenda of modernists to adapt and borrow freely from others’ works. 

Walt Whitman's Niece

Billy Bragg & Wilco

No one reading this book will likely disagree that the unauthorized use of protected materials to create new art, music and literature is too often automatically thought of as an economic threat to the material that has been borrowed or bent.  The kind of permissiveness the book advocates for is in fact, a preference for a less regulated dialog between past and present – an enhanced ability to mix-and-match that is more in keeping with our digital present than our analog past.   What we lose and what we might gain by freely manipulating the past, can’t be known.  But what is clear from reading the book is how modernistic art, literature and music have been shaped haiku-like by the confines of intellectual property law.  

In a chapter on Ezra Pound, Robert Spoo, a law professor, laments that the general spirit of unpermissiveness and paranoia of the current copyright regime which befuddles and intimidates contemporary artists and authors.   In another era Ezra Pound called copyright “dishonest,” “rascally,” and a “clot” of law.   Unlike Pound who actually worked in a “more permissive and less propertized climate,” today’s artist, author  and composer, sitting in their studio or study, works under much greater pressure – and at their own peril -- to get the law right.   Today, the chilling penalty for getting copyright law wrong is receipt of a DMCA Take-Down Notice, or worse, a call to defend your art or scholarship in court.  Paradoxically, Spoo points out that “Today, the estates of James Joyce, T.S. Eliot, Samuel Becket, William Faulkner and other modernist authors use extended copyrights to discourage or control use of those authors’ works by scholars, critics and others.”  

Creativity is not a self-contained activity observes Celia Marshik, in her essay Thinking Back through Copyright.   Here, the focus is on Virginia Woolf’s feminist classics, A Room of Her Own (1929) and Three Guineas (1938).   She asserts Woolf’s words and sentences were intimately linked (but not in a parasitic sense) to recognizable voices from women’s literature.   “[N]o author works in that room alone,” Marshik points out.   Woolf herself , admitted that “masterpieces are not single and solitary births; they are the outcome of many years of thinking in common of thinking by the body of people, so that the experience of the mass is behind the single voice” (Room 65).   There are echoes here of Mark Twain:  “We have no thoughts of our own, or opinions of our own, we are a compost heap made up of decayed heredities, moral and physical.” 

All of this is background for three chapters on the intersection of copyright law and the law of estates and trusts.  These chapters should be of particular interest to readers of this journal.  Here, the focus is on publishing -- not music, movies or theatre.  Of the three chapters, attorney Mark A. Fowler’s contribution stands out for the clarity of its prose, and prescriptive approach to dealing with literary biography -- writing about the literary lives of writers. 

What makes literary biographies so successful is also what makes them so dangerous to undertake.    They rely on unpublished material and appropriate literary language designed to convey the personality of the writer who is under scrutiny.  This chapter surveys a trio of cases involving quotations from unpublished materials by J.D. Salinger, L. Ron Hubbard, and Richard Wright – a trio of dead authors whose estates harbor animosity against literary biographers.  The three chapters that follow include Carol Loeb Shloss’s essay on her suit against the Estate of James Joyce to adjudicate what constitutes fair use of  unpublished letters, and a pair of illuminating essays by Gertrude Stein’s literary executor (whose non-Joyce-like approach to permission requests is to honor the bohemian spirit of Stein); and Ezra Pounds’ literary executor.  

While following no single line of argument, the essayists would find no issue with the notion that reigning in copyright would expand diversity.   One of the central messages of the book is that copyright is in crisis.   The internet is a major mutation, changing our relationship to content.    Copyright, the book argues, is ill equipped to accommodate creator-publisher-consumers. 

For over 300 years publishing was a top down, multiple uniform copy, “All Rights Reserved,” “No Derivative Works,” “You Buy it You Own it”  industry.  The digital world is not uniform.   It is fundamentally altering our relationship to content by allowing creators to “borrow” and “recast” with near impunity what came before.   While not everything here is above criticism, Modernism & Copyright is a rare interdisciplinary work on the challenging topic of intellectual property.   Refreshingly, its focus is not just whether copyright will survive the digital deluge (a topic of discussion which has gotten old), but what impact copyright has had on the creative process.  

Recommended.   

_______________________________

Paul K. Saint-Amour (ed):  Modernism & Copyright

Oxford University Press, 2011, 381 pp.

Trade Paperback, $29.95

ISBN13: 978-0-19-973154-1, ISBN10: 0-19-973154-3

Lloyd J. Jassin

Originally Published in Publishing Research Quarterly (Springer)

Faulkner Quote in "Midnight in Paris" Sparks Lawsuit

“The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party.” 

                                                       -- Wood Allen's "Midnight in Paris"

 
The above quote from William Faulkner's "Requiem for a Nun" was used in Woody Allen's "Midnight in Paris" (2011) without permission.  It has sparked a copyright and trademark infringement lawsuit.  As reported by The Hollywood Reporter, the suit was filed with the U.S. District Court in Mississippi on Thursday. In the movie, Gil Pender (Owen Wilson), who utters Faulkner's words, is a successful Hollywood screenwriter who, to quote The New Yorker ,"considers himself a hack," someone "struggling to write a novel, a dubious-sounding story about a man who lives in the past."

The dialogue is categorized in the complaint as both an "infringing quote" and "likely to cause confusion, to cause mistake, and/or to deceive the infringing film's viewers as to a perceived affiliation, connection or association between William Faulkner and his works, on the one hand, and Sony, on the other hand." 

A good case can be made for fair use of the borrowed language.  The studio, if it wishes to litigate the matter, would argue that the screenwriter didn't lack imagination.  Allen wasn't padding the script or regurgitating Faulkner. He was bringing new insight to Faulkner, and the words quoted.  Among other things, William Faulkner is cultural shorthand for the struggling novelist who turns to Hollywood for fame and fortune. Gil called himself a Hollywood hack.   Faulkner called himself a failed poet who took up the novel.  Point.  Counterpoint. Gil's struggle is the inverse of Faulkner's.  How can we learn anything about ourselves if we can't quote enough to make a larger point about the human condition?  Put another way, the word "Faulkner" packs a lot of meaning. The motive for quoting Faulkner matters. It was to make a larger point -- not steal bread from the mouths of Faulkner's orphan children.    

Okay, but the Faulkner orphans might still wonder why Congress would allow Allen to borrow (steal?) their literary property - but not their feeding bottles or bonnets?  Fair use allows scholars, researchers and others to borrow or use small (and sometimes large) portions of in-copyright works for socially productive purposes without seeking permission. The doctrine -- which complements the First Amendment -- helps courts avoid rigid application of copyright law where rigid application would "stifle the very creativity which the law is designed to foster." Against this backdrop, fair use can be looked at as a balancing act. It is an imperfect attempt to reconcile the competing ideals of free speech with the property rights of individual creators. Fair use recognizes that the reason for our nation's copyright laws is not so much for individual creators, but, rather to promote the progress of art and science.

Regarding the trademark claim, more likely than not it would be dismissed on a motion for summary judgment.   Arguably, it's not a trademark use. It's a passing reference in an artistic work to another artistic work.  Artistically relevant references to cultural icons, whether dead novelists or consumer products, are often protected under the First Amendment. They call it the Rogers artistic relevance test or exception. Ginger Rogers once tried to stop a movie that included her name in the title.  The movie was Fellini's satire "Ginger & Fred," which concerned two retired small-time dancers who were known as Ginger and Fred.  When Ginger Rogers learned of the film, she claimed the movie falsely implied she endorsed it - a violation of Section 43(a) of the Trademark Act. Affirming the trial court, the Second Circuit Court of Appeals held that, provided, a celebrity's name has some reasonable "artistic" relationship to the content of the work, and is neither "explicitly" misleading, nor a thinly veiled commercial advertisement, the slight risk that the celebrity's name might implicitly suggest endorsement or sponsorship, may be outweighed by the public interest in free expression. 

In the context of a recent blog on the HathiTrust ruling, I commented that when suing you have to keep in mind the "clear" purpose of copyright. Copyright may be called a "monopoly," but private reward must be balanced against the public good.  Based on what I know, my money is on Mr. Allen and Sony Pictures.