I'm a Copyright Attorney, Not a Sorcerer (Updated 2022)

Steal Not this Book

 

Several weeks before her death, I watched Bonnie Foreman 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. But I know it wasn't the copyright notice that did her in.

When confronted with a book curse, we are forced to reflect on our mortality. Three thousand years after the pharaoh's death, the Curse of Pharaoh Tutankhamun 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.   

Book Curses the Forerunner of Copyright Damages

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 offers a workable solution to an internet that wants to be free and authors who want to eat. 

Cloistered monks, ancient rabbis and 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 its 304,805 letters had divine meaning. For example, the following lines, written C 984, appear at the end of the Moshe Ben-Asher Codex, the oldest medieval Hebrew bible:

"Whoever alters a word of this mahzor or this writing or erases one letter or tears off a leaf . . . may he have neither pardon nor forgiveness; neither let him behold the beauty of the Lord. He shall be like a woman in impurity and like a leprous man, who has to be locked up so that his limbs may be crushed, the pride of his power broken, his flesh consumed away that it cannot be seen, and his bones that were covered made bear."

The 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." Disgorgement of profits (a copyright remedy) better fits this type of crime than broken bones or necrotizing fasciitis. Parenthetically, 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, initially appeared as concluding statements at the end of a book or manuscript. They provided information about the scribe or copyist, the 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 the threat of consequences for those who publish "impudent frauds" cements the connection in my mind.

Curses and copyright notices should be displayed prominently in a manner that stands out from the accompanying text.  In the Encyclopedia of the Book (Oak Knoll/British Library), Geoffrey Glaister 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.  Today, 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. Whether you are an "Eye of newt and toe of frog" practitioner, or a pragmatic publishing type, I  recommend you display your disclosures prominently.  

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, inspired by the Statute of Anne, was amended to require notice to 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 painfully polite "All Rights Reserved" statement in use today with the average illuminated manuscript curse. If you absconded with a late medieval psalter 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. Droit Moral is the French term for moral rights, which includes the author's right to defend the integrity of their work and the use of their name. King Assur-bani-pal personal cuneiform tablet collection bore the following warning: 

"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

Clearly, the profound fear of being forgotten loomed as large in Babylonia 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 screenplay writer whose livelihood (and footnote in history) depends on the works that 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 Gutenberg invented the printing press, between the 5th and 13th centuries CE, books were precious handwritten objects coveted by the wealthy elite and marauding Norsemen. The heathen marauders targeted Christian churches, killing defenseless monks and hauling away intricately detailed illuminated manuscripts containing equally detailed book curses. As the monks of early Christian Ireland discovered, a curse is unlikely to have a persuasive impact if the marauder can't read. But if you use a curse and a chain with a heavy rod to lock your psalter to a desk, you are more than twice as safe as you would be with either of them alone. 

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, magic offers an intriguing pre-movable type solution to a 21st Century dilemma. On January 1, 2024, Mickey Mouse will pass into the public domain. With Disney unable to extend the copyright term, one can imagine Mickey bedecked in a magic blue hat with white stars and a crescent moon conjuring up an army of battling brooms to delay the move into the public domain. Unlike a copyright, a curse has no expiration date.  

©💀 2016 - 2022 Lloyd J. Jassin  All Rights Reserved. 

Disclaimer & Curse: This article is not designed to give specific advice concerning specific circumstances  Readers are strongly cautioned to consult an attorney or practitioner of the dark arts  This article may be reproduced in whole for non-commercial purposes, provided the author and website are credited  If you violate these term you will 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 private practice, concentrating 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  He's 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  L.J. 1992

Threatening Bookplate via 'Confessions of a
Bookplate Junkie' Blog

What You Need to Know Before Hiring a Ghost Writer

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

Nearly 50% of marriages end in divorce. Creative partnerships fare no better. Creative partnership breakdowns, however, can be averted by a well-drafted collaboration agreement that anticipates potential conflicts.

Good Contracts Make Good Writing Partners

Collaboration agreements define the parties' goals, rights, and remedies and anticipate what could go wrong. While there is no single reason for their failure, creative partnerships often fail due to poor communication and unrealistic expectations, compounded by the lack of a solid agreement reflecting the parties' intentions.

If you do not believe a collaboration agreement is necessary to avoid the despair and disappointment of a failed collaboration, bear in mind that many publishers require you to have one.

  

How you deal with author credit, compensation, expenses, copyright ownership, and approval of business and creative decisions depends on the parties' leverage and sense of fairness.

 

Who Owns the Work?

People jointly creating a work with the intent their contributions be merged into a single work are often caught unaware of the consequences of working without a written agreement. In the absence of a formal written agreement, the law of joint authorship fills in the gaps. In such instances, copyright law presumes equal ownership and royalties. Judges do not apportion a larger or smaller revenue share based on the collaborators' contributions, experience, or reputation. Expenses and profits are split 50/50 - unless otherwise agreed to in writing.

 

If legally determined to be a joint work, each author is treated as the owner of the entire work. Either may exploit the work.  However, a coauthor can grant non-exclusive licenses to copy, distribute, adapt, display and perform the work, subject to a duty to account to each other. Imagine a situation in which a film studio expresses interest in adapting a jointly authored biography of President Zelensky of Ukraine. The studio will demand the exclusive right to adapt the book to avoid two competing biopics. Without a written agreement addressing ownership and control, an uncooperative co-author (or a deceased co-author's estate) can prevent the licensing or sale of motion picture or other rights.

Ghost Written & "As Told To" Books 

 

If the objective is to strengthen your personal brand or create brand awareness of your business, a work for hire agreement is an acceptable way to own and control the content you've contracted for. There are two sets of circumstances that determine if a work qualifies are a work for hire: (i) an employee acting within the scope of their employment; and (ii) there's an agreement that states the work is a work for hire owned by the party that commissioned it. The influential Second and Ninth Circuits, for example, require that a work for hire agreement be signed for work begins. 

 

Just like collaboration agreements, no two ghostwriter agreements are alike. While a writer for hire may give up copyright ownership, what form of credit they receive  (discussed below), how revenue will be shared, and what happens if the hiring party decides to abandon the project is subject to negotiation. 

 

A ghostwriter agreement should clearly state what is to be delivered and when. In addition to word count, delivery dates, and revisions, you must define precisely what you need from the writer. Is it a warts and all, non-idealized memoir? Or is the ghostwriter's job to put the best face on your story without resorting to blatant deception? It's a good idea to attach a book proposal to the agreement or reference it. This establishes a standard under which the ghost writer's performance can be judged. More about this topic later.

Compensation is generally in progress payments tied to satisfactory (and timely) delivery. Typically, a portion of the writer's fee is paid on signing. Milestone payments are contingent on the subject finding the work acceptable.   

Case & Comment. Consider the failed collaboration between Fay Vincent, the former commissioner of baseball, and writer David Kaplan. Because they were friends, Kaplan "did not believe a formal agreement was necessary." Orally they agreed they would share credit and split the income 60/40, with the lion's share going to Vincent. Kaplan's faith in the project was amply rewarded - a least initially. Little Brown offered to pay the authors an advance of $300,000, one-half payable upon signing their publishing agreement. After 90% of Vincent’s memoir was written, Vincent got cold feet and terminated the publishing agreement. Under Little Brown's publishing agreement, they were required to return their advances. Vincent repaid the entire $150,000 to Little Brown, allowing Kaplan to keep $60,000. The issue before the court was whether Vincent could prevent Kaplan from publishing the manuscript. See Kaplan v. Vincent, 937 F. Supp. 307 (SDNY 1996).  Kaplan argued that he and Vincent were joint authors, allowing him to grant non-exclusive licenses. Because of the conflicting evidence of the parties' intent at this stage of the litigation, the court denied Kaplan's motion for a summary declaratory judgment on the issue of joint authorship. Likewise, the court dismissed Vincent's motion to dismiss, in which Vincent claimed he did not contemplate joint authorship. What began informally ended badly because of the lack of a collaboration agreement.

The Deal Terms

Below are the major elements of a collaboration agreement.  Whatever your negotiation style, don't lose sight of the fact a workable agreement is often a reasonable agreement. 

Responsibilities. If you are writing a nonfiction work,  you need a book proposal to secure an agent or publisher. A nonfiction book proposal is usually written with the understanding that substantive work on the actual manuscript will not begin until there is an offer from a publisher. Typically, the proposal includes a detailed overview of the book, the author and writer's credentials, the competition, and information about how the book can be marketed, plus one or two sample chapters. The proposal is the bait used to solicit interest from publishers.

 A nonfiction book proposal is usually written with the understanding that substantive work on the actual manuscript will not begin until there is an offer from a publisher.  Typically, a writer will predicate completion of the manuscript on a minimally acceptable advance.  

Fees & Royalties.  If the advance falls short of the parties' expectations, one party can defer all or part of their compensation from the monies advanced.  Once advance has been recouped from sales and licensing revenue, the person who deferred can start getting paid, perhaps on more favorable terms than if they had not deferred payment. Deferring payment is also a way for the subject of a book to obtain the services of a more experienced writer without having to go out of pocket for a large sum.   

 

Payment of the advance is tied to delivery requirements.  For example, a book publishing contract may specify 50% will be paid on signing, 25% on delivery of the first half of the manuscript, and the balance on delivery and acceptance of the complete manuscript. A missed deadline can result in the cancellation of a book contract and demand for the authors to repay the advance. 

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

Credit. By some estimates, up to 70% of nonfiction books are ghostwritten. It is widely believed that Theodore Sorenson wrote John F. Kennedy's Pulitzer Prize-winning book, "Profiles in Courage,” for which JFK took both the prize and sole author credit.

Writing credits take various forms.  Typical writing credits include: "by Subject and Writer" or "Subject with Writer" or "as told to Writer." By definition, if a book is ghostwritten, sole authorship credit for the work will be in the subject’s name only. When the writer's name doesn't appear on the cover, all of the career-building goodwill inures to the putative author.  That lays the foundation for a ghost requesting a higher fee.  When both parties are credited, the size and prominence of their names, and their order, need to be negotiated. 

Work for Hire.  A work for hire means that the hiring or commissioning party is the author and owner of the work.  There are two instances in which a work for hire can occur: (a) a specially ordered or commissioned work; or (b) a work created by a regular employee in the course of their employment. This definition is an oversimplification of what constitutes a work for hire. However, before you start working with a friend or a freelancer, it is crucial to clarify in writing if the work is intended as a work for hire. Include language in the agreement that explicitly states that the work is for hire and legal ownership vests in you. The agreement should include a backup assignment/transfer of copyright to cover all bases.  

Death & Disability.  What happens if someone dies, becomes disabled, or the parties determine that they just can't work together any longer? If a textbook, or other work that is regularly revised, it's a good idea to include a provision giving the surviving author the sole right to revise the work.  In the textbook arena, it's common to include a provision that reduces the royalties paid to the non-participating author.  A well-drafted collaboration agreement will also address if the person hired to work on the revision receives author credit.  

Final Approvals. Control of business affairs (e.g., who is responsible for seeking out and approving book deals?) and editorial matters (e.g., who has the authority to approve the final draft of the work or authorize revisions?) are critical issues. Unanimity may be required for certain decisions (e.g., approval of the initial publishing contract).  Suppose one party retains approval rights over the manuscript. In that case, the other party should try to impose reasonable limitations, such as a chance to correct the manuscript within (e.g., 30) days after receipt of the other party’s comments.  Requiring the party with approval rights to provide detailed editorial reasons for any dissatisfaction establishes objective criteria by which the writer can revise and have their contribution judged. 

Representations & Warranties.  From a ghostwriter, or "as told to" writer's perspective, the subject should represent and warrant that they will: (i) provide access to pertinent documents, e.g., diaries, memorabilia, legal or other documents; (ii) provide reasonable access to themselves; (iii) use their best efforts to provide the writer with access to other individuals as may be required to write or finish the book; and (iv) cooperate in good faith with the writer in pursuing a publishing deal.  Special attention should also be paid to the indemnity clause.  An indemnity is a promise to reimburse the other party should they breach their warranties. 

Reciprocal representations and warranties include: (i) no contractual commitments (e.g., a confidentiality agreement) exist that will interfere with the ability to perform their obligations; (ii) their work is original and will not violate any copyrights, rights of privacy, and publicity, or constitute a libel against, or violate any other common law rights or other rights of any person or entity.  

Suppose liability arises because of a contract breach. In that case, the non-breaching party should be reimbursed for costs and expenses (including reasonable attorney's fees), and damages paid out to others.  From the writer's perspective, material written or provided by the subject should be excluded from the writer's representations and warranties.   

TIP.  Since verifiable truth is a complete defense to libel in the United States, the agreement should require both parties to retain copies of all recorded interviews, transcripts, books, notes, letters, emails, and other research materials used to prepare the book. If there is a lawsuit, you may be required to prove the truth of the published statements. (see §9.12.1, The Copyright Permission and Libel Handbook (John Wiley & Sons).

Confidentiality & Non-Disparagement Clauses.

Confidentiality clauses are huge issues for celebrities and other public figures. Here's the confidentiality clause from the unsigned collaboration agreement between Fay Vincent and David Kaplan discussed above:  

All material, whether oral or written, contributed by either party for use in the manuscript, including materials and information provided before the execution hereof, shall be considered confidential. Neither party shall use any of such material or the facts or the information contained therein that have been provided with the parties' collaboration except as permitted hereunder or under an agreement with a third party to which both parties have previously agreed in writing, without the express prior written approval of the other party. In no event shall any confidential material otherwise be used by the party that has not furnished the same in the event there is any termination of the agreement. Specifically, Kaplan agrees not to participate in interviews, write any articles or books, or take any actions in or by which he discloses in any manner any of the unpublished information furnished to him hereunder, or any portion thereof, in connection with the work which is not publicly available or independently discovered by Kaplan, including any non-public aspect of the relationship of the parties involved in the preparation or the writing of the Work and/or its adaptation for use in any media whatsoever ....

I recommend that my clients include a non-disparagement clause in their agreements. For example: 

You agree that you will not (nor will you cause or cooperate with others to) publicly criticize, ridicule, disparage or defame Subject, his family, his business associates, company, directors, officers, shareholders, employees, agents, or attorneys, with or through any written or oral statement or image, whether or not they are made anonymously or through the use of a pseudonym. 

Nondisclosure agreements usually contain an exception, allowing one to share or discuss the agreement with their literary agent, attorney, tax preparer, or as compelled by a court or government agency (e.g., the IRS).  

 

 Conclusion

Collaboration and ghostwriter agreements are preventative medicine. Although collaborators might not feel comfortable discussing copyright ownership, death, disability, compensation, and related issues, a well-drafted agreement can limit your distress and save you thousands of dollars in lawyer fees if a dispute should arise.       

© 2013 - 2016.  Lloyd J. Jassin  

     

Related Blog Posts

 

Libel in Fiction

Fair Use in a Nutshell 

Book Contract Negotiation Checklist 

Twelve Copyright Permission Myths 

Estate Planning for Authors

How to Protect My Book Title

 

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

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

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

Simon & Schuster Slapped with eBook Royalty Class Action Lawsuit

A book is a book, except when it comes to eBook royalties. That's the premise of a class action lawsuit filed on Thursday, May 19, 2016, in the Supreme Court of the State of New York by class representative Sheldon Blau, MD.   

The lawsuit alleges Simon & Schuster has been cheating its authors by improperly categorizing eBook transactions as "sales" rather than "licenses."  

The distinction is significant, because the royalty rate for sales is much lower than the rate for the license of rights.  If categorized as a license the author receives 50% of net receipts, rather than 25% of net typically paid to authors for the "sale" of an eBook.

A book is a book, except when it comes to eBook royalties

According to a report in Law360, an unnamed spokesman for Simon & Schuster told Law360 that the division that published Dr. Blau's book, was sold (or was it licensed?) to another company in 1998, and that the publisher never published a digital edition of the book.

The eBook royalty class action looks back approximately six years, the statute of limitations on contract actions in New York State.  It alleges Simon & Schuster engaged in a "pattern and practice of paying Plaintiff and others similarly situated royalty payments for the distribution of licenses for electronic books, or "e-books," at a rate for book "sales," or some other lower rate than that required for "license" transactions."

This issue arose, in a different context, in F.B.T. Productions v. Aftermath Records, a 2007 federal lawsuit brought by Eminem's management company against his record label over digital royalty rate splits.  Like the music industry, book publishers have taken the position that digital downloads should be accounted for as sales not licenses.

In its 2010 decision, the F.B.T court held that digital downloads should not be treated as auditable physical units for royalty accounting purposes.   The Ninth Circuit ruling was important for the recording industry, because recording artists (like book authors) receive 50% of the record company’s net receipts from rights licensed to third parties -- as opposed to 12% to 20% of the retail price when a recording is "sold."

In the wake of the Eminem decision, most publishers amended their contracts, so the sale or license of  an "eBook" is unambiguously treated as a sale.   The lawsuit, therefore, challenges the publisher's interpretation of their legacy or backlist contracts.    

When Can I Legally Use, Repurpose and Publish Without Permission?

Clearing rights and permissions can be costly. Fortunately, the U.S. Copyright Act places exceptions and limitations on a copyright owner's right to demand a permission fee. Those exceptions and limitations are:  

• You can build on and share works in the public domain
  
• Unembellished ideas, concepts, principles and discoveries are not protected by copyright law. 
• The use qualifies as a fair use.
  
• When the owner has waived their interest in the work.

Below is more information about these important copyright exceptions and limitations. If after reading this you are still unsure whether permission is required, seek permission or the advice of counsel.

1.  The Public Domain (Expired & Lapsed Copyrights)

 

On January 1, 2022, works from 1926 fell into the public domain in the United States.  On January 1, 2023 copyrighted works from 1927 will enter the public domain, and so on. How long copyright protection lasts depends upon a number of factors, including, the date of publication, the date of the author's death, and in which countries you intend to publish the work.

Post 1977 Works.  For works created after December 31, 1977, the copyright last for 70 years after the author's death.  If a joint work, the term lasts for 70 years after the last surviving author’s death. For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter.

Pre-1977 Works.  Before 1978 copyright lasted for 95 years from either registration or initial publication. However, many works fell into the public domain prior to 95 years due to failure to renew. Before 1964, copyright owners were required to renew their copyrights during the 28th year of copyright. If the owner failed to renew, their copyright was forfeited. 

The Copyright Renewal Trap.  If the public domain work you wish to use is based on a work that is still in copyright, you can't use that work without the permission of the underlying rights owner. For example, while the owners of the motion picture "Rear Window" forfeited copyright by failing to renew their copyright, the owner of the underlying work, a short story by Cornell Woolrich, did renew their copyright. Since the copyright in the film only extended to the new material added by the producers of the film, the owner of the copyright in the underlying short story was able to stop unauthorized distribution of the film. The takeaway? If a work is an adaption of another work, both the underlying rights holder, and the holder of the copyright in the derivative work may hold rights. 

Other Forms of Protection.  Copyright is not the only form of legal protection for creative works. Although a work may be in the public domain for copyright purposes, rights to the material may be protected under other legal theories such as trademark or unfair competition law (which protects against confusingly similar usage by another); the right of privacy (which protects a person's right to be left alone); the right of publicity (which protects an individual’s exclusive right to benefit commercially from his or her name, voice, photograph or likeness). Similarly, works such as databases may be protected under trade secret or contract law in the U.S. and abroad. Further, new or later versions of a work, to the extent the underlying public domain has been embellished with new copyrightable material, may also require permission. 

Protection Abroad for U.S. Public Domain Works. Although a work may be in the public domain in the US, it may still be protected in other countries. For example a work by a US author that is in the public domain in the United States for failure to renew, may still be protected in countries such as Germany, where copyright formalities are abhorred, and duration is based on when the author died, not a specific term of years. If you plan to publish a public domain work abroad, you may be required to obtain permission if the author died within the last 70 years. If you fail to obtain permission, you will expose yourself to the risk of one or more lawsuits overseas.

2. Uncopyrightable Material

There are certain types of works that are immune from copyright protection altogether. Copyright does not protect unadorned or fundamental ideas, concepts, procedures, recipes, principles or discoveries. The same principle applies to facts. Copyright, however, does protect the way ideas, concepts, procedures, principles and discoveries are expressed, explained or illustrated. Be aware that where the dividing line between an unadorned or unprotectable idea lies, and one that is sufficiently developed to enjoy copyright protection, sometimes is hard to discern. As a general rule, copyright does not protect short phrases, names or titles either. However, short phrases, names and titles may be protected by trademark or unfair competition law if they serve a branding purpose. Fortunately, the use of a trademark as a point of reference in a story, or used in a non-deceptive way to criticize a product or service, will generally be deemed a fair or non-infringing use.

3. Fair Use

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. 

While invaluable to scholars, the media and business people, it should be noted that fair use is not a right but a defense to copyright infringement. The central point is that fair use determinations involve risk. So, if you can't make the decision yourself, and are risk adverse, seek permission.

To determine whether the use made of a work in a particular instance is a fair use, courts consider the below four factors. No one factor is determinative of the issue, although factor four, which relates to economic harm, weighs heavily in any fair use decision.  

• The purposes and character of the use, including whether the use is primarily commercial;
• The nature of the work that's been copied;
• The amount and importance of what was taken in relation to the original work as a whole;
• The effect the copying has on the marketability of the original work and its derivatives

Cutting Through the Fair Use Gobbledygook 

While there are no mechanical rules to define with precision what is a fair use, the following considerations, distilled from leading court decisions, will help you assess if a proposed use is likely to be deemed a fair use.        

• Fair use favors transformative uses. Use the work as a springboard for new insights. Critique the original. Make a connection between it and other works. Use it to buttress your own arguments, or the arguments of others.

• Since ideas are common property, it's easier to justify use of a factual or informational work than a creative one. That is because teaching, scholarship, research and news reporting are cumulative in ways not typically associated with art and music.

• Poetry, song lyrics, and visual works enjoy a high degree of protection under copyright law, so, fair use tilts against use of these works.  

• Quoting from unpublished materials exposes you to greater risk than quoting from published materials. While not determinative in and of itself, if a work is unpublished, that fact weighs against fair use.  

• Sometimes even a small (but important) portion borrowed from a larger work may constitute copyright infringement. Make sure the amount you use is reasonable in light of the purpose of the copying.

• Synthesize facts in you own words, keeping in mind that close paraphrasing may constitute copyright infringement if done extensively. 

• Lack of credit, or improper credit, weighs against finding fair use. However, giving someone appropriate credit, will not, alone, transform an infringing use into a fair use.

• Parody is a work that that ridicules or mocks another work. Fair use favors parody. It does not favor satire. Make certain the parody is apparent. A conservative approach is to conjure up just enough of the original to convey your parodic points.  

• Being a non-profit educational institution won't insulate you against liability if you exceed the bounds of permissible fair use.  

• The most important consideration concerns economic harm. Don't compete with the work you are quoting or copying from. If the use displaces or diminishes the market for the original work, including revenue from licensing fees, it is probably not a fair use. However, the more transformative the work, the less likely the displacement of sales will be determinative.  

4. Creative Commons
 

Creative Commons Buttons

  Creative Commons licenses are standardized licenses give the public permission to share and use a creative work on conditions set by the copyright owner. While neither an exception nor limitation on copyright, by clearly stating what is, and is not, a permissible use, CC licenses short circuits the need to seek formal permission. A CC license button (or link to the license) will appear in close proximity to the work. If you violate the terms of a CC license, in addition to termination of the license, the potential consequences include compensatory or statutory damages, or an injunction. Therefore, you must read a CC license very carefully.

If you plan to make use of a work that does not fall within the above four safe havens, then you must obtain a license or permission from the owner of the work. Begin the process early. Locating rights holders is not always easy, and negotiating rights and permissions takes time.

Finally, don't be afraid to negotiate rates with the rights holder, keeping in mind that non-profit organizations often receive more favorable permission quotes.   Also, if the amount you want to use is small, or the use will promote the rights holder, or contribute to the public good in a significant way, fees may be reduced or waived.  But, don't count on it.  

Additional Resources:

Trademark Registration and the Single Book Title
Copyright Office - Search Fair Use Opinions

Classroom Use Guidelines (not legal authority; but agreed-upon minimums)

Creative Commons

 

DISCLAIMER: This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances.   It is important that professional legal advice be obtained before acting upon any of the information contained in this article.  When in doubt, seek permission or the advice of counsel.

LLOYD JASSIN is a New York-based copyright, publishing and entertainment attorney.  He is co-author of the Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley &; Sons, Inc.).   Lloyd has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators and their publisher partners.  A long-time supporter of independent presses, he is First Amendment counsel to the Independent Book Publishers Association  (IBPA) and sits on the advisory board of The Beacon Press, one of America's oldest independent presses. 

He may reached at Jassin@copylaw.com or at (212) 354-4442.  His offices are located in the heart of Times Square, in The Paramount Bldg., at 1501 Broadway, FL 12, NYC, 10036.  Follow the Law Firm and Lloyd on Twitter at http://www.twitter.com/lloydjassin