Three points to help you avoid infringing when using popular source material

Every year, new versions of classic tales reappear in popular culture. Sherlock Holmes showed up in both movies and television. 2013's breakout surprise hit TV show was based on Washington Irving's "The Legend of Sleepy Hollow". And since the stories and characters upon which these hits are based are often themselves in the public domain, you might be tempted to create your own retellings of these tales too.

You can, but you need to be careful.

In a prior post on the character of Sherlock Holmes I made two important points about using pre-existing characters:

1. Where there are portions of a character in the public domain and portions that aren't, it's permitted to fork the characters to use only the public domain elements.
2. Forking characters in this way doesn't infringe on the rights of a copyright holder who might own non-public-domain elements to those characters.

But what may not be clear is how you can take a public-domain character and make them your own creation such that no one else can use your version of them, and in contrast when you're making too close use of someone else's version of the characters. A recent judgment from Canada gives us 3 good rules to help you make that decision.

The Apple e-books litigation post #1: why did it happen at all?

Although the Apple e-books judgment is a few months old, its consequences haven't yet begun to be fully understood. Tthis judgment starts to rebalance the playing field away from bottlenecks and distributors and toward individual content creators in several fundamental ways.

To understand the significance of the judgment, it's necessary to know what it does (and doesn't) say. And it's 160 pages, so bear with me because I'll have to break this into several parts...

Three not-so-elementary tips for using pre-existing characters, my dear author...

Being the start of a new year, January 1 (yesterday) saw a whole new set of works come into the public domain. And as that happens, some authors may want to use their characters for their own purposes. But if those characters are used in multiple works and not all of them are available, you might think you can't. Certainly the rightsholders for the later works will want you to think so. Are they right? A recent judgment on Sherlock Holmes gives some insight into this far-from-elementary question.

In its response to the Plaintiffs' amended complaint, Harlequin has nothing new to say

I've had a copy of the Harlequin response to the Plaintiffs' amended complaint in their motion for a class action in the e-books litigation, and I haven't been able to motivate myself to write about it for one simple reason: they had nothing new to say.

I've only found one item that even bears mentioning, and even that one can be dealt with quickly.

Two reasons museums charge for reproductions (and one consequence)

By way of The Digital Reader, I've just read an interesting article that I think misses a very important point. That point leads to two of the bigger and related themes I'll be exploring here in 2013, as well as one of their consequences.

The article, linked below, laments that many famous works of art aren't available in high-res and so they can't be used in teaching. It sets forth the reason for this as being because museums are overreaching, using their legal rights of control over the environment where these works are stored, or the license terms of their own photos and the websites where they are displayed, as a way to stop otherwise-permitted reproductions of works that would be in the public domain. (I'm oversimplifying but I don't think I'm changing the thrust of the piece; read it and make your own decisions.)

Yes, if it wasn't for copyright and the control it gives over images and reproductions the museums wouldn't be able to stop this kind of thing. But that's putting the cart before the horse.

Harlequin plaintiffs bring new allegations, improve their case

[NOTE TO READERS: It's been a while since I've posted. Thanks for coming back.]

On November 2, 2012, the authors(*) in the Harlequin class action upped their game against Harlequin. If they're wrong, they will lose their class certification request. But if they win, they will find themselves making a point that will have repercussions far beyond just e-publishing and authors.

How does the HathiTrust book-scanning judgment affect e-books and audiobooks?

Scanning copyrighted works and making them searchable on the Internet sounds to many authors like it shouldn't be legal. But on October 10, a Federal Court in New York released a judgment holding that may be. That judgment raises significant issues for authors, publishers, and consumers, giving new scope to fair use of copyrighted materials in the USA.

Three reasons Harlequin shouldn't get to have the e-books litigation dismissed

On October 19, Harlequin filed a motion seeking to have the e-books litigation dismissed. They make a lot of interesting arguments. Their lawyers are earning their money. But ultimately these arguments collapse onto themselves. This motion should lose.

Penguin sues authors to recover advances

On Tuesday, Penguin decided it was finished with the book publishing business.

That's the only way I can interpret recent litigation developments from Penguin, which decided to sue a group of authors to recover advances paid for books that were never published.

The list of authors as reported includes some pretty significant names, such as Elizabeth Wurtzel, author of "Prozac Nation", and Ana Maria Cox, ex-editor in chief of the Wonkette political blog.

I've previously written a series of posts on book publishing (links below) and whether a publisher can sue authors to recover an advance is actually pretty well-traveled ground. The rules are pretty clear:

• If the author fails to deliver an acceptable manuscript the publisher can get the money back.
• If the publisher decides not to publish for other reasons even though the manuscript was acceptable the publisher can't get the money back.

(I'm trying to get a copy of the Complaint because I also can't figure out how Penguin can sue all of these same people, who would appear to have nothing in common with each other, in one lawsuit. For technical reasons that's usually not possible.)

But put aside the legalities for a second and let's just focus on the craziness. Any time a publisher pays an author an advance, the publisher is taking a risk. In one view, a publisher paying an advance is basically making the following bets:

• This person will be able to produce a manuscript that we will want to publish.
• The advance we will pay (using a calculation similar to the one I've set out in a previous post) will not exceed the amount of money we should have paid.
• If the advance does exceed the amount of money we should have paid, it's still worth it to have this person for other reasons (e.g. we become popular with authors).

Focus on that last bullet for a second. Paying good advances makes a publisher popular with authors. The more popular a publisher is with authors, the more other authors want to publish with them. So question: why would any publisher risk its reputation with the author community? Especially, as Elizabeth Wurtzel pointed out when contacted by Above the Law for comment on this litigation, when the amounts at issue are relatively small?

It just doesn't seem to make any sense.

I'll be back with more updates in the coming days and weeks, no doubt.

(Thanks to Nate Hoffelder of The Digital Reader for the tip)

LINKS:
Legal Minimum posts on book publishing including: publishers rejecting manuscripts, whether authors have to give back advances, etc.
http://bit.ly/LjV4MC
Legal Minimum post on calculating royalties and determining the right advance:
http://bit.ly/Nwz9F3
The Digital Reader (follow this!):
www.the-digital-reader.com
Smoking Gun article about Penguin lawsuit:
http://www.thesmokinggun.com/buster/penguin-group/book-publisher-sues-over-advances-657390
Above The Law article including responses from Elizabeth Wurtzel and analysis:
http://abovethelaw.com/2012/09/lawsuit-of-the-day-penguin-v-wurtzel-and-other-authors/

By settling in Europe, did Apple and the e-book publishers admit liability in the USA?

I've written a fair bit about the Apple e-books litigation, but I've focused on the US mostly. But that's not been the only place they've been called to the carpet. The EU Competition Commission had its own concerns and launched its own inquiry.

On September 19, Apple and 4 e-book publishers reached a settlement to resolve the EU issues. Similarly to the USA, the EU has opened the proposal up to public comments. And the terms of that proposed settlement are telling for what will happen in the USA as well, for one very important reason:

Author's "Carnival of Souls" mark takes reviewers on a not-so-fun, and unnecessary, ride

I've spent some time this afternoon reviewing the Complaint in Jazan Ward's claim against HarperCollins over the Carnival of Souls and Enter the Carnival trademarks. And although I'm not sure he'll succeed, it's by no means the craziest thing I've ever seen. As for his complaints against the bloggers, there I'm not so convinced, and it's quite possible he may wish he had never tried anything.

For those of you who don't know what I'm talking about, an author of graphic novels named Jazan Ward has brought a claim against HarperCollins claiming that HarperCollins' new series of novels called Carnival of Souls infringes a trademark he has registered in those same words. Using various legal theories he wants to have HarperCollins change the name of the series and pay him damages for infringing his mark. Recently Ward has also started to send cease and desist (C&D) letters to various book bloggers and other reviewers telling them that they can't review the Carnival of Souls books because by doing so they're promoting a property that infringes his mark.

This claim may sound like it's crazy. It's not. At least not necessarily. And in fact, there's one particular part of the lawsuit that should be very interesting to small developers or indie authors who may find themselves up against a big media enterprise. But going after the reviewers is a different story.

A fresh analogy for file-sharing: the tomato

Sometimes a cigar is just a cigar, but sometimes a tomato is a piece of music. Did that make any sense? After reading the article linked below, it just might. And even though I think the analogy doesn't work perfectly, it leads to some very interesting perspectives on digital downloads and content creation.

The instructive comparison in the article is this: people say that digital content is a totally new type of thing because it can be reproduced forever without depriving the original owner of the original item. (The technical name for this type of copying is "lossless".) But that's not true. There's another type of thing that can be copied forever in a lossless fashion.

One simple reason I've ignored the paid reviews scandal

Reputation is an idle and most false imposition; oft got without merit, and lost without deserving.

(Othello, Act II, Scene 3)

Shakespeare could make an entire tragedy out of what happens when you're so focused on your reputation that you lose sight of what's really important. It seems that at least some authors may have fallen for the same trap, buying their way to a good name without earning it.

If you've been living in a cave for the past couple of weeks you may not know what I'm talking about. I'll explain.

Judgment in the Apple e-books settlement: DOJ 1, Publishers 0

On September 5, 2012, Judge Denise Cote entered an order approving the settlement between the DOJ and 3 of the 5 publishers in the Apple e-books litigation: Hachette, Simon & Schuster, and HarperCollins. And on every count, it was a clear win for the DOJ. Maybe not just for today.

Bob Kohn submits brief #2 in Apple e-books litigation. It's comical

Literally. Having been limited to 5 pages by the Court, he prepared a 5-page comic that summarizes his position frankly better than any text could have. I still don't know that I agree with his assessment, but it's worth a read.

EDIT: Apparently the link is 403 so I'll link to the American Bar Association Journal story on this and you can go from there.


LINKS:
Link to the brief:
http://www.abajournal.com/files/AppleAmicusBrief.pdf
Link to ABA Journal:
http://www.abajournal.com/news/article/faced_with_a_five-page_limit_lawyer_files_cartoon_amicus_brief_with_proper_/Thanks

Avoiding option clauses and cross-collateralization by using LLCs

A short post today, but hopefully a helpful one.

I've recently seen people complaining of two standard problems with traditional publishing contracts:

• Option clauses: where publishers require you to give them an option on your next book.
• Cross-collateralization: where publishers won't pay you royalties on your first book until you've paid back the advance on your second.

It seems to me that there's a very easy way around each of these problems.

Why tied selling rules give the DOJ a knotty problem in the Apple e-books litigation

Do you have to sell me your house just because I asked? If you think the answer is yes, you may have something in common with a problem the Department of Justice will have in the Apple e-books litigation.

Although price-fixing gets all the headlines, another antitrust issue called "tied selling" is pretty important too. Tied selling occurs when you link two items together into a single transaction. There's nothing wrong with that in principle, but intellectual property raises all sorts of complicated issues because of the exclusive rights of an owner.

Why is it okay for you to set your own price but not for Apple or a publisher?

Setting your own price for your books seems like the most logical thing in the world. The $0.99 and $2.99 book price points are widely-used by authors to make money, and the free promotion days are like gold. But the Department of Justice has sued Apple and the e-book publishers for making this possible.

Why are these companies being charged with a criminal offence for doing something that thousands of authors now do every day?

Five questions that may explain some aspects of the Apple e-books litigation

As I've been reviewing the documents and the posts around the Web on the Apple e-books price-fixing litigation, I've seen a few things that it seems people don't understand. To help give some background I'll explain so that you can have an easier time following this important litigation.

First a summary for those of you who don't know the full allegations. The Department of Justice is alleging that 5 major publishing firms: Hachette, HarperCollins, Macmillan, Penguin, and Simon & Schuster, along with Random House who isn't charged, all wanted to break Amazon's $9.99 pricing for e-books. At the same time Apple wanted to get into the e-books market, and offered to the publishers that it would allow them to set their own pricing for e-books so long as the publishers ensured the same e-books wouldn't be available cheaper elsewhere. According to an email from Steve Jobs quoted by the DOJ in its Complaint: "yes, the customer pays a little more, but that's what you want anyway." The DOJ has brought charges against these six companies for violating the US antitrust laws.

1DollarScan, Cablevision, and two reasons you can't always get what you want

Books are portable. But one company wants to make your books even more portable than they already are. So why is the Authors' Guild so angry about it, and do they have any right to be?

In an interesting deal announced last week, a service called 1DollarScan has closed a partnership with Evernote to take your physical books, scan them, drop them into your Evernote account, and then destroy the original copy you sent them (it would appear that it actually gets destroyed as part of the scanning process). 1DollarScan apparently already had deals with services like Dropbox and some others. But linking to Evernote, one of the most widely-used note-taking services out there, appears to have brought a lot of attention to 1DollarScan, including some it may wish it had never attracted.

According to Publishers' Weekly, the Authors' Guild has made some statements that 1DollarScan is violating copyright law and infringing the author's right to choose whether their book should be made available digitally. Unpacking this statement gives me a chance to look at two often-misunderstood issues around content creation: whether making copies breaks the law, and why media companies don't think like people.