Copyright Bullies

 

Here is the second post on copyrights, which takes the same position (in support of copyrights) but looks at it from a different angle. Although I have made some changes, this is basically a reprint of a rant that was last posted on this blog on January 20, 2020.

Copyright Bullies

The copyright law’s fair use doctrine ensures that copyrighted works can be borrowed—within limits—to promote knowledge. “Fair use” is a complicated concept designed to ensure that information can be shared without impairing an author’s basic right to control the use of his or her material. Additionally, certain materials are in the public domain, which means there are no use restrictions whatsoever. Publishers who try to deny you these uses are copyright bullies.

These days we hear a lot about children and teens who bully their classmates. We also hear about the copyright police—the ones who remind bloggers and middle school music pirates to honor copyrights. But we rarely hear about the copyright bullies.

Copyright bullies are those publishers who try to scare us out of using their materials for any purpose whatsoever (with the sometimes exception of book reviews). The law reserves certain rights to the public, but these copyright bullies and their lawyers don’t want us to know that.

Many books have this warning in the front: “No part of this book may be reproduced in any form, except for brief quotations in printed reviews, without permission in writing from the publisher.”

Wrong. There are a number of what the law calls “fair uses,” and brief quotations in printed reviews is only one of them. To make a general and far too simplistic statement, a fair use is one that takes a short excerpt and uses it in a way that transforms or complements the copyrighted material rather than replacing it. You can find a detailed discussion of fair use in my book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), which is available from Amazon and other retailers.

Then there are those works that have been around so long that copyright laws no longer protect them. These works are in the public domain. People can use public domain materials any way they want, although they should attribute the source.

I found the most flagrant attempt at copyright bullying in a book that compiles several of Lewis Carroll’s works—all of which entered the public domain decades ago. In that book the warning states: “No part of this publication may be reproduced in any way or by any means electronic, mechanical, photocopying, recording, or stored in an information retrieval system of any kind, without the prior permission in writing from [Publisher], except in the case of brief quotations embodied in critical articles and reviews.”

Huh? All the material in that book is in the public domain, which is where the publisher got it from in the first place. The reader is free to copy at will without worrying about copyright infringement.

Here is the language I use:

©[year] by Kathryn Page Camp. All rights reserved. Copyright fair uses are encouraged, and material in the public domain remains in the public domain. Send requests for permission to . . .

We should all be careful not to violate copyrights, and some warning is necessary.

But don’t be intimidated by copyright bullies.

Copyright Champion

 

Every now and then the practice of copyrighting “creative” works comes under fire. I’m going to jump into the debate this week and next by reprinting two posts from 2020. This first one was originally posted on this blog on January 13, 2020.

Copyright Champion

I recently looked for the copyright date in a book published by Viking, which is an imprint of Penguin Random House. Instead of the normal copyright warning, it made this statement:

Penguin supports copyright. Copyright fuels creativity, encourages diverse voices, promotes free speech, and creates a vibrant culture. Thank you for buying an authorized edition of this book and for complying with copyright laws by not reproducing, scanning, or distributing any part of it in any form without permission. You are supporting writers and allowing Penguin to continue to publish books for every reader.

I agree.¹

Some people argue that copyright inhibits creativity and knowledge by restricting what people can copy, but those people are wrong. First, I don’t understand how anyone can think that copying is creative. And boiled down to its basics, that’s all copyright restricts others from doing. So how can it inhibit creativity when the only activity it prohibits is the very antithesis of creativity?

Copyright is protected by the U.S. Constitution precisely because it encourages creativity. It isn’t a reward: it’s a bribe. It isn’t wages for an author’s or artist’s finished work: it’s motivation to start working in the first place. In other words, a writer doesn’t receive the copyright because he deserves it. He gets it as an incentive to keep writing.

Second, the law’s fair use doctrine ensures that copyrighted works can be borrowed to promote knowledge. “Fair use” is a complicated concept that is beyond the scope of this post, but I will cover it briefly next week.

Although I am a strong proponent of copyright protection, I do believe that the law can be improved. The U.S. Constitution gives Congress the power to give authors the exclusive right to their works “for a limited time” but lets Congress decide what that time is. Right now, copyright lasts for the life of the author plus seventy years (or for 95 years for certain works where the legal “author” isn’t a known individual). I think that’s way too long. Copyright shouldn’t end with the life of the author since that penalizes writers and other artists who are 80 years old or dying of cancer, and they should be encouraged to write, too. But I could easily live with the life of the author plus twenty years and with 40 or 50 years for works without an individual author.

Copyrights foster creativity, and, like Penguin Random House, I support them.

But read next week’s blog post to discover how I feel about copyright bullies.

­­­__________

¹ [Added September 11, 2023.] I do disagree with the part of the statement that implies all copying without permission violates the copyright laws, but that will be covered in my next blog post.

There's Nothing New Under the Sun

 

I’ve reprinted this post several times, most recently on May 10, 2021. But it’s one of my favorites and is a good follow-up to last week, where I showed the many ways artists could create a vision from the same initial mold. So here it is again.

There’s Nothing New Under the Sun¹

The wind was picking up. Watching the approaching gale from her seat in the cockpit, Anne was grateful that Carousel had reached shelter before the storm hit. But as the sailboat’s bare mast bobbed and weaved with the others in the harbor, Anne prayed for the sailors who were still out on Lake Michigan.

Notice the opening sentence, which I borrowed from Chi Libris. Chi Libris is a group of well-known Christian novelists that include Angela Hunt and James Scott Bell. The group decided to publish a book of short stories with five shared elements: the same opening sentence, mistaken identity, pursuit at a noted landmark, an unusual form of transportation, and the same last line (“So that’s exactly what she did.”). The plots vary widely, however. In fact, the point of their collection, What the Wind Picked Up, is to show that the same basic idea can generate many diverse stories.

That’s one reason you can’t copyright ideas. The idea itself doesn’t make the story. It’s what you do with the idea that counts.

But there’s an even more important reason why you can’t copyright ideas. The founding fathers included copyright provisions in the Constitution to encourage creative works, not to inhibit them. As Ecclesiastes 1:9 says, “there is nothing new under the sun.” If ideas could be copyrighted, there would be nothing left to write about.

Here’s one idea that is frequently found in literature. Two young people fall in love but are kept apart by their feuding families, and the consequences are tragic.

You could call Shakespeare’s Romeo and Juliet a case of mistaken identity in 16^th Century Verona, Italy. The two protagonists fell in love before discovering who they had fallen in love with.

Move the setting to New York City in the 1950s, and you have West Side Story.

Then there is the apparently true story of the Hatfields and the McCoys in the Appalachian Mountains during the late 1800s. Their feud escalated after Johnse Hatfield began courting Roseanne McCoy, and Johnse’s family had to rescue him from the angry McCoy men. Did Johnse escape on a horse or use some other form of transportation that we would consider unusual today?

Or travel back to even earlier times. Legend tells of two Native American lovers from rival tribes. When their chiefs forbade their marriage, the lovers swore that if they couldn’t live together they would die together. Fleeing from their families, they embraced each other and jumped off the landmark now known as Lover’s Leap in Illinois’ Starved Rock State Park.

All of these stories use the same basic plot idea, and one (West Side Story) is still under copyright.

Now think of all the contemporary authors who have used that same plot idea. If you could copyright an idea, those stories wouldn’t exist.

Let’s look at another example.

Miss Read (pen name for Dora Saint) has written multiple books about everyday village life in England. While these books tend to have a main character, they center around an ensemble cast of ordinary, and mostly likeable, village residents. 

Does that remind you of a series by a popular American authoress?

When I read Jan Karon’s first Mitford book, I immediately thought of Miss Read and her Fairacre/Thrush Green books. It isn’t that the writing style is similar—it isn’t—or that the authors tell the same stories—they don’t. But their books have a common theme.

I don’t know if Jan Karon read Miss Read’s books before writing her own. For the sake of my point, however, let’s assume she did. And let’s also assume Jan Karon knew she could use the same idea without violating copyright law.

So that’s exactly what she did.

__________

¹ This post first appeared on the June 27, 2012 Hoosier Ink blog.

There's Nothing New Under the Sun

 

I’m preparing an index of the more than 600 blog posts I have written since January 1, 2010. Actually, I haven’t written quite that many since some of them have been reprints. Still, it’s a lot, and it isn’t always easy to come up with new ideas. So when I came across this one, I decided to reprint it again.¹ It is one of my favorites because of the creativity.

There’s Nothing New Under the Sun

The wind was picking up. Watching the approaching gale from her seat in the cockpit, Anne was grateful that Carousel had reached shelter before the storm hit. But as the sailboat’s bare mast bobbed and weaved with the others in the harbor, Anne prayed for the sailors who were still out on Lake Michigan.

Notice the opening sentence, which I borrowed from Chi Libris. Chi Libris is a group of well-known Christian novelists that include Angela Hunt and James Scott Bell. The group decided to publish a book of short stories with five shared elements: the same opening sentence, mistaken identity, pursuit at a noted landmark, an unusual form of transportation, and the same last line (“So that’s exactly what she did.”). The plots vary widely, however. In fact, the point of their collection, What the Wind Picked Up, is to show that the same basic idea can generate many diverse stories.

That’s one reason you can’t copyright ideas. The idea itself doesn’t make the story. It’s what you do with the idea that counts.

But there’s an even more important reason why you can’t copyright ideas. The founding fathers included copyright provisions in the Constitution to encourage creative works, not to inhibit them. As Ecclesiastes 1:9 says, “there is nothing new under the sun.” If ideas could be copyrighted, there would be nothing left to write about.

Here’s one idea that is frequently found in literature. Two young people fall in love but are kept apart by their feuding families, and the consequences are tragic.

You could call Shakespeare’s Romeo and Juliet a case of mistaken identity in 16^th Century Verona, Italy. The two protagonists fell in love before discovering who they had fallen in love with.

Move the setting to New York City in the 1950s, and you have West Side Story.

Then there is the apparently true story of the Hatfields and the McCoys in the Appalachian Mountains during the late 1800s. Their feud escalated after Johnse Hatfield began courting Roseanne McCoy, and Johnse’s family had to rescue him from the angry McCoy men. Did Johnse escape on a horse or use some other form of transportation that we would consider unusual today?

Or travel back to even earlier times. Legend tells of two Native American lovers from rival tribes. When their chiefs forbade their marriage, the lovers swore that if they couldn’t live together they would die together. Fleeing from their families, they embraced each other and jumped off the landmark now known as Lover’s Leap in Illinois’ Starved Rock State Park.

All of these stories use the same basic plot idea, and one (West Side Story) is still under copyright.

Now think of all the contemporary authors who have used that same plot idea. If you could copyright an idea, those stories wouldn’t exist.

Let’s look at another example.

Miss Read (pen name for Dora Saint) has written multiple books about everyday village life in England. While these books tend to have a main character, they center around an ensemble cast of ordinary, and mostly likeable, village residents. 

Does that remind you of a series by a popular American authoress?

When I read Jan Karon’s first Mitford book, I immediately thought of Miss Read and her Fairacre/Thrush Green books. It isn’t that the writing style is similar—it isn’t—or that the authors tell the same stories—they don’t. But their books have a common theme.

I don’t know if Jan Karon read Miss Read’s books before writing her own. For the sake of my point, however, let’s assume she did. And let’s also assume Jan Karon knew she could use the same idea without violating copyright law.

So that’s exactly what she did.

__________

¹ This post first appeared on the June 27, 2012 Hoosier Ink blog and was reprinted on my blog on January 26, 2015.

Authors Guild v. Google: A Win for Authors, Researchers, and the Public

The Authors Guild lost the case, but is the same true for its members? In my opinion as an author and writer, the Authors Guild’s position was contrary to the best interest of its members. So when it lost, its members won.

How is the decision a win for authors? As I said in last week’s post, the Goggle books search engine does not substitute for the actual book. If the book seems to be helpful or interesting to the searcher, the searcher will track it down at a library or buy her own copy (assuming it is in print or readily available from second-hand booksellers), and the search results provide purchasing links to make it easy. That should result in more sales rather than less, particularly if the person was previously unaware of the book. And even if the searcher doesn’t purchase a copy or can’t find the book because it is out of print, the mere fact that it came up in a search gets the author’s name out there. As an author, I consider it a win for me.

I’m not alone, either. A number of authors have allowed Google to use more extensive portions of their books. Many think of it as free publicity.

The decision is also a win for researchers, and that includes authors like me who do a lot of research for their own books. If a book looks helpful, I will either purchase it or find it at a library (and increased demand on libraries may create more purchases by them). The search is one way to find things I wouldn’t have even know about otherwise. It can also help me and other researchers rule out books that aren’t helpful, saving valuable time. Even if I knew about the book in advance and now rule it out because of poor writing or apparently shoddy research, that doesn’t translate into a lost sale. If I can’t find out enough about a book, I’m unlikely to risk my time or money on it anyway.

Anything that makes access to information easier also benefits the public. So the public wins, too.

If you look only at the case caption, you might decide that Google won and the Authors Guild lost. And you’d be right.

But the real winners are authors, researchers, and the public.

Authors Guild v. Google: What Was It All About?

On April 18, the U.S. Supreme Court refused to hear arguments in Authors Guild v. Google, Inc., ending the Authors Guild’s attempts to stop the Google Books Project. This copyright case has important implications for writers, but they may not be what you think.

Article I, Section 8 of the United States Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In other words, copyrights are created to benefit the public by giving authors an incentive to write. But since the public—not the author—is the intended beneficiary, the law allows certain “fair uses” that overcome copyright protection when the copyright would actually inhibit new creative uses. That was the issue in Authors Guild v, Google. Was Google’s book project a copyright violation, or was it a fair use?

The case had a very long procedural background, and it’s too complicated for a blog post. But here is a quick summary of the significant facts and arguments when the case reached the 2d Circuit Court of Appeals for the final time.

In 2004, Google started making digital copies of books from hard copies owned by various research libraries. Google kept the original digital copy and gave a duplicate to the library that had provided the book, with a contractual provision prohibiting the libraries from using the copy for any purpose that violated the copyright laws. Google used its digital copies to create an online index to those books, most of which were non-fiction and some of which were out of print.

The Google Books project allows researchers to find relevant books by searching key terms selected by the researcher. The search shows all books that include those terms and gives the number of times the term is used. For example, someone who searched on “World War II” would find millions of books, each listing the number of times or pages that search term appears in the book and one or more very short excerpts (snippets) that include the search terms. Unless the book is in the public domain or the publisher or copyright holder has given permission to provide more, this basic information (title, author, etc.; number of “hits” within the book; and a snippet or two) are all the viewer will get. In most cases, it will be enough to tell the researcher whether the book is worth tracking down. If the book is in print, the search results also give links for purchasing it from unaffiliated retailers. The information does not, however, provide enough of the text to substitute for the book itself.

That’s important. Without going into the intricacies of the fair use analysis, suffice it to say that indexes are a fair use of copyrighted material if they are not a substitute for the original text (or art or other creative matter). This is true whether the index is of the old-fashioned printed type or an online search engine. Nor is it copyright infringement to make a non-public digital copy of the complete work for the limited purpose of creating that index. This principle is well settled in the case law.

I think the result in Authors Guild v. Google is consistent with the U.S. Constitution, the copyright statutes, and prior case law, so I’m not surprised by the result. But I am surprised that the Author’s Guild thought they had a chance of winning it. Or maybe their original strategy was to force a settlement that resulted in some payments to their members. If so, their strategy failed.*

By now, it should be clear that I think the 2d Circuit’s decision is legally correct. But does it help or hurt me as an author?

That’s the subject of next week’s post.

__________

* The parties did reach a settlement agreement in which Google would have paid for uses that included but were more extensive than the ones involved in the final decision. The district court rejected the proposed settlement as unfair to some of the authors who would have been bound by it. At that point, the Authors Guild filed an amended complaint and continued its lawsuit against Google.

Photos are Creative Works

This isn’t the blog post I intended to write this week. I had a totally different topic in mind. So why am I postponing it for a week or two or possibly three? I found the perfect picture to use with it, but the photo is copyrighted by someone other than me. So Friday I sent a request for permission to use the photograph, and I’m deferring the post in the meantime.

But that makes this a good time to remind my readers—especially those with their own blogs—that the copyright laws apply to photos, too. And just because you can find it on the Internet doesn’t mean you have permission to use it.

The following post originally appeared on the Hoosier Ink website on October 25, 2012. I have made a few very minor edits.

Photos Are Creative Works

As with anything else, photographs must have some minimum creativity to enjoy copyright protection. But almost every photograph qualifies.*

Consider the above picture of Autumn colors, which I took in October 2012 at Crapo Park in Burlington, Iowa. I didn’t create the subject, nor did I stage the picture. But I did choose the camera settings and select the scene that filled the frame. I even get credit for being in the right place at the right time.

Then there’s the second picture, which I used in my September 27, 2012  Hoosier Ink post on art versus science. The posed subject may not look very creative, but the copyright laws say it is. The first holder has a candlestick in it to demonstrate its function, and the second is empty so the viewer can get a better idea of its design. All purposefully done to make a point.

Because both photos meet the standards for creativity, you can’t use either without my permission.

There is a distinction between natural subjects and posed pictures, however. I can stop you from using my photo of the leaves in Crapo Park, but I can’t prevent you from going there at the same time next year and taking your own photograph. With a posed picture, I can keep you from copying the pose as well as the actual photograph. That’s because the subject is also a result of my creativity.

As with my photographs, yours are also copyrighted. That’s a good thing.

Because it isn’t just our writing that is creative.

__________

*For an in-depth discussion of the elements that make a photograph creative, see Mannion v. Coors Brewing Co., 377 F.Supp.2d 244 (S.D.N.Y. 2005).

Work for Hire: When the Writer Isn't the Author

As I promised last week, I am reprinting a post that I wrote for the “Hoosier Ink” blog on November 25, 2010.* The post, titled “When the Writer Isn’t the Author,” discusses when something is a work for hire and what the legal implications are.

 

One additional note. A freelancer can assign/sell/give the copyright to the person who commissioned the work even if it doesn’t qualify as a work for hire. For practical purposes, the results may be the same, but the labels are still different.

 

When the Writer Isn’t the Author

 

“I wrote it, so I get the copyright. Don’t I?”

 

Usually, but not always.

 

The author receives the copyright, but the author and the writer aren’t always the same person.

 

I see that puzzled look on your face, so let me explain.

 

Federal law gives the copyright to the author. In most cases, the person who wrote the manuscript is the author. But the definition changes if the material is what copyright law calls a “work made for hire.”**

 

So what is a work for hire? The law creates two categories. The first is simply “a work prepared by an employee within the scope of his or her employment.” If you are a staff journalist writing articles for the newspaper that employs you, those articles are works-for-hire. You may be the writer, but your employer is the author for copyright purposes.

 

How you label your relationship doesn’t matter. If you are billed as a “freelance correspondent” or an “independent contractor” but are required to work a certain number of hours every week and are paid for vacations and sick days, you are probably an employee rather than an independent contractor. It isn’t always easy to draw the line, but the more you look like a traditional employee, the more likely it is that the writing you do as part of the relationship is work for hire.

 

You don’t have to be an employee to create a work for hire, however. That’s because there is a second category for certain commissioned works.

 

To determine if a work fits into this second category, ask yourself the following three questions. If you answer “yes” to all of them, it is a work for hire and the person who commissioned it is the author. If even one answer is “no,” as the writer you are also the author.

 

1.  Was the work specially ordered or commissioned? In other words, did someone ask you to write it? If you did the work on assignment, it may be a work for hire. If you wrote it on your own initiative and followed a normal submission process, it is not.

 

2.  Was it created “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”? Magazines and newspapers are collective works. A novel is not a collective work, but a single book containing four novellas is.

 

3.  Have the parties signed a written agreement saying it is a work for hire?

 

If the material is a work for hire (either because you are an employee or because you answered all three questions in the affirmative), does that mean you can’t use it? The answer depends on your agreement with the legal author. Your employer may let you republish the material for certain purposes or under certain conditions, but ALWAYS get it in writing. The same is true for a commissioned work. See what you can negotiate, and put it in writing.

 

So should you enter into a work for hire arrangement? Weigh what you get out of it against what you give up and make your own call.

 

But don’t assume that you own it just because you wrote it.

 

_________

 

* http://hoosierink.blogspot.com/2010/11/when-writer-isnt-author.html

 

** See 17 U.S.C. 101 and 17 U.S.C. 201(b).

 

__________

 

The photograph shows the Office of War Information News Bureau in November 1942. Because these individuals were employees, the news articles they produced were works for hire. The photographer, Roger Smith, was also an employee, so the photograph belongs to the United States government. Because there is no copyright in U.S. government works, the photograph is in the public domain.