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>

**photo credit: <a href="http://www.flickr.com/photos/mjaniec/5403877185/">mjaniec</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-nc-sa/2.0/">cc</a>

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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