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.

* * * * *

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.

Every Minute Counts

My children are deep into the Half-Price Books summer reading program where the Top Reader is determined by the number of minutes read over the course of June and July. In seeking the grand prize of a $20 gift card (think of all those glorious books!), they know that every minute counts.

As of July 14, these are the tallies of minutes read since June 1 ~

13yo ~ 5,850 minutes

11yo ~ 5,170 minutes

9yo ~ 2,675 minutes

7yo ~ 890 minutes

4yo ~ 670 minutes

2yo ~ 590 minutes

While life as an adult has prevented me from amassing these amounts of minutes, I, too, have been known to sneak in minutes of reading…while stirring supper, brushing my teeth, sitting in line at the ATM. I even tried reading while driving when I was in college, but that’s not exactly conducive to concentration on the printed page.

But what about with writing? What if I snatched and sneaked and stole every spare minute for writing?

What if I jotted down a bit of dialogue whenever I passed my computer…a bazillion times each day?

What if I brainstormed ideas for setting while rolling biscuits and then wrote it out during the ten minutes of baking?

What if I made mental notes for character names and quirks while picking up after the two-year-old and then scribbled them out as he pulled all the toys out again?

What if I moved my laptop to the dining table and, in between discussing O. Henry with the eighth grader and diagramming sentences with the sixth grader, I added a few sentences or even paragraphs to my WIP?

What if, while my husband watches yet another Arnold Schwarzenegger movie, I sit next to him on the couch and research a few details?

What if, instead of quizzing the fifth grader on insect heads, abdomens, and thoraxes (Blech!), I edited my chapter five? Well…we do need to fulfill our commitments, don’t we?

Sigh.

When my moment comes and I get that call, I want to be ready with bunches of books and fleshed-out ideas.

Every minute counts.

Q4U: How do you make your minutes count?

Meghan Carver is a 2013 ACFW Genesis semi-finalist and the author of several articles and short stories. After achieving a Juris Doctorate from Indiana University and Bachelor of Arts in English Literature from Millikin University and completing a brief stint in immigration law, Meghan heard God calling her to be at home. Now homeschooling her six children with her college professor husband, Meghan has returned to her first love of writing. She blogs about homeschooling and homemaking at www.MeghanCarver.blogspot.com.

Three Cheers for Anonymous

by Rachael Phillips

 

If there’s one thing I love, it’s to see my name on the cover of a book.

You, too?

Neither of us would object, either, if our names outsized the titles of the books, sure signals that our literary babies, regardless of title (The Love Song of the Garbage Man? Vampire Recipes?) have hit The New York Times Best-seller List.

Yet some of the most famous literary works in history were written by people whose names have never appeared in Publishers Weekly, ancient epic poems such as Gilgamesh and Beowulf, and stories like Arabian Nights. Think of the long-term marketing opportunities those authors missed. Not to mention, the royalties.

The Bible itself embraces numerous works written by “Anonymous,” including some of my favorite Psalms and the book of Hebrews. Not surprising, I suppose, as the Bible teems with unnamed God-followers who thumbed their noses at earthly “immortality” and instead, imprinted His name on history.

All of us, for love of Jesus, have written or edited anonymously at one time or another. We've banished lousy spelling and offending apostrophes from congregational song lyrics, bulletins, and signs; rewritten church holiday programs and VBS skits that feature Dick and Jane; and slogged through eager friends' and relatives’ manuscripts that make us want to disappear into the Writer Protection Program.

Though no spotlights shine on us for such service, and our names may be forgotten on earth, they will show up one day, shiny and indelible, in the book that really counts.

The Book of Life. 

 

 

 

          

The Faster I Go, The Behinder I Get! by JoAnn Durgin

Ever heard the expression, “The faster I go, the behinder I get?” That’s how I feel sometimes. I’ll admit in the last year, I’ve started to feel older, physically as well as in other ways. Granted, my schedule is full and active and I’m still able to get most of what I’d like accomplished each day. . .except for the one thing I want to do most. Write. As recently as three years ago, I could stay up until almost 2:00 a.m. every morning writing or editing (I could tell time by the old television comedies that kept me company). Now, I need at least five hours sleep or I can’t function in my rather demanding, full-time day job. Well, I can function, but certainly not as well as when I have more sleep. I’m also craving more vegetables, trying to get more exercise and being more faithful in taking a daily vitamin supplement. I’ve finally started to face the fact I need to give my body what it needs in order to stay healthy and function better in all phases of my life, including my writing.

I’ve also lost a few friends my age in the past year or so. I’m in my 50s, not my 80s. These losses have also brought home the hard truth that my life as I know it will one day cease to exist. Of course, knowing where my future lies in an eternity with the Lord is an unbelievable comfort, and I can’t even imagine living without that hope I have in a risen Savior. But I also understand each book I write could potentially be the last one. I’m not being morbid, just realistic. Simply put, our written words need to count. Whether it’s in an e-mail, in a blog post or in a book, we never know what seeds we might plant or how our characters or stories might impact or affect someone’s life for Christ.

Recently, I’ve seen something interesting happen with my books. I’ve had a few women on Goodreads rate my books—with varying results—who’ve never read a Christian book before. Let me qualify that statement. Women whose favorite books are, well, decidedly not inspirational in a Christian way and, quite frankly, fall under the “smut” category. You know the books I mean. At first, I was shocked and wondered, “How on earth did they find my books?” One woman said, “Your books were the first Christian books I ever wanted to read.” Another said, “I wanted to believe a man like the hero in your book existed.” One more said, “The covers are really pretty and made me want to read them.”

My first reaction to one especially low rating from one such reader was to get a little steamed. But then, as He always does and for which I’m so grateful, the Lord got hold of me. I searched my heart and He helped me see the truth. Why am I writing? For myself? For good reviews? What’s my purpose in writing these books? Yes, it’s my overwhelming passion to write, and I’m blessed to be able to do what I love. However, I can admit the joy would be drained from me if I couldn’t weave spiritual truths into my books. What would be the point? To me, they’d be empty words.

I’ve often heard it said that if you take the spiritual components out of a romance and it can stand on its own, then it’s not a Christian romance. My books would absolutely fall apart without those elements. There are some who believe you can’t draw readers who aren’t believers to read a faith-based book. I disagree, in large part because of my own experience as an author. My books are clearly labeled as Christian romance and the descriptions also label them as such. Granted, I don’t have non-believers in droves rushing to buy my books, but they’re not “watered down” in terms of a strong Christian message. Redemption, grace and forgiveness are huge themes I always touch on in one way or another in my writing.

The bottom line? If I’ve touched one reader with a spiritual truth she might remember somewhere in the pathway of her life, then I’ll have done my job. The way I look at it, we have a responsibility to share our faith, as the Lord commands, and what a joy it is!

Blessings,

JoAnn Durgin

Matthew 5:16

Therefore go and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything I have commanded you. And surely I am with you always, to the very end of the age. Matthew 28: 19-20

WARNING: Toxic to Writers

My youngest son is on a live-off-the-land kick. He’s cutting timber to build a wickiup, filtering his own water, and most interesting of all--to him--trapping and cooking his own kill and gathering his own greens to accompany the feast. But those greens are tricky. Which ones are toxic? It matters.

And that got me wondering: what’s out there that poisons writers and their writing? Here’s a deadly sampling to beware





Pride
Self-centeredness
Discontent
Disconnectedness
Laziness
Lethargy
Ignorance
Comparison
Fear
Discouragement
Despair

I've tasted them all but find Psalm 90 a potent antidote that not only clears my thinking but also orders my loves.

Lord, you have been our dwelling place in all generations (v. 1).

From everlasting to everlasting you are God (v. 2).

For a thousand years in your sight are but as yesterday when it is past,
or as a watch in the night (v. 4).

You have set our iniquities before you,
our secret sins in the light of your presence (v. 8).

Who considers the power of your anger,
and your wrath according to the fear of you? (v. 11).

So teach us to number our days that we may get a heart of wisdom (v. 12).

Satisfy us in the morning with your steadfast love,
that we may rejoice and be glad all of our days.
Make us glad for as many days as you have afflicted us,
and for as many years as we have seen evil.
Let your work be shown to your servants,
and your glorious power to their children.
Let the favor of the Lord our God be upon us,
and establish the work of our hands upon us;
yes, establish the work of our hands! (vv. 14-17).

All references from the ESV.