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(Why’d you delete them, thought? DIdn’t want to confuse people? Sydney’s posts are gone, but your reference to them isn’t)
Deborah, because someone besides Steve wrote them, and even though they were good, they were copyright theft and I couldn’t let that stand on my site. Steve thought they were good as well and he took them in the spirit I’m sure they were intended, but the moment I knew Steve York hadn’t written them, I knew I had to pull them down.
I confess. I impersonated Sydney. My bad, Dean!
Ahhh, Brad. Didn’t Kris and I teach you to write your own stuff and never, ever use another writer’s characters unless hired to do so?
Lesson learned. Luckily, Steve thought you did a pretty good job and wondered if his cat had been typing at night. (grin)
It’s also why I can’t use anyone’s comments here in my book. But I will do a section behind each chapter talking about the points brought up in discussion after each chapter. That way I figure the readers of the book can also get the “flavor” of the comments and if they want to read them can come here and scroll back and read the actual author comments. But I can’t use them because I don’t own them, didn’t write them.
Caution, folks. Copyright is critical in this business, even on-line.
Ah. Ok. I wondered why Sydney had suddenly switched to Haz a corm lingo . . . Never dawned on me that was the reason.
Totally understand why they vanished in that case.
Speaking of copyrights, Dean, would it be worth the effort, or would you even want to, get permission to use some of the comments? Or is it just safer and easier to avoid the issue altogether?
Brad, fan fic gets done online, but oh, trust me, it’s not ignored by any copyright holder. It’s allowed as a limited non-exclusive use only as far as not making any money, but the moment any fan writers tries to make money on it, the Trek or Star Wars or whatever copyright holders come crashing in hard and fast, so fast that most folks don’t even know something has gone missing. It’s an uneasy balance that exists as a “promotion” feature, nothing more.
But basically, remember, you write something, you own it. You use another character of another person, you stole it. That simple. Always write original stuff unless hired by the copyright hold to do otherwise.
Deborah, nope, I would rather not even try to get permissions. I can paraphrase the comments and answers and send people right here with links to read the originals much, much easier. It’s a wonderful new world that way.
Glad Steve got a grin out of a little LOLcat fan fic. But the point about copyright is received, loud and clear. I suppose if I’d thought of Sydney as a combo of pen name and character, belonging to the Yorks, I might have thought twice.
Which brings up a question: how come everyone currently writing fan fic on the internet is able to get away with it? Is it simply a matter of it not being worth a lawyer’s time to go after fan fic writers, as long as they’re not trying to sell their work?
20 years ago, fanfic was all I knew how to write because it hadn’t yet occurred to me to create my own characters and universes. I did mostly Star Trek and some Max Max ‘The Road Warrior’ stories, posted to dial-up boards. It was a lot of fun, and probably I learned a little, though obviously I was grossly ignorant about copyright.
When I think copyright violation, I think people making money illegally. As long as money isn’t involved, I never believe anyone’s going to give a damn? Time to adjust my thinking, I guess.
Still, as the first fan fic I’d done in ages, it was entertaining to put on the Sydney persona for a few minutes. Uspeshly wen wee tok abut teh ajintz.
But motive for profit has nothing at all to do with copyright violation. Copyright is about ownership, not profit, and that’s why profit is not the measure of whether it’s been violated or not. (It’s rather like degrees of wrong — 1st degree murder, 2nd degree, etc — so that violating copyright is bad enough, but violating it with an intent to profit is even worse.) That’s one of the biggest and popular misunderstandings/misconceptions regarding copyright, that if you violate copyright without intent to profit that it’s okay. Wrong. It’s never okay to steal, regardless of your motive. Even the copyright notifications that come up on DVDs, Blu-rays, and the old VHS tapes before the movie starts certainly say as much.
I would venture to guess that what really matters is whether or not the copyright owner chooses to enforce their copyright when a motive for profit is absent. And if that’s the case, then the owner has to be prepared for the consequences of the precedent they’ve set if they later choose to change their mind. Meaning that the courts might very well side with those accused of violation if profit motive was absent and the owner allowed that to happen in the past. (In other words, if you don’t want someone violating your copyright, even without a motive for profit, then you had damned well better take that stand right from the start and be consistent about it.)
I seem to recall reading something similar a couple of years back regarding fanfic, unless I misunderstood. I forget which writer was involved in the incident I read about.
I’ve had friends who’ve had online artwork stolen and then used by someone else to promote their business, even though copyright notification was clearly marked on the artwork. The owner admitted that they wouldn’t have minded if they had been asked, but the thief didn’t even grant them that courtesy. Others who learned about this said that because the artwork was so good — and it was quite good, actually — that they would’ve considered it a compliment. When I chimed in with my two-cents, I started off by asking them exactly how stealing could be seen as a compliment? Would they consider it a compliment if I broke into their house and stole their 46″ flat screen TV? Clearly not.
And then there are the numbskulls who see copyright law as somehow limiting creativity and they want to have the law changed altogether, even to the extent of limiting the creator’s income from their work to something like 7 years (and then have it go into the public domain). These are people who obviously have no idea how creative people earn their living and all they want is to steal from others because they haven’t a single creative blood-cell in their body. Their brains are mush and they’re sucking up precious air that the rest of us could use.
Or, you’ve got nincompoops like Nancy Stouffer suing J. K. Rowling, claiming that Rowling violated her copyright. I lived in Pennsylvania (where Stouffer’s from) when that nonsense was going on. Stouffer had/has no clue about copyright law. She may have had a Larry Potter and muggles in her story, but names, like ideas and titles, cannot be copyrighted. You can check it out at http://www.copyright.gov (lots of good info there; a complete education in copyright law). (You can trademark a name, but you can’t copyright it. Trademark law and copyright law are two different beasts.) I even read some of Stouffer’s stuff online before she pulled it all, and there was no similarity whatsoever between her stuff and Rowling’s. One of her idiotic claims, for example, to prove that Rowling had stolen her work, via Scholastic, was that Rowling had a wooden door inside a castle. And what else, pray tell, would they be made of? Trivial crap.
You can correct me if I’m wrong, but I’m pretty damned sure that my understanding of copyright is correct.
I feel like I very nearly channeled Harlan Ellison with that outburst (although I know that it was quite tame compared to Harlan). LOL! Just watched a documentary on Harlan, also starring Robin Williams. I thought Harlan was hilarious!
I wrote: In other words, if you don’t want someone violating your copyright, even without a motive for profit, then you had damned well better take that stand right from the start and be consistent about it.
Let me clarify what I mean above.
In the fanfic incident I referred to I recall that it was noted that if a writer did not object to fanfic then they had set the precedent that it was okay for fans to do so, so long as it was not without profit. If they later wanted to prosecute someone creating fanfic, even though it was done without profit, then they’d fail as they had already given consent to such things by their previous actions.
On the other hand, if a writer objects to fanfic period, then they’ve conceded nothing and can prosecute.
But in all cases fanfic is wrong if done for profit.
Again, if I’m wrong, correct me. (The name of the writer in question in the incident I’ve cited still fails me, but I recall that it had no relation at all to Star Trek or Star Wars.)
G.D., you are right in principle. Using someone else’s work for any reason is theft. Period.
However, under the copyright act, in most circumstances, there has to be a way to show harm and profit to mount a case. Not all circumstances, but most.
And not all use is theft, of course, if the use falls under one of the exceptions, such as education or fair use. Again, very, very set guidelines and I am talking very much in general here.
I agree it is never okay to steal copyright for any reason. But allowing Fanfic DOES NOT lose you the chance to sue under copyright law. You never lose it. However, under Trademark law, there are provisions that force defense or loss, but they are fairly clear as well. But by allowing fanfic, you are not waving any right to sue. Allowing someone to profit from taking your work and knowing about it has at times been deemed to be permission but not all the time.
Also it matters when there is an infraction if your work is registered or not as to the hoops you have to jump through to prove damages. If registered before the infraction, you can get damages without proving actual or punitive damages. That’s why if anything is going into Hollywood, you always register it. They steal a great deal down there. In New York there is almost never theft. No reason to.
So folks, defend your work is the right attitude. Don’t allow anyone to take it and the moment you know about it, snap down on them. Professional lists are constantly shutting down theft sites by simple reporting the thefts to the legal departments of our publishers. Never hurts to bring in the big guns.
Cheers
Dean
This reminds me of the discussion — from my community radio days — regarding the practice of home taping. Long before MP3 and digital audio theft became a problem, there was a great deal of concern in the music industry that home tapers — people who recorded music off the airwaves and then re-recorded that music onto custom “mix” tapes — were killing the profit margin. Instead of buying music at the record store — hah, remember when we used to call it the record store? — people were getting “free” music for use in their car and home cassette players, and the artists (cough) I mean, the record labels never saw a dime.
Of course, radio was the single biggest way for labels and artists to gain exposure — prior to the internet. Especially public and community and college stations, where the off-label bands and up-and-comer bands and the genre artists tended to thrive. Without radio, nobody would know that any of this music even existed. But because of radio, people could also “home tape” and theoretically never have to spend a dime, beyond buying packs of blank cassettes — damn, I am on the wayback machine now, you couldn’t even rip or burn compacts discs back then.
Dean, regarding registration, what does that mean in fiction terms, exactly? I just got done doing a post at my own blog where I warned aspirants against slapping COPYRIGHT and scary symbols all over their manuscripts, because natural copyright was implicit in the creation of the work, and the chances of someone “stealing” a manuscript on spec at the magazines and houses was less than that of being hit and killed by falling satellite.
I personally don’t think I’d mind fanfic at all — as long as the people writing it weren’t getting money as a result. I’d probably treat it as free advertising and not just a little fannish flattery, and I’d probably try to contact such writers and let them know I was paying attention. In a friendly way, naturally, but also unsaid: I am aware of you and you need to be careful how you proceed. If I thought they were talented and proficient, I’d probably start egging them on to produce their own indendent stuff — as was done with me many years ago, and thankfully so. Anyone who is doing good, entertaining fanfic could probably just as easily convert over to original fiction without too much of a headache.
One more thought, on home taping. Once it became easy to rip/burn compact discs, I noticed a few acquaintences had whole libraries of essentially stolen music dominating their shelf space at home. That always seemed rather trashy to me, as it basically sent the message that while the person in question might have loved the music, that person also had no respect for the musician, as they couldn’t be bothered to support that musician through honest purchasing.
I suspect that as e-publishing advances, the same will be true of books: people with e-readers chock full of “ripped” novels, none of them paid for, and people not thinking twice about the fact that when you “rip” any kind of intellectual property, you’re not necessarily upholding your end of the artist-consumer bargain.
Having said that, once I purchase music, I tend to “rip” it at will for my own use — no more mix tapes or even mix discs, now that I have my little $20 Coby MP3 thumb unit!
Back to fiction, I once submitted a partial on a role-playing book to a substantial game publisher, only to get a very interesting “contract” that basically said: this is not a promise to publish, but you are forfeiting all rights to the work in question, and cannot sue in the event that if anything we do publish just happens to be similar or the same to your submission, we cannot be held liable. And so on, and so forth. Needless to say I didn’t sign. I know the game company was just protecting its patents and trademarks and so forth, but it sounded to me like I’d be handing over all my leverage with no promise of any monetary compensation for my effort.
Which is, I suppose, why doing any kind of “shared property” fiction on spec is one loser of a bargain — sometimes for both parties?
Popular British metal heads Iron Maiden are going through this right now, in fact. Some comic book creator is trying to release a comic called Iron and the Maiden – the logo of which looks pretty damn close to the band’s.
The band is suing. It is not so much an issue of money, but the band needs to be damn sure they fight any perceived violation of copyright so that there is no precedent for stealing from them that a more serious challenger could use against them.
When you work hard to develop something it only makes sense you would want to defend it.
“Which brings up a question: how come everyone currently writing fan fic on the internet is able to get away with it? ”
Same reason that agents and publisher get away with some of their bad behavior. Because it can be REALLY expensive to put a stop to something; keep in mind that lawyers charge $100-$450/hour. Moreover, in most copyright violation, there’s little realistic hope of getting your own legal fees covered in the settlement, for a variety of reasons, let alone getting damages. Mostly, you spend a LOT of money in an attempt to get a single instance of copyright violation to cease. (I am currently spending money on a lawyer to deal with a publisher that released an electronic edition of a book of mine to which it did not have rights. I will be STUNNED if my fiscal recompense from this matter even covers my legal fees, even though–unlike that vast majority of fan-fiction lawsuits, where the violators are young people–my legal complaint is against a large corporation.)
Most of the time, writers look the other way if fans are CHARGING FOR or making a fiscal profit from the copyright violation. It would jsut be too ruinously expensive to do otherwise. Once MONEY is involved, though, a writer essentially has no choice–the level of violation has escalated to a more serious level, and now a failure to prosecute could be interpreted by the courts as tacit permission for anyone who feels like it to steal ANY of the author’s work and profit from it. But in terms of the scenario of most fan fiction, where money is NOT involved, most writers get sufficient legal protection by issuing public statements saying they do not allow use of their own material in fan fic.
“ost of the time, writers look the other way if fans are CHARGING FOR or making a fiscal profit from the copyright violation.”
ACK! I meant, if fans a =NOT= charging for, etc.
The comments about trademark vs. copyright reminded me of something I read about quite a while back. Much of the media was portraying Disney Corp as a HUGE MEANIE for daring to defend their Mickey Mouse & Friends trademarks from being used without permission. It was either in a pre-school or a pediatric hospital and people were badmouthing Disney for daring to have the audacity to sue, for being a bully, etc.etc.
And not that many people were listening at the time, but Disney reps explained (not that they needed to defend themselves) that they *had to* protect their trademark *every time* or it became null and void.
I know you don’t have to register a work to copyright it, but it’s also true that registration gets you greater protections, especially in terms of the punitive damages that you can sue for when someone violates your copyright.
I wasn’t, of course, denying Fair Use. The doctrine of Fair Use is also another area that many folks don’t understand. Generally speaking, you can quote something like 500 words without asking for permission, but that’s 500 words total from the entire piece, not 500 words in this quote and then 500 words in another quote. If the piece is very short, however, like a short story or a poem, it’s far better to ask for permission first since almost any size quote is going to be a major portion of the work quoted. It’s not at all difficult to get permission, either. I’ve done this for quotes I’ve used in non-fiction articles I’ve had published, and everyone I’ve asked has always been willing to let me quote them. I also make a practice to send the person a copy of the article, too, so that they can see how I used their work. I see that as common courtesy, but I also think that a person not only deserves, but also has the right, to see how their work is used when quoted.
One last thing: It’s my understanding that when a short story is published, the copyright info in the magazine is simply a pro forma statement. The author has to actually register their work with the copyright office to get those greater protections — and you can save on the registration fees by registering several works together. With book length works, though, I’ve heard/read that the publisher does register the work for the author.
Regarding book length works, however, I’ve a question: I’ve seen that some authors have their works’ copyright registered under a corporation name. How does that work? Do you just tell the publisher the name of your corporation? Or do you have to register it yourself if it’s registered in this fashion?
Caution, G.D., you have some basics, but you are slightly off in a number of places. The Copyright Handbook by NoLo Press is a great book. Latest edition.
I like your statement about always asking permission. Much, much safer. And never use any part of a poem or a song lyric. Unless you made up the song or the lyric. Basically not allowed under fair use. Basically.
Lots of law about magazine registration of entire issues and their coverage of stories. Cases have held that it serves most of the time. Again, a great deal of “it depends” involved there.
But for those of you out there who know nothing about copyright, you don’t have to register to be protected. It’s automatic when you write it for your life plus 70 years.
Corporations are 70 years from publication. If you sign over (again, a property right) your copyright to your corporation, and then list it as a corporation, there are all kinds of case law on that, but more often than not there has to be a major paper trail between you and a corporation to lose the 70 years past your life protection you have automatically.
Author corporations are not often owners of the copyright, but are leasing it for accounting issues, but the copyright is listed in books under the corporation name for the record. Doesn’t always mean the corporation owns it.
In other words, think of it this way. Author creates work. Author is sole stock owner of a corporation which is like another person. Author signs over to corporation just the amount of rights needed for the corporation to sign over those same rights to a publisher. So Corporation owns the rights quickly sold to a publisher, but author still owns all the underlying copyrights on the work. All done for accounting and taxes.
And no, I am not getting into taxes here. Talk to an accountant, a creative properties accountant, not some Joe accountant down the street from you as to why this might even be a good idea. But rule of thumb, be making close to six figures yearly before thinking of doing a corporation.
“It is not so much an issue of money, but the band needs to be damn sure they fight any perceived violation of copyright so that there is no precedent for stealing from them that a more serious challenger could use against them.”
Precisely. In any instance when the artist fails to defend his copyright, he sets a precedent whereby the court may decide he has willingly -surrendered- some of his rights over his own property.
“And not that many people were listening at the time, but Disney reps explained (not that they needed to defend themselves) that they *had to* protect their trademark *every time* or it became null and void.”
And, again, yep. Precisely.
This is why although, in terms of the marketplace and the writer’s ability to make a living, the existence of most fan fiction is largely irrelevant, a writer with any sense nonetheless comes out strongly and publicly against it. (However, since fanfic is created by fans, not enemies, it is also best to be extremely -tactful- when taking a stand against it. The point is not to belittle or accuse; the point is to protect one’s own property.)
The perception that Disney was being “mean” also shows how little most people understand the concept of intellectual property; and thus the widespread tendency to violate it. Most people described Disney as “mean” for protecting its intellectual property would not, for example, misunderstand why thieves who broke into a Disney building and stole all its furniture and office equipment should be prosecuted.
And most authors of fanfic would not break into a writer’s home and steal her personal possessions… yet they -are-, in fact, stealing her personal possessions when violating her copyrighted characters and world-building. It’s just that people aren’t educated about this, and others have been told and yet choose not to accept it.
What Laura said. A person who wouldn’t think about breaking into another’s home and stealing stuff will defend their right to steal your copyright, which is also a property owned by you just as your television and computer are owned by you.
One clear thing to keep in mind on a legal side. Trademark law is vastly different and has different rules than copyright law. Under trademark you must defend or lose. Under copyright, a property right, you have to sign over copyright to lose it. Someone using it can’t cause you to lose it, but it can cause you problems in court, as Laura said, if another party tries to make a case you gave “permission” to use, which is called “nonexclusive” and can be given without a signature.
Just think of a home. You can let someone live in your home and you still own it. You can’t NOT OWN IT unless you sign a paper. Copyright is like that property law in many aspects. Just because you let someone use your copyright(home) doesn’t mean you have lost your copyright)home.
Disney was defending trademark as they are forced to do under trademark law.
Brad wrote: Of course, radio was the single biggest way for labels and artists to gain exposure — prior to the internet.
Brad, recording artists get paid every time their song is broadcast over the radio, so it’s not just a means of exposure, it’s also one of their streams of income. The next time you look at a CD you own, take a look at the copyright/credit info for each song. You’ll see one of two things there, either ASCAP or BMI. Radio stations have to report the songs they play, and when they do the artist is paid out of one of those two funds (depending on which one their songs are registered with).
A friend of mine who has done work as a professional DJ has told me that in restaurants, if they have more than a given number of speakers over which they play music, then they, too, have to pay into those funds, as well as report the songs they play so that the artists can get paid. Just another stream of income for them.
It’s just like the ideas of streams of income that Dean has talked about here, but in the performing arts world it’s done differently. It’s an entirely different ball of wax.
GD, I never worked the commercial side of radio, so I wasn’t aware of what ASCAP or BMI actually were — thanks for the info, you learn something new every day.
I do know that at the community and college level, we were somehow exempt from having to log music airplay. Playlisting was optional, though we did have to be fairly rigorous about logging other on-air items for the FCC. I suppose it was part and parcel of the specialized rules that governed “public” broadcasting, versus commercial broadcasting.
Perhaps PBS cuts over a chunk of government money to cover royalties, in regards to all licensed public broadcasting?
I was never in the finance side of things — thank goodness — so I never had to fret about that. I was either in the booth doing music programming or I was Program Director; a thankless and tiresome task at the volunteer radio level. Blech!
Dean, if I read that right, the purpose of the corporation is to create a legal “copy” of yourself — a one-man business entity for the sake of taxes and money matters?
Well, sort of. A corporation is a stand-alone entity. Just like another person, only with some slightly different rules. So not a copy, a band new being.
You control the entity, and taxes and expenses are handled differently. If you have trouble understanding how to take deductions under a Schedule C, a corporation tax structure and reasons for being will just flat puzzle you. Never go into a corporation without an accountant and legal help. Doing otherwise unless you are an attorney is just asking for trouble, no matter what Legal Zoom and other online services say. Just my opinion. I went to law school for three years and I still hire an attorney and accountant to help.
Brad wrote: Perhaps PBS cuts over a chunk of government money to cover royalties, in regards to all licensed public broadcasting?
I don’t know, but I’m sure that they have to pay for the works they use, regardless whether they pay for it with government money or with advertisement revenue. Just because they’re subsidized by the government doesn’t mean that the creator of a work doesn’t get paid for use of their work. What little bit I do know about the broadcasting and music business (which is very little) I learned from that friend who had worked as a DJ. I was very surprised at his statement regarding restaurants, that a restaurant had to pay into those funds and report what they played only if they had more than a given number of speakers (which I think was six, but my memory could be wrong on that point). I thought it was very odd that it worked that way, and he agreed, but he said that’s how it works. It may have to do with the perceived size of the audience because of the number of speakers required to cover the square footage of the restaurant, or some such thing.
Regarding government involvement, I do know that any work commissioned by the government is automatically in the Public Domain. I’ve one friend, a photographer, who makes his living from photography he does for the government, but all those hundreds and thousands of photographs that he takes are in the Public Domain as a result. He owns only the images he takes that are not commissioned by the government.
___
Dean wrote: Caution, G.D., you have some basics, but you are slightly off in a number of places. The Copyright Handbook by NoLo Press is a great book. Latest edition.
Thanks, Dean. I’m definitely going to look into buying that. Most of what I’ve learned about copyright has come from reading how-to books on writing. The most recent book I’ve read that discussed copyright was Maura Shaw’s Mastering Online Research.
Dean wrote: And never use any part of a poem or a song lyric. Unless you made up the song or the lyric. Basically not allowed under fair use.
Shaw’s got an entire chapter on the subject of quoting others’ works, she writes:
You may quote no more than 300-350 words from an individual book length work before needing to request formal permission. (…) A short story, article, or essay would have a proportionately smaller quota, about 100 words.
You may quote up to 4-5 lines of a single poem, unless those lines comprise most of the entire poem. If you quote a complete poem, you must request permission.
Song lyrics are iffy. The recording companies are highly sensitive to copyright issues, and using even one line from a song may require permission.
Shaw, Maura D. Mastering Online Research. Cincinnati, Ohio. Writer’s Digest Books. © 2007 by Maura D. Shaw. p. 290
Her book — which is now slightly outdated (in terms of what you’ll find at search engines like Yahoo or Google or sites that no longer exist), but the principles are still valid — is geared more towards the need to quote others’ material in a non-fiction work, but I was reading it for the value of online research for story ideas I’ve got, and I’ve found it very useful to that end. I’ve got a short story I’ve written that benefited greatly from the research techniques I learned in her book, and I will soon be putting that story in the mail.
My understanding of copyright, however, isn’t based solely on Shaw’s book. A little of what I know might be tainted from unreliable sources online, but for questions on anything about which I might be confused I would gravitate towards the U.S. Copyright Office’s web site for answers (and now also towards the book you mentioned, Dean).
Dean, I take what you’re saying as meaning that you sign over to your corporation only those rights you’ve sold to a publisher, correct? All other rights would be yours. That would give you the tax benefits of a corporation, as well as the legal protections (which, in large measure, have to do with limited liability when sued) that are granted to corporations. So, it would be for legal, as well as accounting and tax purposes.
G.D., difficult at best to hold up the corporate shield for legal reasons, especially since you are also the officer and shareholder of the company. Very difficult, so no reason for legal. Just tax and accounting for corporations.
Shaw is flat wrong about songs and poems except where she said one line will often require permissions. No legal department in any PUBLISHING company will allow ANY use of those through without permissions, because the rules are so hard to determine, and as an editor, if there was someone else’s song lyric or poem in a short story, it was an automatic rejection. Too hard and too expensive to deal with permissions and most authors don’t know, so I always assume a poem or song lyric in a story by another person is stolen, thus the rejection.
And back to my point. In fiction, no reason to use anyone else’s work ever. In nonfiction, different set of problems.
So extreme caution. And never use anyone else’s poem lines or song lyrics, and if the title of the song is a lyric in the song, can’t use the title either. Caution, caution, caution.
Home video taping of over-the-air broadcasts was fought between Sony and Universal Studios all the way to the Supreme Court. Sony (as the manufacturer of the Betamax home recorder) successfully defended home taping (“time shifting”) as a fair use, which is a bit ironic considering Sony’s later stances on copying (as a media company).
It was a significant case also in that it held manufacturers of copying devices harmless regarding contributory infringement so long as the devices also had a legitimate use.
Disney does indeed need to defend its trademarks — but offering low-cost licenses to day-cares or pediatric hospitals would serve the same legal purpose. (Although I could see where that could be a costly administrative nightmare.)
Some years ago a law student at ASU researched the history of Mickey Mouse and found that he might not be so well protected as Disney claims, http://www.public.asu.edu/~dkarjala/publicdomain/Vanpelt-s99.html ,
but I doubt that anyone has the inclination and the money to put it to a court test.
The rights to use song lyrics–even so much as a line–is famously hard to acquire and, more to the point, famously expensive. The emphatic advice of every editor in the biz, if you try to include lyrics, is, “Get rid of it.” At least in fiction.
Interesting sidebar. I happened to wind up talking with someone recently who used to manage a team of sales people who worked on commission. And this person said that working with people who earned their living based on comission was a bad experience and one never to be repeated.
In this person’s description: A commission-based income creates (or exposes?) a Dr. Jeckyl and Mr. Hyde scenario where someone who, when off duty, behaves like a reasonable, sensible, pleasant person becomes totally amoral, selfish, and unreasonable when it comes to earning that commission. Once earning on a commission basis, ALL that person cares about is GETTING THE COMMISSION. =Nothing= else matters to him anymore. Not whether the deal is fair, not whether the client is satisfied, not whether the product is good or the company can meet the expectations of the clients. ONLY the commission is important to the sales person. And it creates a lot of problems, especially for anyone trying to WORK with that person.
I know this isn’t universally true, since I’ve got a couple of friends who were very successful in sales precisely because they gave such great customer service that they built up a very loyal client base, which made them real assets to their companies.
Just as it isn’t universally true that literary agents are temperamental and lazy fair-weather friends whose primary interest is protecting their relationships publishers rather than serving their clients.
But it was a common pattern that my acquaintance saw often enough to make the decision never again to manage a team of employees working on commission. And it’s a common enough pattern, too, that this person;’s description of the problems encountered with salespeople on commission was VERY familiar to me as someone who has dealt with literary agents–and very similar to a lot of what we’ve discussed here.
As we’ve discussed before here, there are lots of agents who are pleasant in social circumstances–including several of my former agents. But, when it comes to their work, my experience (and the experience of too many other writers, it seems to me) is that, yep, what most agents are interested in when they’re at work is the commission, and nothing else. And that’s not a level of service that’s worth my paying for–and it’s also a really big waste of the writer’s time to keep trying to wrangle -better- service out of that, and ruinous to stand by and -hope- for better service.
P.S. In fact, the above is one of the common reasons I’ve heard writers give for why they DON’T want split payments: “If our payments are split, and if -my- check from the publisher is late, or incorrect, or missing, but the agent has got -his- check… then he’s not going to be as prompt and intent on getting -my- check sorted out as he is under current circumstances, when my check is also HIS check.”
Likely to not happen that way, Laura. As you said, it’s just what some writers who don’t understand corporations would think. For those of you who haven’t been through this before, split payment checks would be authorized and cut at the same time and sent at the same time. I doubt an agent would ever have a check ahead of an author in split payments without a problem in the mail of some sort. Not the way the big companies work or authorizations on contract payments work. It could happen, but not enough chance of it happening to off-set the split payment solving of many other problems.
But it sure sounds good as an excuse to keep the status quo going, doesn’t it?
Dean wrote: In fiction, no reason to use anyone else’s work ever.
What about quotes you find in the front matter of a novel? I’ve read tons of novels that cite quotes from others’ work in the front matter of their books (I’m the kinda guy who reads everything when I buy a book… the blurbs, the flaps, about the author, the quips from reviews, copyright notices, acknowledgements (pardon the Britishism — being half Brit my writing tends to have a mix of American and British usage/spelling), dedications, forewords, prefaces, intros, prologues, epilogues, afterwords, everything). I know that quotes in the front matter are used to illustrate a point that is made in the novel and that the quotes are not used in the novels themselves, but quotes are used — at least in that fashion. Michael Chabon has quotes at the beginning of Gentlemen of the Road and at the beginning of The Amazing Adventures of Kavalier & Clay. Brazilian writer Paulo Coelho has a quote from the Bible at the beginning of The Witch of Portobello (and while the Bible itself isn’t copyrighted, modern translations are). China Miéville has a Philip K. Dick quote at the beginning of his novel, Perdido Street Station. And those are just three authors of books that I have in my own personal library, and I’ve many more besides that do the same thing. But again, these are all in the front matter, and not in the novels themselves. I’m certain that this is different than the point you were making, but my point is that obviously there are times and circumstances where quotes are permissible.
Stephen King is probably an exception to the rule, but in his novel Under the Dome he quotes 8 lines of lyrics from a James McMurtry song in the front matter of that novel, and one of those lines is actually used repeatedly throughout the novel itself. At the front of The Stand, King quotes several lines from three songs, one by Bruce Springsteen (12 lines of lyrics), one by Blue Öyster Cult (12 lines of lyrics), and one by Country Joe and the Fish (3 lines of lyrics). And, like the authors noted above, he’s also used quotes at the beginning of Hearts in Atlantis and also at the beginning of my favorite Stephen King novel, ‘Salem’s Lot.
I’m not trying to be argumentative, but certainly it isn’t objectionable to use quotes in the fashion noted above (King’s use of lyrics both in the front matter of (both Under the Dome and The Stand and in the text of his novel Under the Dome being obvious exceptions).
I know that in some cases, as with Tim Powers and James P. Blaylock invented quotes are used that are sometimes mistakenly believed to be real, which was the case with their quotes from Sir William Ashbless (Powers used a quote from him at the beginning of his novel The Drawing of the Dark, my absolute favorite Powers novel and probably one of my all-time favorite fantasy novels). And then, in the same vein, you have invented quotes that are obviously invented and can’t be mistakenly believed to be real, as with Asimov and his quotes from the Encyclopedia Galactica in his Foundation series.
I understand your point, though, especially regarding so many not knowing either the guiding principles of Fair Use, let alone how to go about getting permissions. For that reason, an editor rejecting such submissions out of hand makes perfect sense to me; it’s an attitude of “better safe than sorry.” For myself, however, I do know what to do since I’ve obtained permission to quote before (primarily with non-fiction, I’ll admit), but if I were to ever include a quote at the beginning of a manuscript of mine I’d make damned sure that I’d gotten permission first and I’d also include the necessary documentation along with my submission to quell any fears the editor might have, or I’d make sure that it fell within the guiding principles of Fair Use.
By the way, thanks for the book recommendation. I ordered The Copyright Handbook the day you’d mentioned it and received it in the mail today; I’ve already started browsing through it. Good stuff. All I’ve ever read on copyright up to this point has been either what I’ve found in the brief sections in how-to books on writing that I’ve read (which is easily more than 100 books, I’m sure; yes, I’ve read that many), or the things I’ve found and have read at the U.S. Copyright Office’s web site. It’s nice, however, to have an entire book on the subject in my library to which I can refer. Copyright is something I’ve always taken very seriously, even to the point of reading the copyright notices at the beginning movies, as I said in an earlier post.
I’m reading A VIEW FROM THE BRIDGE this week by Nicholas Meyer, a NYT bestselling novelist, Oscar-nominated screenwriter, and director of many movies I liked (VOLUNTEERS, THE DECEIVERS, TIME AFTER TIME), and probably best known for writing/directing the better STAR TREK films.
Anyhow, the story of Meyer’s career as a writer, both as a prose author in the publishing world and as a screenwriter, was one of agent after agent after agent, in both fields, quickly turning into a fair-weather friend and disappearing as soon as a book was rejected or a film prospect dried up. Until, at one point, once again unable even to get his own umpteenth disappearing agent on the phone, Meyer instead gets a book offer on his own, gets an entertainment lawyer to negotiate the contract, and gets onto the NYT bestseller list with that book for 40 weeks. The lawyer has been handling his business ever since.
I imagine that in Stephen King’s case, he or his publisher is willing to buy the rights to use those 8 or 12 lines of lyrics. It can’t be a very significant sum compared to the total dollar amount involved in the project. But that’s King.
And I empathize on the Britishisms – I started school in England and finished in Canada, and have lived in the US for the past two decades. My spelling is all over the Atlantic.
One thing that people may tend to forget is that “fair use” rules for *noncommercial, educational* purposes are *much* freer than “fair use” type rules that would govern a novel, which is by nature a commercial work.
Being in education, I know the educational fair use rules pretty well, but I also know they don’t apply to fiction writing/publishing.
I’ve heard people get the two confused (not saying anyone here is, just that others have), and I imagine that could get them in some trouble.
@Laura
Re: working on commission
After working a commission job for a year (never again), I’ve found this to be, if not universally true, then true enough to leave an oily feeling on my soul.
I wasn’t very good at selling on commission (real estate), and I won’t go back to it. People who are buying something as important as a house shouldn’t be goaded into buying too much house, buying when they’re not really ready/can’t really afford it, etc., just because a Realtor needs a paycheck. I don’t like that system, and maybe it’s not inherently broken, but I’m not going to be working in it again.
Dean wrote: Corporations are 70 years from publication. If you sign over (again, a property right) your copyright to your corporation, and then list it as a corporation, there are all kinds of case law on that, but more often than not there has to be a major paper trail between you and a corporation to lose the 70 years past your life protection you have automatically.
Dean, I was wondering if you could clarify this a little bit. This almost sounds like when you sign over your copyright to your corporation that you do lose something. Namely, if you retain the copyright, then it’s lifetime of the author plus 70 years, whereas if the corporation owns it, then it’s just 70 years from publication, so that the term of the copyright is shorter.
If I’ve got this correct, then that would explain this part of your comment:
Author corporations are not often owners of the copyright, but are leasing it for accounting issues, but the copyright is listed in books under the corporation name for the record. Doesn’t always mean the corporation owns it.
G D, afraid any real attempt at explaining all that at a deeper level would take a weekend course on writers and corporations.
Just remember that unless you have a signed work-for-hire agreement with a corporation and are working in the company offices on the company equipment, you usually retain rights to your work.
When you sign a contract with a publishing company, you are licensing rights to that company, some of which they will use, others not.
Your own company is no different. You can sign over certain rights to the company, some of which they will relicense, some they won’t, but you still own the underlying copyright. That help make sense of all that?
As an example of the difference in licensing vs signing over the copyrights themselves, SCO vs Novell just finished up a seven year court case over (in part) whether an asset purchase agreement – by which SCO bought the marketing rights to Unix from Novell – also signed over the copyrights, which would have enabled SCO to try suing certain third parties for copyright infringement (which Novell didn’t want to do). The jury just returned a verdict that, no, it didn’t; the language in the agreement was not as explicit as required by the US copyright code.
(This whole case was screwy from the start, and nobody who knew anything about the details though SCO (nee Caldera) had any chance. They still managed to drag it out for seven years.)
Yeah, that made sense. I know about the work-for-hire stuff and about working in a corporate environment firsthand as I’ve written training materials for some of my employers. Even when my actual job description at any employer I’ve worked for doesn’t include doing things of that sort, I’m always willing to volunteer for it simply because I enjoy writing (even though I know that my work will become their property). If nothing else, it has provided me with a portfolio of work I’ve done to show people whenever I’ve wanted to do some non-fiction freelancing on the side.
Alastair wrote: I imagine that in Stephen King’s case, he or his publisher is willing to buy the rights to use those 8 or 12 lines of lyrics. It can’t be a very significant sum compared to the total dollar amount involved in the project. But that’s King.
And I empathize on the Britishisms – I started school in England and finished in Canada, and have lived in the US for the past two decades. My spelling is all over the Atlantic.
Oh, I’m sure that with King, since the man pulls in $20M+ per year, that purchasing the rights to use those lyrics is a drop in the bucket, which, admittedly, makes him a rather large exception to the rule.
My spelling/word choice is the same: acknowledgement, colour, cookies I call ‘cookies’ (not biscuits), theatre (which is where plays are performed; movies — better yet, flicks — are in the cinema, thank you very much), and centre, of course; but I don’t do tyres. LOL! Besides having a British mum (she’s from West Ham, despite which I root for Liverpool FC), my schooling was all over — the US; Okinawa, Japan; Bangkok, Thailand; Upper Heyford, England (in Oxfordshire, where I attended my first three years of high school; we lived very close to Warwickshire, about six miles from Stratford) — nevermind the numerous other places where I’ve lived or visited since. Because of my parentage I’ve also relatives all about the globe: Hong Kong, Australia, South Africa, England, and the US. As with the British Empire, the Sun never sets on my family.
Ask me where I’m from and I’m likely to answer like a typical military brat: “Everywhere… and nowhere.” Or, most often, I say, “Do you want to know where I was born? Where I’ve lived the longest? Or where I currently live?” When you’ve had such a nomadic existence as a youth — most especially when it involves living in places with differing cultures, religions, languages, etc — you have genuine difficulty with that particular question.