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