Q: I belong to an online discussion group for independent authors who publish their own novels. Right now there is a discussion going on about whether it is a copyright violation to use an Amazon reader review in a blurb for another book by the same author inserted in the back matter at the end of the book. Some people say that quoting the reader review is fair use and others say it’s not. Someone also pointed out that it might be a violation of Federal Trade Commission rules. What’s the right answer?
A: This isn’t really a copyright issue. The most important legal question is the reviewer’s right of publicity. Copyright is secondary at best.
The right of publicity is the right of an individual to control the commercial use of his or her name, image, and reputation. It is a violation of the right of publicity to use a person’s name, image, or reputation for commercial purposes without consent. Using a person in an advertisement, product endorsement, or on commercial goods without specific permission is a clear and actionable violation of his or her right of publicity.
In the case of a book the right answer to your question relies on an important distinction in the nature of the use -- whether it is editorial or commercial. Books are editorial in nature and therefore exempt from most right of publicity concerns. Editorial use is not commercial use, even if a writer or publication earns money in the editorial process.
Beyonce provides a classic example. The first amendment protects an author’s right to write about her in such editorial works as novels, non-fiction books, news stories, and articles. Such use of a person’s name or image does not violate her right to publicity. It would be fine, for example, to have a character in a novel attend a Beyonce concert or profess an opinion about Beyonce in dialogue. However, Beyonce’s right of publicity prohibits the use her name in advertising, endorsements, or other commercial uses.
The right question to be asking in this case is whether the use of the Amazon reader review is editorial or commercial. The book itself is definitely editorial, but using the reader review in the back matter of one book to promote the author’s other books constitutes, in my opinion, an advertisement. Therefore, it’s essential to have the consent of any individuals used in promotions, ads, and blurbs. Further, that consent should be in writing. It is definitely not OK to copy a reader review off Amazon and paste it into the back matter – or to use it for promotional purposes anywhere else.
Questions of copyright arise, if at all, in cases of posting anonymous reviews or excerpts from long reviews. Such posts without consent would infringe the reviewer’s copyright unless there is a legitimate fair use defense. Fair use analysis is complex and lawyers can disagree, but I don’t think such use would be fair under most circumstances. Read More
Ask Author Law
Is it OK to use an Amazon reader review in a blurb?
Writing about real people covered by long-ago newspapers: a risk/benefit analysis
Q: Thank you for the opportunity to ask a question. I really have no idea what I’m doing.
I have stumbled across a series of articles written in a long-defunct newspaper about the unusual experiences of a professional reporter. The articles were written in the 1920s, and involve the names of real people and companies/corporations of the time.
The story is compelling, and I would really like to retell it, but am unsure as to what I’m able to do with it. I obviously do not wish to commit an act of plagiarism, copyright infringement, or libel of any kind.
I would appreciate any guidance you might be willing to offer.
A: You have raised several interesting questions, and the answers will depend on exactly how you plan to use the articles.
First comes the question of whether the articles are in the public domain. If so, you are free to use them without worrying about questions of copyright infringement. The copyrights on most, but not all of materials published in the United States before 1923 (up until the end of 1922) have lapsed, if they ever existed at all. Before the modern copyright law was enacted in 1976 and went into effect on January 1, 1978 publication without a copyright notice at all could plunge the work immediately into the public domain. Registered copyrights were initially protected for 28 years, after which they could be renewed for a second 28 year term. If they were not renewed, they lapsed into the public domain. If they were renewed, copyright protection was extended for another 28 years. However, the term of copyright has been extended several times for most, but not all works that were renewed after 28 years. For works published in 1923 or later there is a complicated set of issues to be evaluated. Here’s a link to the Cornell University copyright information website chart that can help you evaluate the copyright status of a work: http://copyright.cornell.edu/resources/publicdomain.cfm. You can also get excellent information on many copyright subjects from the Copyright Office itself. Here’s a link to a pdf about duration of copyright: http://www.copyright.gov/circs/circ15a.pdf. I’d like to add that the Copyright office is a terrific resource for copyright questions in general.
Even if you can’t determine that the newspaper articles are in the public domain, the risk of a defunct newspaper coming out of the woodwork in 2016 is low. There are not many clean yes or no answers to copyright questions, but it can help to think in terms of a risk/benefit analysis. Your own tolerance for risk along should be considered along with such factors as the vulnerability of your assets, insurance coverage, and business entity status.This is merely an informed guess and it is NOT personal legal advice, but it seems to me that your risk of liability for copyright infringement falls in a range from extremely low to non-existent.
But (and isn’t there always a but?), you referred to plagiarism and that’s not the same as infringement. Plagiarism is an academic concept. Direct copying of someone else’s work without attribution to the source may be considered unethical in academic writing and journalism -- even when it’s not infringement. It’s a subtle distinction, but an important one to be aware of. Acknowledging your sources (in notes, the acknowledgement section of a book, or directly in the text) helps you avoid plagiarism and keep your authorship ethical as well as legal.
You also mentioned libel (written defamation). Again, a risk/benefit analysis is helpful here. In this particular case, my educated guess is that most, if not all, of the people mentioned in the articles are dead. If so, your words can’t injure them legally and you’re probably off the hook for defamation.
There is one other consideration. Dead celebrities in some, but not all, states, whose estates may still be reaping financial benefits from the use of their name and images could be a problem for you to write about. The right of publicity, as this is called, is unlikely to apply in your case. If you wanted to include Elvis Presley or Michael Jackson in your work, you might need to exercise some care. Even then, as long as you are not using their names in commercial endorsements, there is not a problem.
Last, your risk is further reduced if you are only writing about the articles (as opposed to copying them verbatim), fictionalizing the story, or changing name and place references to “protect the innocent.”
All in all, my informal opinion ( not personal legal advice) is that you may proceed without a likelihood of legal consequences. Read More
How far can I go in retelling a compelling story from a series of articles in a long-defunct newspaper?
Q: Thank you for the opportunity to ask a question. I really have no idea what I’m doing.
I have stumbled across a series of articles written in a long-defunct newspaper about the unusual experiences of a professional reporter. The articles were written in the 1920s, and involve the names of real people and companies/corporations of the time.
The story is compelling, and I would really like to retell it, but am unsure as to what I’m able to do with it. I obviously do not wish to commit an act of plagiarism, copyright infringement, or libel of any kind.
I would appreciate any guidance you might be willing to offer.
A: You have raised several interesting questions, and the answers will depend on exactly how you plan to use the articles.
First comes the question of whether the articles are in the public domain. If so you are free to use them without worrying about questions of copyright infringement. The copyrights on most, but not all of materials published in the United States before 1923 (up until the end of 1922) have lapsed, if they ever existed at all. Before the modern copyright law was enacted in 1976 and went into effect on January 1, 1978 publication without a copyright notice at all could plunge the work immediately into the public domain. Registered copyrights were initially protected for 28 years, after which they could be renewed for a second 28 year term. If they were not renewed, they lapsed into the public domain. If they were renewed copyright protection was extended for another 28 years. For works published in 1923 or later there is a complicated set of issues to be evaluated. The Cornell University copyright information website has a great chart that can help you evaluate the copyright status of a work at http://copyright.cornell.edu/resources/publicdomain.cfm. (see links to the right). You can also get excellent information on many copyright subjects from the Copyright Office itself. You can find a pdf about duration of copyright at: http://www.copyright.gov/circs/circ15a.pdf. I’d like to add that the Copyright office is a terrific resource for copyright questions in general. There is a link to the Copyright Office website at the right.
Even if you can’t determine that the newspaper articles are in the public domain, the risk of a defunct newspaper coming out of the woodwork in 2016 is low. There are not many clean yes or no answers to copyright questions, but it can help to think in terms of a risk/benefit analysis in combination with your own tolerance for risk along with such factors as the vulnerability of your assets, insurance coverage, business entity status etc. This is merely an informed guess and NOT personal legal advice, but it seems to me that your risk of liability for copyright infringement falls in a range from extremely low to non-existent.
But (and isn’t there always a but?), you referred to plagiarism and that’s not the same as infringement. Plagiarism is an academic concept. Direct copying of someone else’s work without attribution to the source is considered unethical in academic writing and journalism even when it’s not infringement. It’s a subtle distinction, but an important one to be aware of. Acknowledging your sources (in notes, the acknowledgement section of a book, or directly in the text) helps you avoid plagiarism and keep your authorship ethical as well as legal.
You also mentioned libel (written defamation). Again, a risk/benefit analysis is helpful here. In this particular case, my educated guess is that most, if not all, of the people mentioned in the articles are dead. If so, your words can’t injure them legally and you’re probably off the hook.
Last, your risk is further reduced if you are only writing about the articles (as opposed to copying them verbatim), fictionalizing the story, or changing name and place references to “protect the innocent.” Read More
Who owns the copyright in this teacher's book?
Q: I am a third grade teacher who prepares many creative lessons for my students. I decided to write and self-publish a book about how to be a great teacher. I was telling some of the other teachers in the faculty room and word of my plans reached the principal. He stopped by my classroom and told me that the school district will own the copyright in my book because they are my employer. I am stunned. I have already invested a lot of money, time, and effort and I want to go ahead. But I am afraid that the school district will sue me if I go ahead. Can they?
A: My immediate though about what you should say to this misguided principal is not repeatable. He is wrong, wrong, wrong! I am outraged on your behalf. Sadly, many educators are ignorant about copyright. Unless writing books about teaching is part of your job description you are the owner of the copyright in your book from the moment you have “fixed” it in a “tangible medium of expression.”
Your principal is probably misunderstanding the work made for hire (WMFH) doctrine that creates two exceptions under United States copyright law for initial copyright ownership by the author of a work. The first WMFH exception to the rule that the author is the automatic copyright owner for works she creates is when an employee is expected to write as part of her job description.
Section 101 (1) of the U.S. Copyright Act (Title 17 or the United States Code) defines work made for hire as “a work prepared by an employee within the scope of his or her employment.” In the case where an employee writes as part of her job, the employer is considered to be the legal author and copyright owner. You were hired to teach, not to write books. Therefore, you are the owner of the copyright in your book about teaching.
You have also asked if the school district can sue you if you go ahead and publish your book. Unfortunately, it’s entirely possible for a misguided individual or organization to file a frivolous lawsuit. However, I doubt if your local school board’s legal counsel would agree to file. In your case, the risk of facing a lawsuit over this misinformation is low. Please don’t be discouraged by this principal’s ignorance of copyright law. Good luck with your book!
You might need that luck if you should decide to submit your book to a textbook publisher, however.That’s because of the the second definition of WMFH in the Copyright Act, “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. 17 U.S.C. § 101 (2).
Many academic and textbook publishers do try to obtain the copyright in authors’ works in their contracts. As a writer, you don’t want to sign a publishing contract with WMFH language unless you are truly willing to give up your copyright. There are a few legitimate reasons for publishers to own the copyrights, but, in my opinion, those reasons are few and far between and writers should avoid WMFH contracts whenever possible. Read More
How do I send a DMCA takedown notice?
Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I am of-counsel to the Law Office of Stephanie Adams, PLLC. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship. Questions may be sent through the contact page on this site.
Q: I found a website that has posted actual copies of my articles without permission. I have heard about something called "Notice and Takedown." How do I do that?
A: The notice and takedown provisions of the DMCA offer copyright owners a way to protect their works online while limiting the liability of ISPs for copyright infringement. Notice and takedown requires you to police the Internet and search for infringing materials. If infringing material is found, you must submit a notification, under penalty of perjury, to the ISP's designated agent. The notification must:
• bear your physical or electronic signature, or that of your agent;
• identify the work that you claim has been infringed, or, if more than one work is infringed on a single web site, a representative list of the works at that site;
• identify the infringing material that is to be removed, and include any information necessary so the ISP can locate the material;
• provide your address, telephone number, and, if available, an email address, so that the ISP can contact you;
• state that you have a good faith belief that use of the material on the web site has not been authorized by you, your agent, or the law; and
• state that the information in the notification is accurate, and under penalty of perjury, that you are the owner of the copyright that has been infringed or that your agent who is filing the notification is authorized to act on your behalf.
If you fail to comply substantially with the statutory requirements, the notification will not be considered by a court in determining whether the ISP has the requisite level of knowledge to support a liability claim.
Upon receiving your notification, the ISP must promptly make a good faith effort to remove the infringing material from its network or disable access to the material. This is called “takedown.” The ISP will not be liable for any action based on the fact that the material was removed. The timely removal or blocking of the infringing material also means that the ISP will not be liable for monetary damages of you file an infringement action in court.
After removing the infringing material, the ISP must take reasonable steps to promptly notify the subscriber that the material has been removed or blocked. If the subscriber responds with a counter notification, the ISP must provide you with a copy of that response and notify you that it will replace the removed material or cease disabling access to it in 10 business days. Unless you notify the ISP’s designated agent that you have filed an action seeking a court order to restrain the subscriber from infringing your work on the ISP’s system or network, the ISP must replace the material within 10 to 14 business days.
The DCMA provides the subscriber to respond to the notice and takedown by issuing a counter notification. The counter notification must:
• bear the physical or electronic signature of the subscriber;
• identify the material that has been removed or blocked and the location at which the material appeared before it was taken down;
• state under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification;
• provide the subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is in another country, for any judicial district in which the ISP may be found, and that the subscriber will accept service of process from the you or your designated agent.
The DCMA imposes damages, including costs and attorney fees, incurred by the alleged infringer, the copyright owner, or the ISP against any party who knowingly misrepresents material facts in either the notification or the counter notification. Read More
How can I fire my agent?
Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I am of-counsel to the Law Office of Stephanie Adams, PLLC. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship. Questions may be sent through the contact page on this site.
Q: My agent sold my first two books, which are still selling well, but he hasn’t really done anything with my two most recent proposals. I get the feeling he has bigger fish to fry and that my books aren’t the blockbuster types he would prefer. I’ve decided that another agent might be better for me, but I’m not sure how to proceed from here, from a legal perspective. What do you suggest?
A: You should start with a clear understanding of the legal relationship between you and your present agent. Do you have a written agency agreement or a handshake deal? If you have a written agreement, it probably spells out how the relationship may be ended. For example, either party might be able to terminate upon written notice to the other. The contract might spell out the timing of such notice and, perhaps, specifics such as a requirement to use registered mail. So examine the contract and follow the specified procedure exactly. This is important even if your agent says it’s not necessary. It’s very important to be precise when dissolving a contractual relationship. This doesn’t mean you can’t talk to your agent ahead of time to reach an informal understanding. It just means that you should follow up by dotting all the “i”s and crossing all the “t”s. If you have no written agreement, you should plan to give your agent reasonable notice that you’re making a change and you should do so in writing so there can be no misunderstanding.
Be aware that the change you’re making is only for future deals. You will remain obligated to your first agent for any commissions and expenses related to your first two books. He will also probably continue to receive payments on your behalf and forward them to you after deducting what is owed to him. It may be possible to negotiate a different arrangement, but, if you do, be sure to get a written acknowledgement of the new terms from him. Since your books still generate income, the first agent will probably want to remain agent of record. In the future, though, when the income thins out, he might be agreeable to a change.
Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship. Read More
Is it legal to post a newspaper or magazine article of interest to membes of an online forum, listserv or other cyber discussion group?
Q: Is it OK to post a newspaper or magazine article of interest to writers on a listserv? This happened recently on a writers list I subscribe to. Some people said that it was all right to do so because, even though the article was protected by copyright, is permitted under the law as "fair use." Others said that writers should be especially respectful of copyrights. Someone posted the exact text of the fair use section of copyright law itself. Then there were arguments about the interpretation of the law. The debate got quite nasty as people called each other "pirates" and "copyright police." What's the correct interpretation of the fair use law on our listserv?
A: The short answer, in my opinion, is no, it's emphatically not fair use to post an entire article on line. Fair use is a widely misunderstood concept. Like the Bible, the text of a statute seems to allow people to read into it whatever supports their point of view. In our common law tradition, however, the statute is just a starting point. The law is also found in the court decisions interpreting the statute.
The case law about fair use clearly supports, in my opinion, the position that posting of full text material on the internet is almost never fair use. One of the cases where the photocopying of copyrighted material for educational purposes was held not to be fair was a case involving Kinkos, later upheld in the Michigan Documents case. In the listserv discussion, several members criticized the "copyright police" at their local FedEx/Kinkos copy shop. The reason Kinkos became such a vigilant enforcer of copyright law is because the company was a big loser in the case bearing its name -- the case that held academic coursepacks to be infringing. If the photocopying of limited numbers of articles and book chapters, even though for educational purposes, has been held to be infringement, I can't imagine that any distribution via the internet would be found fair, considering the sheer number of copies internet distribution makes possible.
The Kinkos and Michigan Documents cases are distinguished from the 2nd Circuit ruling in the Authors Guild v. Google case because, even though Google has scanned complete books, it only posts "snippets." While the posting of snippets was held to be fair use, the Authors Guild has announced that it intends a further appeal.
The thing that I found especially distressing about the listserv discussion of this issue was the numerous and vociferous complaints about the "copyright police" among a group of professional writers, writers on whose behalf author organizations devote a great deal of effort in promoting understanding and enforcement of copyright laws. If you want to share an article with members of your group, you can always post a link, but please respect the copyrights of fellow writers.
Ask Author Law is a Q&A blog about legal issues for writers. I am a practicing attorney, freelance writer, and publishing consultant. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. Readers are reminded that this information is for general information only and that any specific legal problems should be discussed with an attorney. Questions are presented anonymously, with the asker’s privacy protected. Some are composites based on issues I have been asked about in the past. Some were asked at workshops and conferences where I have presented. If you have a question for this blog, send it to authorlaw@yahoo.com. Your question may be edited or combined with others. I cannot answer questions privately and not all questions can be used, but I’ll try to give full coverage to the matters that writers care about most. Read More
Am I an employee? My work-made-for-hire contract is not consistent.
Ask Author Law is a Q&A blog about legal issues for authors. I am a practicing attorney, freelance writer, and publishing consultant. I am of-counsel to the Law Office of Stephanie Adams, PLLC. I focus my law practice on the representation of authors, often consulting with or serving as co-counsel to other attorneys on publishing cases. This information is for general purposes only and is not legal advice. Asking a question or reading an answer does not create an attorney-client relationship. Questions may be sent through the contact page on this site.
Q: I’m a full time freelancer who writes for many magazines and newspapers. I’ve just been offered a contract to write one article a month for a web site. It has a clause that says I am to be an employee and that everything I write is to be considered a work made for hire. Another clause says that I am an independent contractor. So, if I sign, what will my employment status be?
A: I haven’t seen the entire contract, but it sounds like this web site is trying to insure that it will both own the copyright and avoid responsibility for tax withholding, social security and other such obligations of an employer. WMFH is a tricky concept with two meanings under copyright law. It sounds like the contract was patched together by someone confused about copyright but trying to avoid paying a lawyer.
Whenever a contract is internally inconsistent, it could be subject to interpretation by a court if a dispute arises. In this case, I suspect the court would decide that the “employee” language is less significant than the “independent contractor” language. You might suggest that the language be clarified. If it isn’t, however, I don’t see this as being a big problem for you as long as you understand that you are giving up copyright ownership and won’t be getting any employee benefits.
You should be sure to include all income you receive from this website on your taxes, regardless of whether it sends you an IRS Form 1099. The website could come to the attention of the IRS if it has freelancers writing for it exclusively. Companies sometimes try to designate employees as independent contractors in a mistaken effort to avoid the responsibility for payroll taxes and insurance. As long as you are a true freelancer writing for a variety of publications, the IRS is not likely to consider you as an employee.
If you have any doubts about this website and its inconsistent contract, you may want to think twice about taking this assignment. That said, the legal risk to you is slight. The website could face legal problems, but if you keep good records, continue to write for other publications, and declare all of your income, you should be OK. If working for this website becomes a substantial part of your workload or if you think you should be entitled to employee benefits you would be wise to consult a lawyer. Read More
A tongue-twisting contract term is bad for authors.
Q: What is a cross-collateralization clause? I’ve been told to watch out for this, but I don’t know what it is.
A: Cross-collateralization, sometimes referred to as bucket accounting, is not good for authors because it lets a publisher make deductions from the income of one work for sums owing on another work. Such sums can be charges for the cost of alterations, permission fees, fees for revisions, overpayments, or an unearned advance. The cross-collateralization clause is unfair because it gives the publisher de facto insurance against an unsuccessful project by permitting recovery from funds due to authors on other projects.
Here is how to spot these clauses, and what to do when you find them. First, a cross-collateralization clause is not likely to be labeled as such. It may be referred to as “Over Payments,” “Deduction of Sums Owing Under Other Contracts,” or “Joint Accounting.” Look for any language in the contract that authorizes the publisher to deduct money owed to the author for other works.
If the publisher refuses to delete the provision entirely try a compromise position: 1) that no deductions for sums owed under other contracts be made from an advance owed to the author, but rather, any deductions be made from the future income stream; 2) that unearned advances not count as sums owed to the publisher. Read More
Does my catchy title present a trademark problem?
Q: I'm writing a book with a catchy, appropriate title and just discovered that an organization in another state uses the exact same words as the name of their ongoing workshop. In their promo literature they have a tiny "sm" (service mark) next to their name. Am I out of luck? Does this mean I now have to come up with a new title or ask this organization to give me permission to use their workshop program name as the title of my book?
A: This is one of those questions to which the answer is a resounding “it depends.” There are many factors to consider as you decide what to do. The answer depends on whether those looking at the book would assume sponsorship by, endorsement of, or affiliation with the organization. You should ask yourself whether people buying your book might assume that you represent or support the organization and its point of view. If the answer is yes, then you should probably find another title or get the organization’s permission to use the title. Another possibility is to use the title with a disclaimer that says your book is not associated in any way with the organization.
If your book is going to receive nationwide distribution and the subject is similar to the subject of the organization’s workshop, there could very well be a potential problem of trademark infringement and you would probably be wise to change the title. If your book, however, covers a different topic from the organization’s workshop or the organization operates in only a small geographical area and isn’t widely known outside of its home turf, then you might not have a problem. In that case you would be wise to ask an attorney to have a trademark search performed. Such a search will identify whether the organization has taken steps to register its service mark at the federal level for workshops or services that might be similar to the topic of your book. If it has taken such steps, you’ll probably decide to change the title in order to avoid a potential trademark infringement problem.
A third factor to consider is how common and generic your proposed title is. If it’s distinctive and closely associated with the organization, you should probably not use it. If it’s based on a common phrase and accurately describes your book’s content, it’s less likely to be a problem. If you really want to use this title and you’re not confident about the potential implications, you might want to confer with a trademark attorney. Read More