Copyright Today

 

Kenneth Follett’s newest novel, The Evening and the Morning, makes this statement in place of the usual legalese on its copyright page:

Copyright@2020 by Ken Follett. Penguin supports copyright. Copyright fuels creativity, encourages diverse voices, and creates a vibrant culture. Thank you for buying an authorized version 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 authors and allowing Penguin to continue to publish books for every reader.

The founders of our republic also recognized the importance of rewarding the creation of intellectual property. On September 17, 1787, the Constitutional Convention made it a duty of Congress “to promote the progress of science and useful arts, by securing for limited times to authors and discoverers the exclusive right to their inventions and discoveries.” The Copyright Act of 1790 spelled out how this would be done, and subsequent revisions of the law broadened the range of creations covered and extended the term of coverage until the Digital Millennium Copyright Act of 2001 made it the length of the author’s life plus 70 years.

Unfortunately, the last two decades have seen a substantial erosion of copyright protections. New technologies such as Internet blogging and massive text scanning made it much easier to repackage and repurpose an author’s content. This made enforcement more difficult. As a result, courts began to broaden the scope of what they considered “fair use” of copyrighted material.

Which brings us back to Penguin’s new copyright notice. I hope other publishers will follow suit because it recognizes that copyright law, properly understood and implemented, serves everyone's best interests. Beyond this, how can we make the most of our intellectual property in this changing environment?

First, I believe we authors need to move more swiftly. For example, if we issue sequels of our best-selling books at too leisurely a pace, we invite competitors to rush in.

Second, we need to establish distinctive publishing brands. We reach more people if we specialize in a couple of genres, set our stories in one or two historical periods, etc. It's also easier to defend a brand than to defend our exclusive right to a particularly memorable bit of narrative. 

Third, we need to be scrupulous about obtaining permission to use other authors' copyrighted work in our own. This is easier than ever, and seldom entails a permission fee.

Finally, we need to be vigilant to identify and block pirated editions of our work. A year ago, my distributor sold a copy of my goal-setting book to a customer in China, which seemed rather odd. A few months later, Amazon began selling the book well below its wholesale price. My distributor reported that Amazon's sales of the book fell to zero, but the book’s ranking in its Amazon category rose. I sent several letters to Amazon's legal department, pointing out that they seemed to be selling a pirated edition. They responded that they were not responsible to sue book pirates; I was. So I withdrew the book from the market for three months. When I announced it was back in print, Amazon adjusted its retail price and my distributor began reporting sales through Amazon again!

Copyright law is designed to promote the creation and dissemination of innovative ideas. Let’s do our part to make sure that happens.

To Register or Not to Register*

By Kathryn Page Camp

 

Obtaining a copyright is as easy as getting the material out of your head and putting it down on paper or a computer drive. The minute you put it in tangible form, it is copyrighted.

“Wait,” you say, “don’t I have to register it with the government?”

No. You can, but you don’t have to.

There is a $35 registration fee for most textual works registered online, and the fee is higher if you do it the old-fashioned way. If you register multiple manuscripts, both the time and the money can add up.

Most copyright violators are unintentional infringers who simply don’t realize that the work is copyrighted. The easiest way to solve that problem is free: just add a copyright notice. You don’t have to register the material or even publish it to do that.

So why would anyone register a copyright?

First, registration provides a record that you created the material, which tends to discourage intentional infringers. Second, you can’t sue for copyright infringement until you have registered your copyright. And if you register it before the infringement occurs or no later than three months after publication, you can get statutory damages. That means the court can award you money even if you can’t prove that you lost any.

If you sign a book contract, check to see who is responsible for registering the copyright. If you publish an article in a print magazine or an e-zine, the magazine’s registration will not cover your article if you retain the copyright.

I can’t tell you when to register a copyright. That’s a personal decision. But here are the guidelines I use.

1.         Unpublished manuscripts. Contrary to what many people believe, it is almost unheard of for publishers and agents to steal material. Besides, you can’t copyright ideas and the elements that flow naturally from those ideas, so registration does not protect you if a publisher thinks you have a great idea but asks someone else to write it. I have never registered my unpublished material.

2.         Short published items, such as blog posts. I weigh the time and expense against the harm—emotional as well as economic—if someone steals the material. I also consider whether a copyright notice is sufficient. A magazine article that I intend to resell numerous times is worth registering. A blog post that I am unlikely to reuse isn’t.

3.         Longer published items, such as books. For longer material that could reach a sizeable audience, registration becomes more time- and cost-effective. Although the law does not require registration, it does require copies of each hardcopy book (including books published only in paperback) to be deposited with the Library of Congress, and registration serves both functions. In my opinion, all published books (e-books or hardcopy) should be registered.

For more information on copyright registration, go to www.copyright.gov and download the publication called “Copyright Basics,” which can be found under the Publications/Circulars tab. One warning, however. The Copyright Office’s publications stay close to the statutory language, so they do not directly address blogs and other formats that did not exist when the laws were written.

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*  This is an updated reprint of a guest post I originally wrote for the “Story and Logic” blog. It was first published in 2013.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

The Use and Misuse of Copyrighted Materials in the Classroom

 



As the new school year approaches, teachers often wonder what materials they can use to supplement the textbooks provided by their schools. Can you photocopy a short story for your English class? Can you show a movie to your third graders? Are there special rules for materials found on the Internet?

It isn’t possible to give a thorough answer in a blog post, but here are some quick tips. These are general guidelines only. 

• Printed Material
• In general, short works and short excerpts of larger works may be copied one-per-student if (1) made from legally acquired originals and (2) there isn’t enough time between the decision to use it and the moment of its use to obtain permission. (This latter condition requires good faith, and the work or excerpt can’t be used again without permission.)
• Short works and short excerpts of larger works may be incorporated by a teacher into a multimedia presentation (e.g., PowerPoint) for classroom teaching if (1) made from legally acquired originals and (2) there isn’t enough time between the decision to use it and the moment of its use to obtain permission.
• This copying must not be a frequent occurrence (no more than nine times per class per year).
• Short excerpts may be incorporated into student multimedia projects if made from legally acquired originals.
• Current newspaper and news magazine articles may be reproduced.
• Creating anthologies from copyrighted material is not allowed.
• Teachers may not reproduce workbooks or other “consumables.”
• Students may not be charged any more than the actual copying cost.
• Special rules apply to course packs sold to students.
• Digital Text (e.g., E-Books)
• Digital materials are subject to the same rules as print materials.
• Movies and Television Programs
• In general, movies and television shows that have been published for general consumption (e.g., commercially sold DVDs) may be shown in the classroom if legally acquired and shown for instructional purposes.
• Programs recorded from broadcast television (the “free” stations) may be shown within a short time after the program airs (generally ten school days.)
• Teachers may not use pirated copies or copies made from pirated copies.
• Admission fees are not allowed, even if charged indirectly.
• In general, teachers may not use cable television programs recorded from the television.
• Images (Art and Photographs)
• Single works may be used if limited to just a few (usually no more than five) images by the same artist or photographer.
• Excerpts from collections may be used if they are a small part of the collection.
• Music
• Copies that have been legitimately obtained may be played for the class.
• Short excerpts may be included in student multimedia presentations or in those prepared by a teacher for classroom use.
• Internet
• Materials on the Internet are subject to the same copyright rules as other materials of the same type. Assume the materials are copyrighted unless you have reason to know they are in the public domain (e.g., federal publications or material published before 1923).
• Links may be freely shared as long as they do not provide direct access to materials that are password protected.
• Computer Software
• Licensing provisions must be honored.

There are no restrictions on material that is in the public domain (e.g., federal publications and material that was first published before 1923). However, annotations and other added material may have to be removed unless they are also in the public domain.

Have a great school year.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

Fair Use of Copyrighted Material

Last month I warned you against using copyrighted material on the Internet without permission. But what if you can’t get permission?

The copyright law allows what it calls “fair use.” Unfortunately, it isn’t always easy to know what use is fair.

The statute sets out several factors for courts to consider, but it isn’t a simple mathematical equation—just because you meet most of them doesn’t mean you win.* The courts look at all the facts and circumstances in the case. In Harper & Row Publishers, Inc. v. Nation Enterprises, the U.S. Supreme Court found that a purported book review that used approximately 400 words from a 200,000 word manuscript violated the copyright.** For a more detailed discussion of that case, read my July 23, 2013 Hoosier Ink post. 

Still, by looking at the statute and the cases together, it is possible to get a general idea of what qualifies as fair use.

• Criticism or comment, news reporting, teaching, scholarship, and research are often fair use, although it may depend on how much of the original material is borrowed. Fair use does not usually allow a teacher to copy books, movies, or music for classroom use.
• If the use is primarily commercial (e.g., you included the lyrics from a copyrighted song in the novel you hope will become a bestseller), the courts are less likely to find that it is a fair use than if the use is for nonprofit educational purposes.
• The courts also consider the nature of the copyrighted work. The courts are more likely to find fair use for copying passages from a scientific text than for paraphrasing material from a novel.
• If you use a significant amount or a defining aspect of the work, it is less likely to be a fair use. Those 400 words in the Nation Enterprises “book review” were less than .1% of the manuscript, but they were the meatiest parts.
• The courts also look at how the use affects the potential market for or value of the copyrighted work. If the use increases the copyright owner’s profits, it is probably fair use. If it takes money out of the owner’s pocket, it probably isn’t. For example, if you quote just enough to whet your readers’ appetites and send them running to the bookstore to buy the book, it is probably fair use (and the copyright owner is unlikely to complain, anyway). If you photocopy an entire book and give it to someone who might have bought it otherwise, it is unlikely to be a fair use. On the other hand, a negative book review may turn away potential buyers, but as long as it doesn’t use more of the text than is necessary to make its point, it is still fair use.

Here is my personal rule about using copyrighted material without permission: When in doubt, I don’t. But if I’m confident that it’s a fair use, I don’t let the copyright bullies talk me out of it.

Because that wouldn’t be fair.   

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* 17 U.S.C. § 107 describes the fair use factors.

** Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

Copyrights on the Internet

I put this picture on the Internet without a copyright notice, so you can use it however you want, right?

Wrong.

Posting something on the Internet does not change its copyright status any more than publishing it in a magazine does. And the current copyright law doesn’t require either registration or a copyright notice.

I took the photo last summer while driving through Utah. It was copyrighted the instant I took it, and I don’t lose the copyright by posting it on the Internet.

Although a copyright notice isn’t necessary, it does inform the reader who might otherwise copy out of ignorance. I don’t include a formal copyright notice with each individual post on my personal blog, but the site itself contains this warning:

The material on this blog is copyrighted unless otherwise noted. You do not need permission to include links to this blog. To ask permission for other uses, contact me at [e-mail address].

Ignorance is no excuse, of course, and it won’t protect you if someone charges you with copyright infringement for the material you use on your blog or anywhere else. So don’t use anything you are unsure about. With a few exceptions that are beyond the scope of this post, you should get permission to use any material that is not clearly in the public domain. This includes photos and artwork and text and even music.

So what material is clearly in the public domain?

• Material that was published in the United States before 1923. Works that were created or first published in another country may have a longer copyright in those countries, so you may have to be careful about distribution. Some material published after 1923 is also in the public domain, but that is more complicated to figure out.
• Material produced by federal government employees in the course of their official duties. This includes opinions issued by federal courts and reports and photographs created by employees of federal agencies.
• Material that cannot be copyrighted, such as names and titles, short phrases and slogans, ideas, and facts. However, names and titles and short phrases and slogans can become trademarks, which entitles them to a different kind of protection. And although ideas and facts cannot be copyrighted, the expression describing them can be.

Some creators waive the copyright by marking their material with “no rights reserved.” Whether this actually puts the material in the public domain depends on the jurisdiction. At the least, however, it gives the public a blanket permission to use the material. Still, it is best not to rely on the “no rights reserved” tag unless you have good reason to believe that it was added by the person who would otherwise own the copyright.

But, you ask, aren’t there some situations where I can use copyrighted material without getting permission? Of course there are. It’s called “fair use.”

 

That will be the subject of next month’s post.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

The Case of the Crusade Wars

Plagiarism is illegal, right?

Wrong. Most people would agree that it is unethical, and it can ruin a writer’s career. But it is not illegal.

In 1949, Twentieth Century Fox produced a television series called “Crusade in Europe.” The series was based on a World War II book by then General Dwight D. Eisenhower. The copyright for the series expired in 1977, and it entered the public domain.

In 1988, Dastar Corp. produced and sold a series of video tapes that borrowed heavily from the earlier television series. Since the series was in the public domain, Dastar had every right to use that material. But Dastar did not credit the original series, which made its use plagiarism.

There was no law prohibiting plagiarism, and Twentieth Century Fox knew that it didn’t have a case under the copyright laws. So it tried a different tact.

Twentieth Century Fox argued that Dastar’s unattributed use violated the trademark laws. Those laws prohibit “reverse passing off,” which is the practice of putting your own label on someone else’s goods. Twentieth Century Fox argued, in essence, that by using footage from the series without attribution, Dastar led consumers to believe that it had produced the material.

The theory sounds good on its face, but consider this.

Copyrights last for a limited duration. And although people argue over whether the length is too long or too short, it is still limited. (For most works created after 1978, the term is life of the author plus 70 years. In 1949, the term was 28 years unless renewed, which Twentieth Century Fox failed to do.)

 

Trademarks last as long as you use them, which could be forever. Because of this difference, Twentieth Century Fox’s reading of the trademark laws would make them conflict with the copyright laws, and courts don’t like that, especially since the framework for the copyright laws is included in the U.S. Constitution.

So what did the Supreme Court say? “[O]nce the . . . copyright monopoly has expired, the public may use the . . . work at will and without attribution.” (Pgs. 33-34.)

Plagiarism is not illegal, so Dastar won the case.

Still, that doesn’t make it right, nor does it make it prudent. It's never a good idea to pass someone else's words off as you own. Writers can lose their jobs and their reputations that way.

It’s easy to avoid plagiarizing: simply give the author credit. Or if you don’t know who wrote it, attribute it to “author unknown.”

Join me next month for the final post in this series: The Case of the Obstinate Movie Star. And anyone from my generation will recognize the name.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

The Case of the Purloined Hat

In 1995, Penguin published an illustrated book about the O.J. Simpson trial. The book was called The Cat NOT in the Hat! A Parody by Dr. Juice and included at least eighteen images showing O.J. Simpson wearing a scrunched-up red-and-white stove-pipe hat. While the book’s title, its narrator (Dr. Juice), and the hat all conjured up images of Dr. Seuss and his best-known character, the book itself was not about Dr. Seuss or his famous cat. Neither did it criticize either the substance or the style of the Dr. Seuss book.

According to the 9^th Circuit, the authors of The Cat NOT in the Hat! used the hat and the other Dr. Seuss references to get attention, or maybe they were simply too lazy to be creative. Unfortunately for them, the image of the well-known hat was copyrighted.

Last month’s post on "The Case of the Disappearing Wind" introduced the use of parody as a defense to a copyright infringement claim. As that post noted, the Supreme Court has defined a parody as something that comments on the substance or style of the original work in a way that makes the original appear ridiculous. A new work that makes fun of something other than the original work may be a satire, but it is not a parody.

“The Cat NOT in the Hat! A Parody by Dr. Juice” was, despite its name, NOT a parody. Its criticism had nothing to do with the Dr. Seuss book. So after considering all four factors described in my July 25, 2013 post, the 9^th Circuit Court of Appeals ruled that it was not a fair use, and it prohibited Penguin and the authors from publishing or selling the book.

This doesn’t mean that a satire can never be a fair use. But the satirist does not have to use as much—or perhaps anything at all—from another copyrighted work in order to make his point. As a result, a satirist is not allowed to borrow as much as a parodist can.

The image of the cat’s hat was also a registered trademark. The test for copyright infringement is very different from the test for trademark infringement, however. In this case, the 9^th Circuit agreed with the district court that it needed a trial before it could decide whether there was trademark infringement.

So how does parody work in a trademark case? Tune in next month for the Case of the Sarcastic Spy.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

The Case of the Disappearing Wind

Alice Randall wrote a novel called The Wind Done Gone, which used the characters, plot, and major scenes from Margaret Mitchell’s best-selling book, Gone With the Wind. Although the two books are substantially similar for copyright purposes, the second book turns the first on its head. The Wind Done Gone is told from the point of view of a black slave rather than a white plantation owner’s daughter. The individuals with strength of character in Mitchell’s work are weak individuals in Randall’s work, and vice versa. Furthermore, the Southern customs and values that were treated sympathetically in Gone With the Wind are shown as corrupt in The Wind Done Gone.  

Suntrust Bank, as trustee for the Mitchell Trust, sued Randall and her publisher for copyright infringement. Randall claimed that The Wind Done Gone was not substantially similar to Gone With the Wind (an argument she lost) or, in the alternative, that it parodied the earlier work and was a fair use (an argument she won).

As noted last month in "The Case of the President's Words," the first fair use factor is the purpose and character of the allegedly infringing work. In a separate case, the Supreme Court said that parody is a transformative use under that factor and defined parody as something that comments on the substance or style of the original work in a way that makes the original appear ridiculous. (Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994).)

The 11^th Circuit found that The Wind Done Gone was a parody of Gone With the Wind because the second book challenged Gone With the Wind’s idealized portrait of the South during and immediately following the Civil War.

The nature of the allegedly infringing use is only one factor the courts consider. Although most parodies--or at least most recognizable parodies--are fair uses, that is not an automatic result. But it was the result in this case. After analyzing each of the four factors, the 11^th Circuit found that The Wind Done Gone did not violate the copyright laws.

The 11^th Circuit’s analysis came early in the case and could theoretically have changed after a trial. Theoretically, but not realistically. And since Suntrust Bank dropped the lawsuit, we’ll never know for sure.

When is a parody not a parody? Tune in next month for the Case of the Purloined Hat.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

The Case of the President's Words

Former President Gerald Ford wanted to write his memoirs, and he entered into a contract with Harper & Row to publish them. The contract also gave Harper & Row first serial rights, which it then sold to Time Magazine. That means Time paid Harper & Row for the exclusive right to publish parts of the book before it was released.

Then the editor of The Nation purloined an advance copy of the manuscript. He had only a couple of weeks before Time was due to print its first excerpt, so he threw together a quick, 2,250 word article that quoted the highlights of the book, including Ford’s reasons for pardoning Nixon. The Nation intended to scoop Time, and it did. Because Time’s exclusive rights were no longer exclusive, it cancelled its agreement with Harper & Row.

Harper & Row sued The Nation, claiming that the magazine had infringed the copyright in President Ford’s book.

Copyrights exist to inspire creativity, not to suppress it, so the copyright law protects fair uses. Since brief quotations in printed reviews are usually considered fair, Nation Enterprises should have won the case. Right?

Wrong.

The district court judge didn’t think The Nation’s article was a fair use. A divided panel (2-1 vote) of the 2^nd Circuit Court of Appeals did, so it reversed the decision. When the case went to the United States Supreme Court, it got another divided panel—and another reversal in a 6-3 decision saying the use was not fair. If the people who are paid to decide fair use issues can’t agree, what’s a writer to do?

Unfortunately, there is no bright-line test. Still, courts analyze four factors, and the Supreme Court discussed each of them in the Harper & Row case.

1. The purpose and character of the allegedly infringing use—in this case, of The Nation’s article. News reporting is normally a fair use, as are criticism, comment, teaching, scholarship, research, and anything that transforms the work. But normally doesn’t mean always. Here, the magazine’s motive was purely commercial, and its “commentary” was mostly a cut and paste of selections from the book. So even though the piece was written as a news article, this first factor counted against it.
2. The nature of the copyrighted work—meaning the nature of Ford’s autobiography. The more creative the work, the more it deserves protecting. Fiction deserves the greatest protection and most non-fiction the least, with creative non-fiction coming somewhere in between. Under normal circumstances, this factor may have been a wash. But Ford’s memoir had something else going for it. The Court said that whether material has been published is part of its nature, and unpublished material deserves greater protection than published material. Since the memoir was still unpublished when the article came out, The Nation lost on this factor, too.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. Generally, the higher the percentage borrowed, the less likely it is to be a fair use. That means you can borrow more words from a book than from a poem. But it isn’t a mathematical test, and if you borrow the heart of the work, it doesn’t matter how small it is. The article used approximately 400 words from President Ford’s 200,000 word memoir, but those words were the juiciest parts of the manuscript. For that reason, this factor also counted against the magazine.
4. The effect upon the potential market for the copyrighted work. If the new work can be a substitute for the copyrighted work, it is probably not a fair use. People who read the unauthorized article no longer had a reason to buy Time to get the information, so The Nation's article was a substitute for the Time article. The economic loss was obvious, too: Time cancelled its exclusivity agreement and Ford’s publishers lost the money they would have been paid for it. Another strike against The Nation.

All four factors weighed against The Nation, so it’s no surprise that it lost the case. Still, three out of four isn’t an automatic loss, and one out of four isn’t an automatic win. It all depends on the facts.

So if The Nation’s article wasn’t a fair use, what is?

Tune in next month for the Case of the Disappearing Wind.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

The Case of the Aging Protagonist

 

A troubled male leaves an institutional setting, wanders around New York City, and eventually returns to a different institution. That's an idea that cannot be copyrighted. So when it shows up in books by different authors, what's the problem?

 

Let's flesh the two stories out. One male is sixteen and the other is seventy-six. Both protagonists are sarcastic, uncouth, depressed, and have trouble connecting with people. So far the second author hasn't crossed the line between ideas and expression. But let's continue.

 

At the beginning of each book, the protagonist leaves his institution (a boarding school and a nursing home, respectively) and wanders around New York City. While there, he almost has sex but ultimately decides not to, finds himself in Central Park, ponders where the ducks go in the winter when the ice freezes, stands on a hill next to a cannon while watching a sporting competition, and thinks about the metaphor that life is a game. Each protagonist also has a vision of himself saving children in a field of rye. As the story ends, the younger protagonist is in a mental institution contemplating his entry into a new boarding school and the older protagonist is in a different nursing home than the one he left.

 

Would it surprise you if these two protagonists shared the same memories and family background? In fact, the elderly man is the teenager fifty years later. But other than the physical process of aging, the protagonist has not changed in those fifty years.

 

J.D. Salinger believed in protecting his words. He was already a seasoned litigator when Frederick Colting wrote and published 60 Years Later: Coming Through the Rye, which Colting advertised as a "tribute" to Salinger and his classic novel, The Catcher in the Rye. Unfortunately for Colting, Salinger was not pleased with a tribute that he believed used his copyrighted expression.

 

As you can tell from the above description, 60 Years Later didn't just share a plot with The Catcher in the Rye: it was essentially a paraphrase. (In the interest of full disclosure, I didn't read either book. My summaries are based on the judge's summaries in the written decision, which I did read.)

 

The judge felt that Salinger was likely to prove copyright infringement, so she granted Salinger a preliminary injunction ordering Colting to stop selling the book while the case was pending.

 

This happened before a trial was held. The Second Circuit Court of Appeals later reversed the preliminary injunction but did not disturb the judge's finding that Salinger was likely to succeed on his copyright infringement claim. An educated guess says that Salinger would have eventually won the case. No one will ever know, however, because Salinger died and his executors settled the dispute.

 

The judge also rejected Colting's argument that 60 Years Later was a fair use of Salinger's book. But what makes something a fair use? Join me next month for the case of the President's words.

 

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Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court's First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

 

 



The Case of the Sneaky Cook

If you want to get something published, it doesn't hurt to be Jerry Seinfeld's wife. At least that's what Missy Lapine apparently thought when her idea to sneak healthy ingredients into children's foods showed up in a cookbook by Jessica Seinfeld. And when an imprint of the same house that had recently turned down Lapine's The Sneaky Chef published Seinfeld's Deceptively Delicious, Lapine was convinced that Harper Collins and Seinfeld had stolen Lapine's idea.

So Lapine sued--and lost.

As Ecclesiastes reminds us, there is nothing new under the sun. That's why ideas belong to everyone and cannot be copyrighted. Sneaking healthy ingredients into children's food is an idea. There was no evidence that Seinfeld or Harper Collins got the concept from Lapine's manuscript, but they were acting legally if they did.

Beyond the basic idea, the two cookbooks were very different. As the judge described it, The Sneaky Chef covered thirteen methods for sneaking healthy ingredients into children's foods, was printed in muted colors, and was dry and text-heavy with a lecturing tone. In contrast, the judge said that Deceptively Delicious concentrated on one method (pureeing), was bright and cheerful, and provided simple, step-by-step recipe instructions for busy parents.

But if you can't copyright ideas, what can you copyright? You copyright expression, which covers the words you choose to present the idea and the way you arrange those words. (The exception is when there are limited ways to say something, such as describing how to make a particular recipe.)

Still, how do you know where the courts draw the line between ideas and expression? Find out next month when I cover the case of the aging protagonist.

* * * * *

Kathryn Page Camp is a licensed attorney and full-time writer. Her new book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013) is available from Amazon.com and other retailers. Kathryn is also the author of In God We Trust: How the Supreme Court's First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

Goodbye Copyright

As you eat turkey today, you probably won't think about those Christmas cards you intend to start working on tomorrow. Or maybe you will.

You wonder about buying them while you are at the Black Friday sales. But trying to find the Christ Child among all those "seasons greetings" is depressing.

So if you're like me, you make your own. Or maybe you write a newsy e-mail instead. Either way, you may want to include a verse from your favorite Christmas carol. Can you?"

As my father used to say, "You can, but may you?"  (Groan.)

It depends on how old it is.

"Silent Night"? No problem. It was written in 1818 and any copyright protection expired long ago.

"The Little Drummer Boy"? Sorry. Its copyright was registered in 1959 and renewed in 1987, so you need permission.

But how do you know when a copyright expires and the work passes into the public domain? The term is governed by statute, and Congress changes it from time to time. As a result, the length of protection depends on when the work was created, published, or registered.

If the work was published before 1923, the answer is easy. It's in the public domain and you can use it any way you want.

If it was created in 1978 or later, the earliest it will enter the public domain is 2048. For most of these works, the copyright term is the life of the author plus 70 years. If the author died in 1986, the copyright expires in 2056. If she died in 2006, the copyright expires in 2076. And if the author is still living, all you can know for sure is that the copyright will last at least another 70 years.

If the material you want to quote was a work for hire or the author is unknown, other rules apply. And if it was created, published, or registered from 1923 through 1977, the law gets even more complicated. For more information on these expiration dates, go to www.copyright.gov and download Circular 15A.

Because a copyright lawsuit is even more terrifying than the Black Friday sales.

Kathryn Page Camp

Photos Are Creative Works

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

Consider this picture of Autumn colors, which I took earlier this month 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 last month's 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.

Kathryn Page Camp
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* 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).

Art v. Science

More science than art. That's the best way to describe the last category of uncopyrightable material. Or I can give you a list the way the U.S. Copyright Office does and simply say that you can't copyright procedures, methods, systems, processes, discoveries, or devices.

This grouping does cover some materials that wouldn't earn the label "science." Procedures and methods include such things as sweepstakes rules and instructions for preparing recipes. There are only so many ways to tell someone to write his or her name and address on a sheet of paper and mail it in. Or to instruct a cook to mix ingredients together and bake them in a 350 degree oven. If that information could be copyrighted, sweepstakes sponsors and Internet recipe sites would all be at risk.

But "more science than art" is still the best umbrella phrase for this category. Copyright is for the creative arts, not for scientific mechanisms.

Scientific items like inventions are protected under patent law, instead. But descriptions, explanations, and illustrations of those devices can be copyrighted if the text or drawing contains sufficient creativity.

Then there are the "useful arts," which combine art and science--or at least art and function. Useful articles cannot be copyrighted but the design elements in them can be if--and only if--they are physically or functionally separate from the device itself. This will rarely if ever apply to writers as writers, but it's a fun exercise anyway.

Look at the picture above, which shows the candle holders my daughter bought for her wedding reception. A pretty design, with a heart at the base and a circular staircase wending its way to the top. Art, but not copyrightable. That's because the bottom heart acts as the stand and the spiral keeps the candle from falling over. The design is an integral part of the function.

But all is not lost. There are other ways to merge art with function without losing your copyright in the art. You can't keep people from painting pictures on ceramic vases, but you can keep them from painting the same picture you created.

Because that's more art than science.

Kathryn Page Camp

Is Hard Work Creative?

Creativity can be hard work, but hard work isn't creative.

So far we have discovered that you can't copyright (1) titles, names, short phrases and slogans; (2) ideas; and (3) facts. This month we will cover a fourth category: material composed entirely of information that is common property and contains no original elements. It doesn't matter how hard you worked to compile and arrange the information.

Take telephone books, for example. They are composed of public facts (names, telephone numbers, and addresses) and organized based on logic rather than creativity. Think how useless a telephone book would be if the white pages weren't arranged alphabetically and the yellow pages weren't arranged by business category. It may not be fair when someone else copies your material and reaps the benefits of your hard work, but it is not a copyright violation.*

So what about cookbooks? You can't copyright recipes, but some cookbooks contain additional material. Where this mixture occurs, the publisher copyrights the compilation as a unit but knows that the individual elements retain their status as copyrightable or uncopyrightable material.

Look at these pages in The Melting Pot: A Quick and Easy Blend of Israeli Cuisine, by Tami Lehman-Wilzig and Miriam Blum. The page on the right lists the ingredients at the top then gives instructions on how to prepare the fish dish. The ingredients are facts and the instructions are procedures or methods that, as we will discover next month, also cannot be copyrighted. So anyone can copy the right-hand page word for word.

The left-hand page, however, contains creative material. The page starts with a copyrightable photograph, which is followed by the name of the recipe (not copyrightable), and ends with text that gives a short history on how fish were used in Jewish culture. While the facts given in that history cannot be copyrighted, the word arrangement can be. Since it would be inefficient and expensive to copyright each photograph and text entry separately, the cookbook itself is copyrighted as a compilation.

Of course, these same principles apply to other types of works. Readers to this blog are familiar with the Thomas Nelson publishing house. Harper House sued it for violating a copyright in a pocket organizer.** The court held that Thomas Nelson's version of the pocket organizer contained many of the same unprotectable elements (e.g., blank forms) but had not borrowed the copyrightable text.

Join me next month when I discuss the final category of uncopyrightable material.

Kathryn Page Camp

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* Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340 (1991).

** Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197 (9th Cir. 1989).

"Just the Facts, Ma'am"

"Just the facts, Ma'am." That was Sergeant Joe Friday's standard request when interviewing victims on the classic television show, Dragnet. At least that's what the lore says. According to the all-knowing Wikipedia, Sergeant Friday never uttered those exact words. Still, he did make it clear that he wanted to hear only facts.

Even facts can be spun and distorted, but in most situations giving "just the facts" is less likely to get you in trouble.

That's also true in copyright law, and the reason is simple. Facts can't be copyrighted.

The U.S. Supreme Court explained it this way: "[F]acts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: the first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence."* Since facts are not original works of authorship, they cannot be copyrighted.

According to the cases, the following are uncopyrightable facts: telephone numbers, names, addresses, information on the current status of basketball games, recipe ingredients, quotes from third-party interviews, and historical events.

But can't you copyright a biography or other nonfiction built around facts? Yes, you can. Although you cannot copyright the actual facts, you can copyright the words you use to describe them. Those words do have to contain a minimal level of creativity, but note the word "minimal."

Biographies easily meet this test. You can't stop people from writing about Beatrix Potter's life, but you can prohibit them from using your words to do it.

Is that also true for telephone books and cookbooks and other compilations of facts? Stay tuned for next month's post.

Kathryn Page Camp

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* Feist Publications, Inc. v. Rural Tel. Service Co., 499 U.S. 340, 347 (1991).

There is 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 16th 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.

Kathryn Page Camp

Much Ado About Nothing

Are you wagging your finger at me and saying, "Shakespeare used that title, so you can't"? If so, you are wrong.

For two reasons.

First, I'm not sure they had copyrights in Shakespeare's day. Even if they did, his copyright would have expired by now.

Second, you can't copyright titles, names, short phrases, and slogans. You can trademark them, but that's a different post.

The reason is simple. The fewer words you use, the greater the chances that people have used the exact same word or word combination in the past. Copyright only protects that which is original.

Names are a good example.

When Bernard Clare discovered that his name was the title of a book, he sued.* The author had never heard of him, so Clare lost. Mark Twain used the name "Eschol Sellers" in the first printing of The Gilded Age, and an Eschol Sellers who Twain knew nothing about appeared and threatened to file a lawsuit.** Because Twain had bad luck with lawyers, he changed the name for subsequent printings rather than risk a court battle that he should have won.

While these two situations involved defamation rather than copyright infringement, they show how hard it is to find a unique name. The same is true of titles, short phrases, and slogans. This is why copyright does not protect them.

So if someone complains that you have "stolen" the title of his book, just tell him that he is making much ado about nothing.

Kathryn Page Camp

* Clare v. Ferrell, 70 F.Supp. 276 (D.Minn. 1947).

** Twain, Mark, Autobiography of Mark Twain, ed. Harriet Elinor Smith, Vol. 1 (Berkley: University of California Press, 2010), 207.

Photographers Own Copyrights, Too

Like the photo? You can travel to the Indiana-Illinois border at the southern end of Lake Michigan and take your own picture, but you can't use this one without my permission. That's because I own the copyright.

As many of you know, Hoosier Ink's new blog master has been busy updating the site and educating contributors on the most effective way to post entries. In that same spirit, I'm doing an extra blog post this month to educate contributors on the use of photographs in their posts. But others can benefit from the information, too.

Copyright law treats visual art the same way it treats the written word, and the copyright exists as soon as the image is recorded in tangible form. For photographs, that means the instant the picture is taken.

Just because an image is available on the Internet doesn't mean you have the right to use it any way you want. Copying it for your personal use, such as to give you an idea of what a character looks like, is okay, but if you disseminate the picture publicly, you have probably violated someone's copyright.

So what can you do if you want a picture to go with your blog post? Here are some suggestions.

• Use a photo you took yourself. If you don't have anything on hand, be creative and "pose" a shot to fit the post. (Just don't pose it to duplicate someone else's photo.)
• Get permission. This is easy if the photo was taken by a friend or relative, but harder if you don't know the photographer.
• Find a reputable clip art or stock photo site that offers free images. (But royalty-free does not mean free.) Read the license/permission language on the site to make sure your use fits.
• Pay a license fee. You probably don't want to do this just for a Hoosier Ink post. But if you already have a multiple-use or royalty-free license that allows you to use the picture on blogs you write for, it's an option.
• Use photographs that are in the public domain. Finding out which ones are in the public domain takes more effort than most people want to put into a blog post, however. So unless you know the photograph was taken before 1923, this may not be an efficient choice.

Creativity is our business. If you can find a creative--and legal--way to add visual interest to your post, readers will appreciate it.

If not, copyright holders will appreciate your restraint.

Kathryn Page Camp

Lesson 3: Lease, Don't Sell

You've found a publisher for your masterpiece, and you want to be sure that it remains YOUR masterpiece. That's why the grant-of-rights clause is so important.

If you sell your house, you give up control. The new buyer can remodel your "perfect" kitchen or even tear the house down, and there is nothing you can do about it. If you rent it out instead, you can restrict the tenant's ability to make changes, say how long the lease will last, and even provide for early termination if the tenant trashes the house or falls behind in rent payments. While it isn't a perfect analogy, the same is true for copyrights.

Copyrights are property, and you can sell them. You can also rent ("assign" or "license" in copyright lingo) some or all of the exclusive rights that go with them.* These include the right to reproduce your book and to distribute it to the public. I'll deal with others next month when I cover subsidiary rights.

A grant-of-rights clause establishes who owns the copyright and who gets to exercise which of the rights that come with it. At a minimum, royalty publishers expect authors to assign them the exclusive rights to reproduce a book and distribute it to the public. And they should expect that. These rights are the main thing a royalty publisher receives in exchange for taking the monetary risk from publishing the book: a risk that wouldn't be worth taking if the author could compete with the publisher.

While a royalty publisher expects to have the benefit of these exclusive rights, it can protect itself by renting them from the author; it does not need to buy the copyright. If the publisher is responsible for registering the copyright, the contract should say it will be registered in your name. Personally, I would never sign a contract giving the copyright to the publisher. That is a sale rather than a lease, and if I wrote it, I want to own it.**

This is one place where the house analogy breaks down, however. A contract that sells the copyright to the publisher may contain provisions limiting what the publisher can do with it and providing for the publisher to return the copyright to the author if certain events occur. This is how some academic publishers handle the situation. So if you do decide to sell the copyright, make sure you can live with the terms of the sale.

The copyright lease may be, and often is, for an indefinite time, but the contract should contain some provisions for terminating it. I will talk about those clauses in a later post.

If you are paying to have the book published, there is no reason to lease out your exclusive rights. You can give the publisher permission to reproduce and sell books on your behalf and to register the copyright in your name without giving up your ability to find a different publisher or distribution method any time you want.

But if you are entering into a contract with a royalty publisher, you will have to give up some of your rights. That's just the way it is. So what do you look for when deciding whether to sign a particular contract?

For me, it's as simple as "lease, don't sell."

Kathryn Page Camp
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* The term "exclusive rights" is misleading, because the law allows certain fair uses. Absent a fair use, however, these rights belong exclusively to the copyright holder unless the copyright holder assigns them to someone else.

** The one exception is a work-for-hire, which I talked about in my November 25, 2010 post.