Merry Christmas to All !

Time to take a short break from blogging for the holidays - and while I relocate my office.  Merry Christmas and Happy New Year to all.

Me, with Teddy, playing Santa for Great Pyrenees Rescue Group

Video Game Company Using Copyright to Control Product Exposure

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The world of video games and YouTube is giving rise to an interesting use, or abuse, of copyright, depending on which side of the gaming counsel you are sitting.

Start with the background.  Gamers have found an effective tool to getting through all the mazes and obstacles that video games can throw at them. The tool is YouTube.

Search the name of a video game on YouTube, and chances are you will find videos demonstrating how to play the game, and even how to overcome specific obstacles in the game.  Some particularly proficient gamers are even making money at this.

Some actually have licensing agreements from Sega and other game producing companies allowing them to do this.  But most of these games are operating from their basements (either literally or figuratively) and make little, if anything, from their endeavors.

Enter Sega.  The gaming giant is seeking to squash this, unless the gamers enter a licensing agreement with Sega.  Sega maintains that it has all right to the images, names and other aspect of its game, and that the use by these people posting on YouTube is a violation of the Digital Millennium Copyright Act (DMCA).

So off go the DMCA letters with their threats of fines, penalties, prison, etc.  And down come the videos, even though some maintain this is clearly fair use.

Sega may be entirely correct in protecting its rights. But this is the type of action that is causing some to wonder if copyright in its present form has outlived its usefulness.  However we are likely never to know.  Some basement gamer would have to challenge Sega in Court - and that definitely is NOT a game.  The game would risk the onerous DMCA penalties, and would have to be willing and able to ante up the substantial money needed to fight Sega and its army of lawyers in Federal Court.

So in the end, it may be just another example of the Golden Rule:  He who has the gold, makes the rules.


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My Newest Book Now Available on Amazon

Cover for my latest book.  Art work is my photo

Visiting Hours and Other Stories from the Heart

My second book, a collection of short stories, is now available in e-book format on Amazon.  The book will be available in paperback through Amazon later this week.

Visiting Hours is a collection of five short stories and two previously published articles.  The stories are rooted in the heartland - and in the heart. The title story won the Manny Award for Best Short Fiction at the 2011 Midwest Writers Workshop. Both the original longer version and the award-winning shorter version are included.

 Click HERE to go to Visiting Hours and Other Stories from the Heart on Amazon.

These five unrelated stories that are bound together by the thread of simple events the impact us at every stage of our lives.  The lead characters are a young boy growing up in the 1950's, a 14-year-old girl in post-WWII Tennessee, a businessman in mid-career, a mid-50s Midwestern farm wife at the turn of the century, and an elderly man facing a final life crisis.

For those who have read my novel Stars Fall, this book is as different as one can imagine.  The writing style is more conversational, the pace is easy, and the stories are more likely to bring a tear than take you to the edge of your seat.  (Click HERE for link to Stars Fall on Amazon)

But if you like thrills and suspense in your reading, Stars Fall is still available through Amazon. Its currently available in e-book format. A technical glitch made the paperback version temporarily unavailable. But the paperback will again be available by the end of the week.

Here's a brief summary of the stories included in Visiting Hours and Other Stories from the Heart.

Visiting Hours: Sarah is a turn-of-the-century farm wife. Her children grown, she feels the melancholy of aging and isolation, exacerbated by the death of an elderly aunt. Her brash cousin Maude insists that Sarah come with her for a visit. The tragic death of a young Negro girl and an old wives' tale prompts Maude to insist that the two cousins go to the calling for the dead girl. But what awaits them will change both their lives.

Christmas 1948: Life is tough in the hills and hollers of post WWII Tennessee. It is particularly so for Cassie Mae. Her father still deals with the emotional scars of serving in the Pacific during WWII. Her mother has all she can do to keep the family clothed and fed. So at age 14, Cassie Mae tries to make Christmas special for her five younger brothers and sisters.

Tending Roses: Facing failed relationships, a stalled career, and an estranged teenage daughter, a man makes an obligatory visit to see his aging aunt. As they walk through the aunt's carefully tended rose garden, he learns something of life and himself.

Rabbit for Breakfast: It's the first weekend of rabbit season in the mid-1950s. A young boy and his father go to relative's house for a breakfast of fried rabbit and homemade biscuits. The boy deals with a loving aunt, a quirky uncle and a distant father.

Somewhere In Time: A man faces the cruel truth of being told that he has Alzheimer’s.

Riding the Rails: An article exploring the soul-soothing qualities of traveling by train.

Sunday Morning Coming Down in New Orleans: Reflections on a trip to New Orleans seven months after Hurricane Katrina. Despite all the damage done, the article finds that the soul of New Orleans is still there, unchanged.

Copyright and Contract: Really Small Print Can Have Really BIG Consequences

*Royalty-free image via Pin Point:photo credit below

For the past two weeks I've gone over issues relating to copyright ownership, including work for hire, the distinction between being an employee and an independent contractor, and how all of this impacts ownership of copyright.

It's pretty complicated legal stuff.  Others would use a different "s" word.

The plain fact is that most issues regarding copyright ownership can and are resolved terms by the terms a contract.

Whether it's called a Release, or Consent, or Agreement, or Terms of Use, Submission Guidelines, or Waiver, or Authorization, or something else, a document that allows someone else to publish your work, or a derivative of your work, is a contract. And the terms of that contract have consequences.

If you are signing one of these,  or if you are making an online submission under Terms of Use or Submission Guidelines, you are doing something that gives someone else a part of your bundle of intellectual property rights that you possess in your own work.  In other words, you are turning over some (or possibly all) of your rights you have in your own work product.

**Royalty-free image via Pin Point: photo credit below

So pay attention to the fine print in any contract. This includes those pesky Terms and Conditions  you click agreement to on so many websites.

For example, when you join Facebook, that "click" grants a license that any content you post as "public"  can be copied and re-posted by any other Facebook user.  This includes your writings and your photos.

Those small print words mean something.  And they can make a substantial difference in your rights.

Can you negotiate these terms?  Well yes -- and no.  You have the right to negotiate any terms in an agreement.  But in many cases (Facebook for example), it is a take-it-or-leave-it proposition.  If you don't like the terms, don't sign or make the submission. 

But sometimes terms are negotiable.  That's where a talented literary agent can become your best friend.  Movie rights.  Foreign rights.  E-book rights. Derivative rights.  Merchandising rights. They are all part of the bundle of intellectual property rights you possess when you create a work.  An experienced lawyer can help you understand those legal rights.  A good agent can help you negotiate them as part of a deal.

So read those contracts closely.  Talk with your agent, if you have one. Consult with an attorney who knows something about copyright and publishing.

Above all, make sure you understand what rights you are signing over to someone else when you sign or click to create a contract.


*photo credit: <a href="http://www.flickr.com/photos/hi-phi/425148111/">[phil h]</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-nd/2.0/">cc</a>

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Writers: Are You An Employee or An Independent Contractor?

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So we've established that under general principles, the copyright for a work for hire belongs to the employer, but if the work is done by an independent contractor, even under explicit directions, the copyright belongs to the artist.

But what if you are hired for a specific project?  How does the law decide who is an employee and who is an independent contractor?

A good starting point is the 20-point test established by the IRS in 1987 for deciding who is an employee and who is an independent contractor for payroll purposes.  While this is not binding on the issue of copyright ownership, its a quick referral list that is helpful.  But in reviewing this list, you must remember that the U.S. Supreme Court, courts established that ultimate classification depends upon general principles of common law, a rather amorphous standard that defies precision.

Here's the IRS's 20-point test in what I hope is more understandable language than the regulation.

1. Instructions: A person who is required to comply with specific instructions about the time, place and manner of work is usually considered an employee.

2. Training: An employee usually receives training; an independent contractor does not usual receive training from the purchaser of the services.

3. Integration: The greater the work fits into the purchasers overall business, the greater chance that an employer-employee relationship exists. (A sales manager is an employee, the interior decorator who furnishes the office probably is not.)

4. Services Rendered Personally: If the services must be rendered personally, it is usually an employment relationship (hourly employee can't send in Uncle Bob to do his job for the day).  However, with artists this is less instructive, as a publisher who contracts with Michael Connelly to do a story does not expect it to be written by someone else).

5. Hiring, Supervising, and Paying Assistants:  If the purchaser is also paying for assistants and supervising the work, this is a strong indication of an employment relationship

6. Continuing Relationship:  A continuing relationship is generally one of employer-employee. Independent contractors generally work on an assignment by assignment basis.

7. Set Hours of Work: If the purchaser sets your hours of work, it is a strong indication you are an employee

8. Full Time Required: If you must devote full time to the business of the employer, it is highly likely you are an employee

9. Doing Work on the Employer's Premises: Use of office space, telephone, stenographic service or the use of heavy equipment usually indicates an employer-employee relationship.

10. Order or Sequence Set: If you must perform work in an order established by the purchaser, it is likely that you are an employee.

11. Oral or Written Reports: Continuous reporting indicates, but is not conclusive of an employer-employee relationship.

12. Payment by Hour, Week, or Month: Regular periodic paychecks indicate an employer-employee relationship.  Independent contractors get paid in a lump sum or in agreed installments on a per project basis.

13. Payment of Business and/or Travel Expenses: If the employer pays the person for business and/or traveling expenses, the person is ordinarily an employee. On the other hand, Phillip Marlow and Sam Spade always charged for expenses, so it's not conclusive.

14. Furnishing of Tools, Machinery and Materials: If the person paying is providing you with your tools and materials, you are probably an employee. Newspapers provide computers;  free-lance writers provide their own computers.

15. Significant Investment: If you invested significant funds of your own in your business, your are probably an independent contractor.

16. Working for More Than One Firm: If you work for a number of companies at the same time you are probably an independent contractor.

17. Realization of Profits or Losses: Can you make a profit or suffer a loss?  If so, you are likely an independent contractor.

18. Making Services Available to the General Public:  If anyone with the money can hire you to do work for them, you are probably an independent contractor.

19. Right to Hire and Fire:  If the employer has the right to hire and fire, it is likely an employer-employee relationship.

20. Right to Terminate: If the purchaser can terminate the relationship at any time without incurring a liability, it is likely an employer-employee relationship. On the other hand, if termination gives rise to potential liability for breach of contract, it is likely an independent contractor relationship

The best way to determine copyright ownership is by written contract.  That's the topic for the next post.


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Free Lance Writers and Copyright Ownership: Is It Work for Hire?

So if you're a regular employee, and you create a something, it is a work for hire and  the copyright belongs to your employer. But what if you are a free-lance writer, web designer or artist, who is hired for a specific project? 

Royalty free image - see photo credit below

For these situations, the ownership of copyright often is  covered by the terms of the contract between the parties  That "small print" really does mean something.  But that's a subject for a later post.

What if there is no contract?

The leading case addressing ownership of copyright in these circumstances is the United States Supreme Court decision in Community for Non-Violence v. Reid (1989).  That case involved a sculpture commissioned by the plaintiff, a community organization devoted to assisting the homeless (hereinafter "Community").  Community contracted with Reid to prepare a sculpture, specifying various details including that it was to be a nativity scene using homeless people as the figures, providing the language to be used in the sculpture, and even providing persons as models for the figures.

As is so often the case in these type of disputes, the parties did not sign a written contract and did not discuss ownership of the copyright. Community claimed that it had specified the details of the work, and therefore the scupture was a "work for hire" under the Copyright Act and that Community owned the copyright.  Reid asserted that he was not an employee, but rather an independent contractor, and that he maintained ownership of the copyright.

Writing for a unanimous Supreme Court, Justice Thurgood Marshall held that the artist was an independent contractor, and therefore the sculpture was not a work for hire.

In reaching the decision, the Court pointed out that the Copyright Act does not define the term employer.  Consequently, the Court turned to common law, and held that the determination of who was an employee would turn on general common law concepts of agency.  The court specifically noted that individual state laws of agency would not apply as this was an issue of federal law. Nor is this determination governed by the test used by the IRS to determine whether a person is an employee or an independent contract.

The short version of the ruling is that even if the person commissioning an independent contract provides all of the details, the copyright remains with the person creating the work, unless there is a contract to the contrary.

So what are these concepts of agency that determine whether your work is your own or one for hire?   That's a topic for the next post.


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Work for Hire: Employees and Copyright Ownership

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Under the US Copyright Act, the creator of the work does not own the copyright when it is created by an employee in the scope of his/her employment, or when it is a commissioned work specially ordered for use in a bigger collective work. 17 U.S.C § 101.

This means that if the creator of a work is an hourly or salaried employee drawing a regular paycheck, and the work is created in the course of  his/her employment, the the work -- an article, a photo, software, music - is a work for hire and the copyright belongs to the employer.

Common examples include staff photographers, newspaper reporters, newsletter editors, software designers,  and music studio engineers.

But what if you are a newspaper reporter (are there any of those left?) working on a novel in your evening hours?  Or a software designer working through the night to create the next great gaming experience?

The answer may depend both on the Copyright statute and any applicable employment contract.

For the reporter writing a novel, the answer is clear.  The reporter is not acting within the course and scope of his employment when writing a novel (although an argument could be made if he/she was employed by certain supermarket tabloids).  The novel is written off the clock and is not something done for the newspaper.

The software designer may be in a different situation, depending on circumstances.  If the designer works during the day on the latest accounting or business productivity software, his evening work on gaming is probably outside the scope of his employment. On the other hand, if the designer works for a gaming system, his work even off the clock could be considered work for hire.  This is particularly true where the  designer has a contract specifying that he owes the company his complete effort, and that all work product belongs to the company.

It is a fact sensitive matter that defies a simple black and white answer for all cases.

But what about a free-lance writer or artist hired for a specific project?  That became the topic of a leading United States Supreme Court decision - and the topic of my next post.


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When You Don't Own Your Own Writing: Work for Hire and Copyright

Royalty free image: poto credit below

For the author pounding out a novel, biography, or short story in his basement, hoping to eventually find an agent or a publisher, ownership of the copyright is not an issue.  The author controls the rights until he/she signs a contract transferring those rights to a publisher.

But what happens if the writer or photographer is employed by someone?  Who owns the copyright?

In most cases, the answer is simple. If a work is created by an employee, that person's employer owns the copyright. This is called "work for hire."

Here's the statutory definition from the U.S. Copyright Act, 17 U.S.C § 101:

"(1) a work prepared by an employee within the scope of his or her employment; or (2) 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."

If the creative work is a "work for hire,"  the person who actually wrote the article, took the photograph, or drew the artwork, does not own or have any intellectual property interest in the product which he or she created. Rather, those rights reside with the employer who is paying the employee a salary for his work, including his work product.

Most common examples:

• Newspaper reporter does not own the copyright in his articles.
• Newspaper photographer does not own the right to photos he takes.
• Artists employed by advertising agency does not own copyright in his or her drawings.
• Software designer working for gaming company does not own property interest in the new game he or she designs
• A web designer employed by Internet company does not have copyright in his website designs.  

In each of the above situations, the copyright interest belongs solely and exclusively to the employer. This means that the employee has no right  license, sell his/her own creative product. The employee has not right to control its use, and in fact has no right to use his/her own creative works without the permission of the copyright holder.

An example: certain writers have recently gotten in trouble for self-plagiarism. But ethics aside, plagiarism itself does not violate the law.  What does violate the law is copying your own prior writing when someone else - like a former employer - owns the copyright.

But who is an "employee"?  That's the topic for the next post.


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Facebook, UCC, Copyright and those Damned Notices Everybody is Posting

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I'm sure you've seen them.  Seems like half the people on Facebook are posting this "Notice" that everything they post on Facebook is "privileged" and that it may not be copied for commercial purposes.*  Then smiting all who may violate this edict with Section 1-308 of the Uniform Commercial Code.  The avowed purpose is to keep Facebook, since it is now a publicly trade corporation, from taking ownership of all your photos to do with as they wish.

So here's the truth.  It's all bullshit.

Sorry to be so blunt, but I've seen so many people - including some lawyers - posting this useless drivel that it has me annoyed.  Even more annoying is that people think this is the way the law works.  You post some sort of technical disclaimer that nobody understands, citing statutes that you don't know anything about, and it has some magic qualities.

That's NOT how the law works, folks.

So let's get the facts out there:

1.  In order to use Facebook, you have to agree to the terms of use and policies of Facebook.  You cannot alter the terms of the Facebook agreement by posting some type of unilateral notice.  You can't do that with any contract, which is exactly what your clicking on that agreement in order to use Facebook created.

2.  Facebook does NOT own your content.  But depending upon your privacy and sharing settings, by clicking the little button agreeing to its terms, you agree to  "a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook (IP License)."  In other words, unless your privacy setting prevent it, anything you post on Facebook is fair game for others to share on Facebook.

2.  Your options with Facebook are:  (1) Don't agree and don't sign up to use it (2) Sign up then participate in Facebook's Site Governance in an effort to persuade Facebook to change its policies; or (3) Quit using Facebook.   And again NO!  You can not unilaterally change the terms of the agreement by some post on your wall.

3.  No, Section 1-308 of the Uniform Commercial Code does NOT allow you to post a notice and avoid the impact of the Facebook Agreement, or any other contract.  The UCC, which is adopted with variations by every state, governs commercial transactions. It is one of the more complex things in the law to fully understand.  It takes a full semester class in law school to just get the basics. 

So  in short - you are not preserving copyright in your works by publishing this inane "Notice."  You are not changing the terms and policies of your agreement with Facebook.

Look like you know what you're doing.  Don't post that stupid insipid Notice.


 *Here's an example of the inane posting that you will see:

For those of you who do not understand the reasoning behind this posting, Facebook is now a publicly traded entity. Unless you state otherwise, anyone can infringe on your right to privacy once you post to this site. It is recommended that you and other members post a similar notice as this, or you may copy and paste this version. If you do not post such a statement once, then you are indirectly...allowing public use of items such as your photos and the information contained in your status updates.
PRIVACY NOTICE: Warning - any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States Federal Government also using or monitoring/using this website or any of its associated websites, you do NOT have my permission to utilize any of my profile information nor any of the content contained herein including, but not limited to my photos, and/or the comments made about my photos or any other "picture" art posted on my profile.
You are hereby notified that you are strictly prohibited from disclosing, copying, distributing, disseminating, or taking any other action against me with regard to this profile and the contents herein. The foregoing prohibitions also apply to your employee, agent, student or any personnel under your direction or control.
The contents of this profile are private and legally privileged and confidential information, and the violation of my personal privacy is punishable by law. UCC 1-103 1-308 ALL RIGHTS RESERVED WITHOUT PREJUDICE

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Oatmeal vs. Oatmeal: Mushy Trademark Fight Heads to Court

Mmmm . . . Oatmeal

The Oatmeal has been sued again.  This time by Oatmeal Studios.

When I was growing up, oatmeal was that warm, stick-to-your-ribs breakfast that my mother served just before I went out on a cold day.  It kept you warm as you walked to school, and kept you from getting hungry on those morning playing in the snow.

No more.

Now its Oatmeal Studios vs. The Oatmeal in a battle over trademarks and marketing of greeting cards.

The Oatmeal, otherwise known as Matthew Inman, is a quirky artist - for some, this generation's Gary Larson.  He rose to some notoriety with a 2011 lawsuit against humor aggregator Funky Junk, whose users posted Inman's cartoons to the Funky Junk website without his permission.

The dispute garnered attention on the internet when Inman ranted against Funky Junk on his blog, then against Funky Junk's lawyer, including a cartoon of the lawyer's mother  "in flagrante delicto" with a Kodiak bear. Threats of defamation suits flew, and the matter eventually was resolved.

With that dispute now behind him, The Oatmeal launched into a venture of greeting cards, teaming up with Papyrus, one of the nation's largest producers of greeting cards.

But alas, there was already an Oatmeal Studios, a small New England company that has been marketing "Spencer gift type" greeting cards for 35 years. 

Oatmeal Studios claims that it markets to the same people that the new Oatmeal by Papyrus will target, and that there is a substantial risk of name confusion and delusion of its intellectual property rights.

The lawsuit was filed in late November in the United States District Court in Massachusetts. 

All in all, it seems a legal mush.  Maybe some brown sugar and cinnamon will make all seem a little more palatable.

Is Identity of Anonymous Poster Protected From Disclosure? Indiana Appellate Court Issues Stay, Sets Hearing For Tuesday

The Indiana Court of Appeals has stayed a trial court order that the Indianapolis Star disclose information that would lead to the identity of anonymous posters in its online comments.  The Court has set a hearing on the issue for Tuesday, November 27.

The hearing can be viewed live online at www.courts.in.gov.

The stay and hearing are only the latest events in a long history arising out of comments made in the case of Miller v. Junior Achievement, et al.   Among the "et al" are the Indianapolis Star, Indianapolis Business Journal, and an unknown person using posting on the Star's website as "DownWithTheColts."

 (Note: if this poster is identified and the case goes to trial, his moniker will make for some interesting voir dire examination of the jury pool - half of whom may show up in Colts gear.)

At the center of the dispute are assertions made by “DownWithTheColts,” Jeffrey Miller, former Junior Achievement president, and his wife were responsible for missing Junior Achievement funds that money “can be found in their (the Millers) bank accounts.”

Marion County (Indianapolis) Superior Court Judge J.K. Reid ordered the Star to disclose the information requested by the plaintiffs (such as IP Address) which would likely lead to the identity of the person making the comment.  Last spring, in a 3-0 33-page opinion authored by long-time appellate Judge Nancy Vaidik, the Indiana Court of Appeals rejected that anonymous posters qualify for protection under Indiana's Shield Law.  However, the Court held that both the U.S. and Indiana Constitutions required a balancing test between the benefits of allowing anonymous speech and the harm from defamatory speech, which is not protected.  The Court of Appeals remanded the case for the trial court to consider that balancing test.

On remand, the trial court again ordered disclosure of the information about the anonymous poster.  The information was to be disclosed last week, but the Indiana  Court of Appeals issued a stay and set the hearing.

Indiana has a history of being very strongly supportive of protection to journalism and free speech.  It is only three states which require a showing of constitutional malice for matters involving private citizens if they become involved in matters of public interest.

It should be a fascinating argument to watch, and an interesting decision that may have implications in the world of electronic media far beyond the present case.

Happy Thanksgiving

Have a happy Thanksgiving.  I'm taking a break from the blog for Thanksgiving holiday.    I want to express a special thanks to those who have been reading and sharing my posts.  And if you have a chance, drop me a note and let me know what you think of the blog, plus any suggestions for future topics.

See you with new posts next week.  I'm starting off with a post about the case now before the Indiana Supreme Court on anonymity and internet posts.

In the interim, check out some of the older posts -- and keep writing.

--Stephen Terrell

Fair or Foul? James Patterson, Robert Parker and Authors In Name Only

Plagiarism is not just copying, but fraudulent copying that enhances of value of a creative work by false representation. 

That's one view expressed by Judge Richard Posner, legal scholar, prolific author, and long-time judge on the United States 7th Circuit Court of of Appeals, in his excellent work A Little Book of Plagiarism (Pantheon 2007), pp. 43-48.

Concealment is at the heart of plagiarism," Posner writes: "The plagiarist does not play fair," Id. at 17

So what about the recent proliferation of "institutional" authors - that is, authors (or estates of authors) who lend their names to books which they did not write.  Are they "playing fair?"

I think not.

Posner keys in on Margaret Truman, the late daughter of President Harry Truman.  Her cozy mysteries set in Washington, D.C. (Murder at the National Cathedral, etc) have long been rumored to have been written by someone else.  Truman denied the assertion until her death.  Posner casts his lot with those who doubt that being a President's daughter is a qualification for a mystery writer.

No matter how good an impersonator, it's NOT Elvis

But more troubling to me is the proliferation of  James Patterson's books - seemingly a new one every month.  JAMES PATTERSON is spread in huge block letters across the cover.  Below, in relatively small type, is the name of a co-author.  Few doubt that the co-author actually wrote the book.

In fact I hope Patterson himself is not writing these books.  I've read two - okay, 1 1/2 - and they  are just hideous.   The second was so bad that I  broke my personal rule and did not finish it.

My opinion seems to be shared by many. An Amazon forum excoriates the quality of "co-written" Patterson books.  (Click here for the link to the Amazon forum)


It is even more evident with the recent Robert Parker books.  I absolutely love the Spencer books.  But Mr. Parker died in 2010.  His estate hired a writer Ace Atkins to continue the Spencer books and Michael Brandman to continue the Jesse Stone series. I've not read any of the new stuff, and both Atkins and Brandman are successful in their own right.  But they aren't Robert Parker.  The new books are being published with covers that in huge type tout them as ROBERT PARKER's, with the actual author in small type at the bottom of the cover. 

So who is hurt by this marketing?  According to Posner, its not the readers.  They get a book which is what they bargained for.

I disagree with Judge Posner on this point.  When you plunk down $25 for a James Patterson hardcover, that's often not what you are getting.  Had I spent my own money (instead of checking out the book from the library) for The 4th of July, I would have felt ripped off.  This was not a taut thriller with the same skill in plot development, tension, and rich characters that you find in Kiss the Girls and other works clearly written by Patterson.  Instead, it was soap-opera styled drivel with cardboard characters, irrational motivations and strained plot devices, set in the legal system of which the author clearly was ignorant.

Posner suggests, and I agree, that the real damage from this type of misrepresentation is to other authors.  Across the nation, thousands of authors are working hard, trying to get published, or if published, trying to get their works noticed.  They are the ones whose works are being shoved off publishers lists, being buried on back shelves,  and not being reviewed.  Meanwhile, "brands" such as Patterson and Parker are given front shelf space.

There are ways to fairly deal with this situation.  The James Bond books have continued on since shortly after Ian Fleming's death in 1964.  The most recent Bond book was written by noted thriller author Jeffrey Deaver, and Fleming's name does not even appear on the cover. Other post-Fleming Bond novels identify only the real author, or identify the author "writing as Ian Fleming", but all in print at least as large as Fleming's name.

The publishers of Patterson, Parker and others may not be dealing in misrepresentation, but its close.  And they certainly are not playing fair, either with the reading public or with other authors.

It's not quite plagiarism.  It's not quite fraud.  But from where I sit, its not quite legitimate either.

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The Past Isn't Dead - But It Is Copyrighted: Faulkner, Woody, Quotes & Fair Use

Faulkner's quote as part of Northrup Grumman ad.  Is it "fair use."

Can the use of a single well-known quote from a noted author constitute copyright infringement?

That is the issue in two copyright infringement lawsuits brought by the estate of one of America's greatest authors, William Faulkner.

On the other side in one dispute are Woody Allen and Sony Pictures for the 2011 film Midnight in Paris.  In the other suit, the defendant is Northrup Grumman Corp, (NGC) one of the nation's largest military contractors, and the Washington Post, which ran the NGC advertisement that is at issue.

At issue is the extent to which a single quote - even one that has fallen into the lexicon - can be the basis of a copyright infringement claim.

In general, the fair use doctrine permits use of short excerpts of copyrighted works even without the author's permission.  Most frequently this comes in the form of quotes in new works, scholarly works or parody.  Whether the use is for commercial purposes or not also plays into the balancing tests used by courts.  But to this point, courts have not created a black line demarcation in fair use between commercial and non-commercial use.

Midnight in Paris case:  At issue is a single misquote by Owen Wilson as the lead character in this Woodie Allen movie.

The premise of the movie is that while visiting Paris with his fiance, Wilson's character is transported nightly by a car into the 1920s where he meets numerous literary figures including Faulkner, Hemingway and F. Scott Fitzgerald.  At one point Wilson's character states: "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."

The actual quote is from Faulkner's 1950 book Requiem for a Nun.  "The past is never dead. It's not even the past."

The quote is perhaps the most known, and most repeated, of any from Faulkner works.

But few would think they have to get permission to use the single quote, or in this case an attributed misquote.  But Faulkner Literary Rights, LLC, the family-owned LLC that controls the rights to all of Faulkner's works, differs. 

Lee Caplin, who manages the literary estate, says its not a matter of money, but rather control over the literary work.  Capln maintains that use in a commercial project such as Midnight in Paris requires obtaining a license, even for use of the single quote.  Caplin points to Ron Howard who obtained a license for a Faulkner quote used in the initial episode of Modern Family

Sony maintains that inclusion of the quote was fair use and that the lawsuit is frivolous.  Some noted legal scholars have sided with Sony, calling the Faulkner claim "overreaching."  (See Huffington Post Report - click here)

An interesting note: the Estate did not attempt to sue for use of the name or purported likeness of Faulkner in the movie.  Generally the right to publicity for a person's likeness dies with the person.

Northrup Grumman case: This case presents a different aspect of fair use.  While the Faulkner Estate would have granted a license to Midnight in Paris, Caplin says the estate would not have granted a license to NGC for any price.

NGC ran a full page in ad in the Washington Post (see above) subtly touting by implication greater expenditures for defense.  In addition to showing the American flag, the ad featured a quote from a 1956 Faulkner essay:  “We must be free not because we claim freedom, but because we practice it.”

Faulkner's estate maintains that the quote is taken entirely out of context and used to support something which the Estate would not support at any price.  The quote came from a 1956 Faulkner essay which appeared in Harper's.  The subject was school desegregation and the 1954 Supreme Court decision in Brown v. Board of Education, not national defense.

The question in that case becomes not only one of commercial use, but also of controlling the message.

Undoubtedly seeking a home-court advantage, both lawsuits were filed in Federal Court in Oxford, Mississippi, Faulkner's hometown, where they remain pending. (Click here for report from Law.com).

SMT Note:  My own take is that the use of the quote in Midnight in Paris is fair use, even though used in a commercial project.  To hold otherwise would mean that every time one wants to use a quote in a play, movie or article, one would have to obtain a license.  That is far too narrow an interpretation of fair use.

The Northrup Grumman case presents a different - and much closer - question.  In Midnight in Paris, the quote was a single line used in an extended work. But NGC used the quote as a central feature of its ad, effectively making Faulkner's words the central message. 

The Northrup Grumman case strikes me as effectively stealing Faulkner's words as its message rather than a fair use of limited words as part of a much bigger work. 

Self-Plagiarism and Copyright

Last post I discussed my view that many of the shrill cries of self-plagiarism are misplaced.  But there are legal implications for writers copying their own works.

First and foremost is the concern with copyright.

When writers are slaving away in proverbial basements, pounding out insightful blog posts or that Great American Novel that has not yet seen the light of day, there is no concern about self-plagiarism.  Copy yourself all you want.

But for paid writers - magazine writers, columnists, published authors - the issue is quite different.

If you have done a work for hire, or you have entered into a contract to publish your work, you have likely given up much, or perhaps all of your copyright interests. 

As a general rule, when your work is published by someone else, or someone who paid you to produce it, it is no longer your own.  Legally, your right to copy those words  is no greater than a stranger who just happened upon them on the Internet.

This issue pops up with the self-plagiarism case of Jason Lehrer, the Wired and New Yorker columnist who was forced to resign after a plagiarism claim, on top of fabricated quotes in his latest book.  The initial paragraphs of Lehrer's initial column for the New Yorker was lifter verbatim from an op-ed piece he did months earlier for the Wall Street Journal.

Now one first has to question Lehrer's judgment.  It's not like people who read the New Yorker don't also read the Wall Street Journal.  And its not like he didn't have fans who would seek out his columns in whatever publications they appeared.

But that aside, Lehrer's real guilt was violating copyright.

So when an author takes a previous work and seeks to use it - whether using it as a starting place to revisit the same issues, modifying it based on new information, or refining it based upon further thought - the author also needs to consider:

1.  Do I still have the sole and exclusive copyright?

2.  If not, is what I am doing fair use or does it violate the copyright interest held by someone else?

3.  If it is likely in violation of the copyright, can I obtain permission from whoever holds the copyright?

There's No Plagiarism Like Self-Plagiarism

Royalty free image: photo credit below

Self-plagiarism his the news in a big way earlier this year.

Best-selling author and columist Jonah Lehrer "resigned" from his job at The New Yorker after it was revealed he had lifted his opening paragraph in his innaugural New Yorker column from his own op-ed article published a few months earlier in the Wall Street Journal.

This followed revelations that Lehrer has simply fabricated quotes allegedly from Bob Dylan for his latest book, Imagine, a biography of John Lennon.

Now making up quotes is one thing - but what about quoting yourself?  Recycling your own words and thought?  Is there anything wrong with that?  After all, when you see a noted speaker giving a speech, you know he or she has given that speech before. In campaigning they even have a name for it -- the "stump" speech.  The speech politicians used to travel around and give to crowds while standing on the stump of a tree.

Some in academia and certain journalism circles, and certainly among the preveyors of anti-plagiarism software and websites, seem to go into apoplexy about self-plagiarism.   Google and plagiarism-seeking software have resulted in a geometric escalation in cries of "You're plagiarizing yourself."

But does is self-plagiarism illegal?  Is it unethical?

My view tends toward that of Judge Richard Posner that a writer's repeating himself/herself seldom rises to a level to support an accusation of "self-plagiarism."  See Posner's excellent book, A Little Book of Plagiarism, pp. 40-44.

Posner cites the example of novelist Laurence Stearne who sent love letters to his mistress.  The problem - well one of the problems - was that his letters were copied verbatim from love letters he sent to his wife at an earlier (and apparently more copecetic) time.  Posner's response: "Tacky, but is it plagiarism?  Id. at 41-42.

Posner's response was "no."  He goes on to state:  "{R}eaders should realize that authors repeat themselves;  it is only wholesale and literal repetition that should disappoint."  Id. at 43

 
Utilizing one's own prior ideas and work, in general, is neither an ethical nor legal violation.  The cries of "self-plagiarism"  at every repeated phrase or paraphrased idea are off target.  And the number of assertions of self-plagiarism are excessive to a matter of magnitudes.

But self-plagiarism does exist.  And there are legal issues when writers start repeating themselves.  But that's the topic for my next post.



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Copyright, Twitter, the DMCA and Takedowns

Twitter is not a copyright free zone!

You can violate copyright on Twitter just as you can on your blog - or any place else.

This was made clear when Twitter announced that upon a complaint from a copyright holder, Twitter would take down tweets which were asserted to violate copyright. The policy is Twitter's effort to comply with the Digital Millennium Copyright Act (DMCA).

The policy was recently modified when Twitter sent out the following tweet:

"We now offer more #transparency in processing copyright reports by withholding Tweets, not removing. Learn more: https://support.twitter.com/articles/15795 . "

I guess this would be classified as a Twitter tweaked tweet. 

But there is no humor in the policy.  Twitter will take down the purported offending tweets.  The tweet will not simply disappear into the ether, though.  Rather, the tweet will be "withheld" with a notice appearing instead of the tweet.

The full policy and procedure of Twitter is set out in the Twitter Help Center.  It is rather detailed, but not filled with a bunch of legal jargon.

The real lesson is that even in this era of social media, retweets, reposts, sharing, and even copy and paste, copyright laws still apply, whether its a photo, an article, or a 140-character tweet. 

I would set out the entire policy here . . . but there's that copyright thing.  So instead, just CLICK HERE to go to the Twitter Help Center's Copyright policy.

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Well I'll be f%#$d ! Supreme Court Strikes Down "Fleeting Expletive" Rule

Holy s%*# !

 The U.S. Supreme Court in a rare unanimous opinion struck down hefty fines imposed by the FCC against ABC and Fox for "fleeting expletives."

The case, which has been bouncing between the FCC and the courts since 2004, evolved from three episodes:

1.  Nicole Richie dropped a couple of expletives on the live 2003 Billboard Music Award, stating: "Have you ever tried to get cowshit out of a Prada purse? It's not so fucking simple."

2.  Cher responded to her critics on a live music awards show by saying "Well fuck 'em."

3.  And then there was the image emblazoned on America's eyeballs and psyche -- pudgy middle-aged Dennis Franz showing his bare backside for 7 seconds on NYPD Blue.

The Court decided the case by an 8-0 vote, unusual in this day of divisive 5-4 decisions. New Justice Sonia Sotomayor did not participate since she served on the 2d Circuit Court of Appeals when it considered the same case.

The Court struck down the FCC's actions on a very limited basis. that is the failure of the FCC to give sufficient notice of what conduct was prohibited, and therefore the FCC fines violated due process.  But the Court passed on the "hot potato" issue of whether the FCC can regulate content at all without violating the First Amendment.

Of some interest, Justice Ruth Bader Ginsburg wrote a concurring opinion which stated that the First Amendment prohibited the FCC from regulating profanity.  This is the same position that Justice Clarence Thomas took in a concurring opinion in a previous appeal.

So fleeting expletives are safe - for now.  Makes you wonder what the f#*king acceptance speeches at the Grammys and Academy Awards will be like this year. Don't know about you, but  I'm gonna be watching those motherf*#@ers !


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Plagiarism Detection Tools

In times past, plagiarism was very difficult to detect.  But no more.

Plagiarism tools are just a mouse click away *

Now an Internet connection and the click of a mouse can detect the plagiarist in seconds.  And they are getting faster and more proficient every day.  And it is no longer a service restricted to those those with financial resources.  Many of the online services that detect plagiarism are free.

For eons, teachers and professors often suspected students of plagiarizing their work.  Sometimes the phrasing of papers in a class was just too similar, or the student who had difficulty determining subject from verb suddenly turned in a paper that sang with stylish prose.  But except for the student who simply copied from a book in the high school library, or tried to claim the words of Emily Bronte as her own, the teacher had a difficult time proving her suspicions.

The problem was exacerbated in the 1990s as services selling term papers over the Internet proliferated.  For $50, you could purchase an "A" paper from a university on the other side of the country, download it, print it off on your own computer - even adding a spelling mistake or two to allay suspicion.

But no more.

The past decade has seen the development of a myriad of plagiarism detection systems.  Whether it's protecting your own work, or making sure that the work submitted by others is truly original, these are useful tools and the bane of the lazy student.

How do the programs work?  They all have their differences, but essentially they create a huge database of student papers and other known works, as well as capabilities of searching online resources.  A student, teacher or publisher then submits the new material.  The computers run a check and determine if there are large segments of text that are copied exactly or nearly from all the text in the database.  The system then spits out a report on the likelihood of copying, and the source from which the copying may have occurred. 

Among the pay resources available:

Turnitin - an online service by iParadig used by many schools, colleges and universities

Attributor - for protecting authors and publishers from unauthorized use of content

Veriguide

PlagScan

Copyscape (for checking online use of your copyrighted material)


Among the free resources for plagiarism checking:

Plagium.com

Chimpsky - developed by the University of Waterloo

eTBlast - provided by Virginia Tech



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Graphic Books Offers Great Primer on Copyright and Fair Use

While doing

some recent research, I stumbled on a graphic book -- a comic book, if you like -- that is one of the best short primers I've found on the law of copyright and fair use.

Bound by Law: Tales from the Public Domain looks like a comic book, or maybe more accurately, a graphic novel.  But don't let its for fool you.  This is maybe the best short-hand treatment of the law of copyright and fair use that I've come across. Sit down with this paperback and 40 minutes later you will have a pretty good founda

tion on laws that are essential to writers and other creative artists.

The book is written and illustrated by Keith Aoki, James Boyle and Jennifer Jenkins, and was published by Duke University Press in 2008.  It features a foreward by Davis Guggenheim, Academy Award winning diretor of "An Inconvenient Truth," with a very insightful introduction by Cory Doctorow, award winning Sci-Fi writer & co-editor of Boing Boing website.  

Image copyright by non-commercial Creative commons  Attribution, non-commercial, shar-alike licence.

Plagiarism, Copyright and Fair Use: Plagiarism Detection Services Do Not Violate Copyright by Storing Student Papers

Photo credit: Creative Commons license: see below

Plagiarism detection systems that store student papers in the databases for comparison purposes do not violate the student's copyrights for those papers.

That's the ruling of the 4th Circuit Court of Appeals in a lawsuit by four students against iParadigms, the company that runs the Turnitin, the online plagiarism detection service used by many colleges and high schools.

The decision in A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630 (4th Cir. 2009) held that the storage of the papers was "fair use." by iParadigms.  The court noted that no one at iParadigms ever read the papers or utilized their content other than for comparison purposes. (Click here for the Fourth Circuit's opinion).

The court noted that "the copyright owner's monopoly ... is limited and subject to a list of statutory exceptions, including the exception for fair use provided in 17 U.S.C. § 107."  The Court further noted that "fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." 17 U.S.C. § 107."

Additionally, the Court pointed out that in addressing Fair Use, Congress set out a four-prong balancing test. The elements to be considered by the court in deciding if something is Fair Use are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantially of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

 The Court then analyzed each of these factors, and found the use by iParadigms was Fair Use and therefore did not violate the students' copyright for their papers.



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Random Penguin - Merger of Publishing Houses: Impact on Writers Uncertain

Two traditional publishing houses have merged in an effort to combat Amazon's domination of the e-book market, and with it the future of publishing.

License

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Random House and Penguin are merging to form Penguin Random House.  Click here for the NY Times report.  

The new publishing giant missed the opportunity for the obviously superior and more serendipitous name "Random Penguin,"  which could also have resulted in a GREAT logo. But I digress.

Penguin Random House will have about a 25 percent share of the printed book market in the United States, but the merger is undoubtedly driven by e-books.  The settlement of the recent anti-trust suit over e-book pricing has left Amazon with a huge advantage in the e-book market, which some expect will climb back to the 90 percent level it previously held.

How will all this impact writers?  Well for most of us trying to find a publisher, it will likely make things a bit more difficult.  For established writers, one wonders if the combined publishing house will jettison some of its mid-level authors.

The only thing that is sure is what Bob Dylan wrote nearly 50 years ago - the times they are a-changin'.

Handy Tool to Determine Copyright Status

Have a question about the copyright status of a particular work?  The internet provides two quick and easy references to give you a quick answer.

Illustration through Open Source Art, Royalty free license

Digital Copyright Slider is a nifty little online tool for giving you a quick idea about the applicable copyright status of any published work. The Digital Copyright Slider is a tool developed by the American Library Association, and available for sharing pursuant to a Creative Commons Copyright.

Click here to link to the site.  Then you just slide the cursor down the scale until you  hit the applicable type of work and date. 

This little tool does not provide a detailed legal anaysis of copyright for any particular work, but it does give you a quick at-a-glace, rule of thumb.

A second more detailed resource is the flowchart developed by Sunstein Intellectual Property Group.  At first glace, it is a little more complicated.  But it provides a more detailed anaysis which you might expect from a law firm website.  Click here to link to the flowchart. 

For researchers, writers and educators, they are both useful tools to have in your internet toolbox.

Fraud Is Essential Element of Plagiarism

Used Under Creative Commons license. See Credit below.

Fraud is one of the essential components that differentiates plagiarism from plain ol' copying.  That's the view expressed by Judge Richard Posner in his excellent book, The Little Book of Plagiarism (Pantheon 2007), which was discussed in my last post.

The common law elements of fraud are (1) a false statement of a material fact, (2) known to be untrue by the person making the statement, (3) intended to be relied upon (4) and which relied upon by a third party (5) to that person's detriment.

Posner maintains that copying becomes plagiarism when this element of fraud is satisfied.  In legal briefs and opinions, no one expects originality.  There is no reliance upon the statements being original nor detrimental reliance.

The same is true of text books.  Originality is not expected by the reader or by other authors.  In fact, most texts are the result of institutional corporate authors.  The entire point of text books is to accumulate the stated wisdom of others, not blaze new ground.   Consequently, unless one is wholesale copying from the work of someone else, there is no fraudulent element to some copying and therefore no plagiarism.

But for dissertations, student papers and other academic research and writing, originality is expected.  Copying of the work of others does constitute a misrepresentation which is relied upon.  Universities, professors, even high school teachers, suffer to their detriment as they try to award grades.  But even more so, fellow students suffer.

The same is true in novels that are copied from others.  But to Judge Posner, it is not the reader who suffers the detriment.  Rather it is the author whose work is copied and the competing authors who must try to sell their original books in the same marketplace.

Judge Posner also has some interesting ideas on those who use the names of prominent people or authors to sell their books, such as the rumors about Margaret Truman.  In a later post, I'll discuss Ms. Truman, the continued books of Robert Parker, and the plethora of books carrying the James Patterson name.

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Little Book of Plagiarism - Noted Judge's Handy Little Book About Borrowing, Creative Process, Copyright and Plagiarism

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The Little Book of Plagiarism (Pantehon Books, 2007) is a handy 110 page book that discusses plagiarism and its relationship to legal rights, academic ethics, the creative process and even fraud. Its a book everyone involved in creative works should pick up and at least skim, if not devour.

The book is the work of Judge Richard Posner, noted conservative judge on the United States Seventh Circuit Court of Appeals in Chicago.  But Posner is more than a judge.  He is an opinionated scholar*, senior lecturer at the University of Chicago Law School and author of at least 29 books ranging from Sex and Reason, to The Problematics of Moral and Legal Theory, to his 2010 reflection on the economic collapse of 2008, A Failure of Capitalism.  His classic on economic analysis of the law, The Economics of Justice, originally published in 1981, is now in its 8th edition.

Despite its short length, it is not a basic primer - although it does cover the basics.  This little book is a well-crafted discussion of plagiarism and all its aspects, including history, theory, relationship to the crative process, technology, penalties, and even academic politics as it relates to claims of plagiarism. 

One has to be careful to distinguish those aspects of Judge Posner's book which are widely accepted and those which are the Judge's own opinions or analysis.  But that aside, Judge Posner's intellectual powers cannot be denied.  

Among the items in Posner's book to be considered:

1.   Plagiarism is not just copying.  It includes an element of fraud, either upon the reader or often upon the competitors of the author, be it fellow students or competing authors. 

2.   Copying in some types of works without attribution is to be expected, and therefore it is not plagiarism.  Specifically Posner notes that this is prevelant in text books and in such areas as legal briefing or even court opinions where one has no expectation of originality.

3.  Self-plagiarism is not plagiarism - at least as a general rule.  All authors repeat themselves, and that is expected.  It becomes an issue only in those rare circumstances where the author effectively tries to reissue a prior work as a new work, thereby deceiving his audience.

4.  Technology is having its impact.  Technology is making copying so much easier.  But likewise, universities and publishers are availing themselves of ever-cheaper computer programs and technology to check student papers and submitted works for plagiarism 

I'll be expanding on these topics in future posts. 

*Most recently, Judge Posner has been in the press for his scathing review of  The New Republic of Reading Law, co-authored by fellow conservative U.S. Supreme Court Justice Anton Scalia.  Responding to Posner's criticism, Scalia accued Posner of "lieing," to which Judge Posner took umbrage.