tag:blogger.com,1999:blog-30942132620596527912024-03-08T14:33:55.076-05:00Rights of WritersA blog about writing and the law.
Also on Twitter @RightsofWritersMark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.comBlogger42125tag:blogger.com,1999:blog-3094213262059652791.post-26547538432062358252015-12-02T15:23:00.001-05:002015-12-02T15:23:19.425-05:00Can I Use a Photograph of Scarlett Johansson on the Cover of My E-Book?<div>
Let's say I've written a memoir that I'm planning to self-publish. And let's say I've also decided that, on my book cover, it would be great to use a dazzling <a href="https://www.google.com/search?q=getty+images+jennifer+lawrence&espv=2&biw=1600&bih=775&tbm=isch&tbo=u&source=univ&sa=X&ved=0ahUKEwi5qo3h9brJAhXDWT4KHVlMDiEQsAQIJQ#tbm=isch&q=getty+images+scarlett+johansson">photograph of Scarlett Johansson</a> that I've licensed from a stock photo service, such as <a href="http://www.gettyimages.com/?esource=googUSA_Site_Links_Getty_Images_Exact&language=en-US&kw=USA+getty_images+exact&lid=71690981&pcrid=4610259942&property=GI">Getty Images</a>. Alas, Ms. Johansson has no connection whatsoever to me or my book, but, hey, her picture on the cover certainly can't hurt my sales.</div>
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Can I -- and can you -- lawfully use a picture of an individual on a book cover without his or her permission? It depends.</div>
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There are two separate legal considerations in publishing a photograph of a person, regardless of whether he or she is a celebrity. </div>
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First, you must consider the rights of the photographer who ordinarily owns a copyright in the photographs that he takes. Assuming that an image is not in the <a href="http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter8/8-a.html">public domain</a>, you will need the photographer's permission (or the permission of the photographer's authorized agent or of a stock photo service that controls the rights, etc.) to use the photograph for <i>any</i> purpose anywhere in your book. By all means, don't simply copy and re-purpose a photograph from the Internet; that would almost surely be a copyright infringement. (Of course, if you snap a photograph yourself you are, <a href="http://fairuse.stanford.edu/overview/faqs/copyright-ownership/">with some exceptions</a>, presumably the copyright owner.)<br />
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<b>But obtaining the necessary copyright clearance may not be enough</b>.<br />
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Second, you must consider the rights of any identifiable persons depicted in the photographs. Those rights may, in turn, depend upon the context in which the photograph is to be used. </div>
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A person's right to control the use of her own image (as well as certain other aspects of her persona, such as name and voice) is called the <a href="http://corporate.findlaw.com/litigation-disputes/right-of-publicity.html">right of publicity</a>. There is no federal right-of-publicity statute in the United States, although <a href="http://www.americanbar.org/content/dam/aba/publications/communications_lawyer/august2011/why_federal_right_publicity_statute_is_necessary_comm_law_28_2.authcheckdam.pdf">some advocates favor such legislation.</a> Instead, the <a href="http://www.dmlp.org/legal-guide/state-law-right-publicity">right of publicity is governed by state law</a>. The law varies considerably from state to state, but two general principles apply. First, the use of the image of a living person in advertising or for promotional purposes, without written permission, is unlawful almost everywhere in the United States. So, obviously, SodaStream could not have aired <a href="https://www.youtube.com/watch?v=W7ivSdvc4S0">this politically controversial commercial</a> without Scarlett's written permission. Second, consent from the subject of a photograph is <u>not</u> needed to use the picture in connection with genuine news and informational reports. For example, <i>The Washington Post</i> did not need Scarlett's permission to use her photograph in connection with <a href="https://www.washingtonpost.com/news/arts-and-entertainment/wp/2015/09/10/stephen-colberts-second-late-show-things-get-weird-with-scarlett-johansson-elon-musk/">this article concerning her appearance on the Colbert show</a>. Nor would her consent be needed to include her photograph in an informational work, such as an encyclopedia or <a href="https://en.wikipedia.org/wiki/Scarlett_Johansson">this <i>Wikipedia</i> article</a> about her. That said, there are countless uses that fall somewhere on the spectrum between a indisputably permissible editorial use and an indisputably <i>im</i>permissible advertising use. To complicate matters further <a href="http://www.artlawgallery.com/2012/04/articles/intellectual-property-copyright-and-moral-rights/life-after-death-right-of-publicity-law/">approximately 20 states</a> hold that the <a href="http://www.rightsofwriters.com/2011/03/dead-as-characters-in-fiction-shoeless.html">right of publicity continues for some years after an individual's death</a>, and is enforceable by the heirs of the deceased.<br />
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So what about putting Scarlet Johansson on my book cover? Well, c<span style="font-family: inherit;">ontext is everything. </span><br />
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<span style="font-family: inherit;">First an easy case: The courts have almost uniformly held that you can use a individual's picture, without his consent, on the cover of a book that is about him, e.g., on an unauthorized biography. (See, for example, this <a href="https://scholar.google.com/scholar_case?case=3945591202482039646&hl=en&as_sdt=6&as_vis=1&oi=scholarr">decision involving the Black Panther leader Bobby Seale</a>.) But my book is about me, not about Scarlett.</span><br />
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<span style="font-family: inherit;">Another easy case: Singer-songwriter Tasleema Yasin <a href="http://tushnet.blogspot.com/2010/05/book-cover-not-artwork-subject-to-right.html">successfully sued a publisher</a> for using her photograph on the front cover of a novel entitled <i>Baby Doll</i> without her permission. The court held that, because Ms. Yasin had no connection to the subject matter of the novel (indeed, her name wasn't even mentioned in it), the use of her photograph </span><span style="background-color: white; color: #333333; line-height: 16.9px;"><span style="font-family: inherit;"><span style="font-family: inherit;">was “purely for marketing and trade purposes; solely as a means to attract customers and generate sales" and was therefore unlawful. (See also <a href="https://casetext.com/case/dorsey-v-black-pearl-books"><i>Dorsey v. Black Pearl</i></a> finding that R&B singer Marc Dorsey was likely to succeed on his claim that the unauthorized use of his photograph on the cover of novel was a violation of his right of publicity.)</span></span></span><br />
<span style="background-color: white; color: #333333; line-height: 16.9px;"><span style="font-family: inherit;"><span style="font-family: inherit;"><br /></span></span></span>
<span style="background-color: white; color: #333333; line-height: 16.9px;"><span style="font-family: inherit;"><span style="font-family: inherit;">But things can get tricky when the person depicted on a book cover has at least some tangential relation to the subject of the book</span>. For example, in <a href="https://casetext.com/case/christianson-v-henry-holt-company"><i>Christianson v. Henry Holt</i></a>, a waitress sued the publisher for the use of her photograph on the cover of the well-regarded book <a href="http://www.amazon.com/Nickel-Dimed-Not-Getting-America/dp/0805063897/ref=reader_auth_dp"><i>Nickel and Dimed</i></a> by Barbara Ehrenreich, which dealt with the problems faced by the working poor. The plaintiff had previously consented to to the use of her photograph in connection with a <i>Fortune</i> magazine article about "single mothers supporting their families on low-wage jobs," but she was not asked for permission to use her image on the book jacket published years later. The publisher argued that the photograph had a reasonable connection to the book and therefore the right of publicity claim should be dismissed, but the court disagreed:</span></span><br />
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At no point is Plaintiff, her photo, or the restaurant where she appears ever part of the subject matter of the book. If Plaintiff or the restaurant where she appears had been mentioned even once in <i>Nickle and Dimed</i> then this Court might have doubts about this ruling. But this is not the case, and as a result, the book and the photo do not bear a reasonable relationship with each other.</blockquote>
Another court reached the opposite conclusion in a case with somewhat similar facts. <a href="https://scholar.google.com/scholar_case?case=5204926643598149083&q=Yasin+v.+Q-Boro+Holdings&hl=en&as_sdt=6,33&as_vis=1" style="background-color: white; font-family: inherit; line-height: 16.9px;"><i style="background-color: white; font-family: inherit; line-height: 16.9px;">Dallesandro v. Henry Holt & Co</i><span style="background-color: white; font-family: inherit; line-height: 16.9px;"><span style="background-color: white; line-height: 16.9px;">.</span></span></a><span style="background-color: white; color: #333333; font-family: inherit; line-height: 16.9px;">, involved a book cover that depicted the plaintiff longshoreman in conversation with Father John Corridan, a priest who crusaded against corruption on the docks and was an inspiration for the film </span><i style="background-color: white; color: #333333; font-family: inherit; line-height: 16.9px;">On the Waterfront</i><span style="background-color: white; color: #333333; font-family: inherit; line-height: 16.9px;">. Even though Mr. Dallesandro wasn't mentioned in the text of the book, the court found that his picture was illustrative of a matter of genuine public interest, and therefore there was no violation of Mr. Dallesandro's right of publicity. The fact that the plaintiff was a longshoreman and had, in fact, spoken with Father Corridan was deemed sufficient to defeat the right of publicity claim. However, it was a close call; one of the three judges dissented, arguing that the connection between the photograph of Mr. Dallesandro and the subject matter of the book was too remote to justify using his image.</span><br />
<span style="background-color: white; color: #333333; line-height: 16.9px;"><span style="font-family: inherit;"><br /></span></span></div>
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<span style="background-color: white; color: #333333; line-height: 16.9px;"><span style="font-family: inherit;">Keeping these general principles in mind, it would be risky business for me to use Scarlett Johansson's photograph on the cover of my memoir, I don't have her consent and my only connection to her is having purchased tickets to four of her movies over the years (which I enjoyed but didn't mention in my [hypothetical] memoir). Similarly, if you are planning to use a photograph of a person, living or dead, on your book cover, without written permission, it is prudent to ask a lawyer whether your cover might get you into hot water.</span></span><br />
<span style="background-color: white; color: #333333; line-height: 16.9px;"><span style="font-family: inherit;"><br /></span></span>
<span style="background-color: white; color: #333333; line-height: 16.9px;"><span style="font-family: inherit;">When photographs of people appear <i>inside</i> your book, they are less likely to give rise to legal problems because such uses are less likely to be deemed uses for advertising or promotional purposes. But, even then, there should be some "real relationship" between the pictures and the content of your book. (See <a href="https://www.law.cornell.edu/nyctap/I90_0233.htm">the <i>Finger v. Omni Magazine</i> case</a> which liberally interprets the "real relationship" test under New York law.)</span></span><br />
<span style="background-color: white; color: #333333; line-height: 16.9px;"><span style="font-family: inherit;"><br /></span></span>
<span style="background-color: white; color: #333333; line-height: 16.9px;"><span style="font-family: inherit;">If you obtain a photograph from a stock photo house to use on your book cover, keep in mind that the license agreements often cover only the copyrights in the photographs. If you're using the image on a book cover, you should insist upon seeing a copy of any applicable right of publicity release and read it carefully to make sure it allows for your intended use. And keep in mind that, while some stock photo houses provide indemnifications to their customers, those assurances may be limited to the amount of the license fee, which is woefully inadequate to compensate you in the event of a legal claim.</span></span><br />
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Finally, be careful not to state or imply that a person depicted on your book cover endorses or approves of your work, if that isn't true. Misleading use of someone's name or likeness implicates other areas of the law, such as false advertising. See, for example, <i>Rostropovich v. Koch Int’l Corp.</i>, 34 U.S.P.Q.2d 1609 (S.D.N.Y. 1995), in which cellist Mstislav Rostropovich claimed that the use of his
likeness on CDs featuring his early performances would
cause consumers to mistakenly believe he had endorsed the CDs.<br />
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<span style="background-color: white; color: #333333; line-height: 16.9px;"><span style="font-family: inherit;">The right of publicity has many nuances. Edward Rosenthal's good lawyerly discussion of the law </span></span><a href="http://www.pli.edu/emktg/toolbox/Publicity_Entertainment44.pdf" style="background-color: white; font-family: inherit; line-height: 16.9px;">can be found here</a><span style="background-color: white; color: #333333; font-family: inherit; line-height: 16.9px;">. A less detailed summary from the Digital Media Law Project at Harvard </span><a href="http://www.dmlp.org/legal-guide/using-name-or-likeness-another" style="background-color: white; font-family: inherit; line-height: 16.9px;">can be found here.</a> <span style="background-color: white; color: #333333; font-family: inherit; line-height: 16.9px;">Professor Jennifer Rothman's state-by-state "roadmap" </span><a href="http://www.rightofpublicityroadmap.com/" style="background-color: white; font-family: inherit; line-height: 16.9px;">can be found here</a><span style="background-color: white; color: #333333; font-family: inherit; line-height: 16.9px;">. Some, but by no means all, other countries recognize rights of publicity, also known as "personality rights"; see a <i>Wikipedia</i> listing</span><span style="background-color: white; color: #333333; font-family: inherit; line-height: 16.9px;"> </span><a href="https://en.wikipedia.org/wiki/Personality_rights#Further_reading" style="background-color: white; font-family: inherit; line-height: 16.9px;">here</a><span style="background-color: white; color: #333333; font-family: inherit; line-height: 16.9px;">.</span><br />
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Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com0tag:blogger.com,1999:blog-3094213262059652791.post-25084502938821296332014-06-19T16:02:00.000-04:002014-06-19T20:41:09.735-04:00Can I (Successfully) Be Sued for My Scathing, Cruel, Factually Misleading (but Very Witty) Review of Your Book?<div style="background-position: initial initial; background-repeat: initial initial;">
In a television appearance on the Dick Cavett Show in 1980, the novelist Mary McCarthy was asked which writers she regarded as overrated. McCarthy singled out the playwright and memoirist Lillian Hellman as "a bad writer, a dishonest writer," and went on to say <a href="http://scandalouswoman.blogspot.com/2008/08/uncivil-wars-lillian-hellman-vs-mary.html">"every word she writes is a lie, including 'and' and 'the.'"</a> <br />
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As <a href="http://www.newrepublic.com/article/books/magazine/91900/mary-mccarthy-lillian-hellman-libel-suit">Franklin Foer tells the story</a>, "when Lillian Hellman heard the quip in her bed, she laughed. By the time her assistant arrived for work the next morning, Hellman had called her lawyer, and set in motion a $2.25 million libel suit against McCarthy."<br />
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Did Hellman have a legal leg to stand on? I'll come back to that question in a minute.<br />
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There's no doubt that a scathing take-down of a book or movie or other work of art can provide a wicked source of pleasure to both the reviewer and her readers. Some deliciously disapproving book reviews may be found in <a href="http://www.huffingtonpost.com/2010/09/24/meanest-book-reviews_n_736922.html#s144136title=Dirty_Sexy_Politics">this collection of pans</a>, <a href="http://bnreview.barnesandnoble.com/t5/Reading-Habit/Worst-Book-Reviews/ba-p/5821">this one</a>, <a href="http://www.huffingtonpost.co.uk/2012/01/11/harshest-ever-book-review_n_1198903.html">this one (focusing on harsh assessments of literary classics)</a>, and <a href="http://www.huffingtonpost.com/2012/08/28/worst-book-reviews_n_1834631.html">this one (featuring caustic reviews by <i>New York Times</i> critic Michiko Kakutani).</a> At least two books have chronicled the history of bookish slam pieces: <a href="http://www.amazon.com/Fine-Art-Literary-Mayhem-Account/dp/0938530119/ref=la_B001HPUDLI_1_2?ie=UTF8&qid=1369926008&sr=1-2">The Fine Art of Literary Mayhem</a> and <a href="http://www.amazon.com/Rotten-Reviews-Redux-Literary-Companion/dp/B00CC8AP5S/ref=sr_1_1?ie=UTF8&qid=1369934536&sr=8-1&keywords=rotten+reviews+redux">Rotten Reviews Redux</a>. And there is even a <a href="http://www.hatchetjoboftheyear.com/">Hatchet Job of the Year award</a> for the "best" worst review.<br />
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But can a negative review of a book or film or other creative work go too far and give rise to a successful legal claim against the reviewer? The answer: yes, but (thank heavens) rarely. To make sure your reviews don't plunge you into legal hot water, you should bear in mind the sometimes fuzzy line between constitutionally protected opinion and legally actionable libel. <br />
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By way of background, libel is defined as a false and defamatory statement of FACT about a living person or a business entity or product that causes harm to reputation. From the definition, it follows that: (1) <a href="http://www.rightsofwriters.com/2011/01/can-you-be-sued-for-libeling-dead-john.html">you can't libel the dead</a>; and (2) <a href="http://www.rightsofwriters.com/2010/11/can-i-be-sued-for-telling-truth.html">truth is an absolute defense to a libel claim</a>. (If it ain’t false, it ain’t libel.) It also follows from the definition that a statement cannot form the basis for a viable libel claim unless it can reasonably be interpreted as an assertion of a fact. That's where the crucial distinction between fact and opinion comes into play.<br />
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In <a href="http://scholar.google.com/scholar_case?case=7582860956470530700&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><i>Milkovich v. Lorain Journal Co.</i></a>, the Supreme Court identified two general categories of "opinion," which are protected by the First Amendment. The first category consists of statements that are not "provable as false" by objective evidence. For example, when a magazine described a store as "trashy," <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/1st/971329.html">a federal appeals court held</a> that the word "trashy" is "quintessentially subjective," a "chameleon that continuously changes colors and shades of meaning" and "admits of numerous interpretations"; "we can imagine no objective evidence that might conclusively prove or disprove it." Therefore, the judges found that, in context, the word "trashy" was pure opinion and could not support a libel claim. <br />
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A second category of opinion identified in <i>Milkovich</i> is "loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously" stating an actual fact. Many instances of rude name-calling fall into this category, including characterizations such as <a href="http://scholar.google.com/scholar_case?case=14998614062552817312&hl=en&as_sdt=2&as_vis=1&oi=scholarr">"stupid son of a bitch,"</a> <a href="http://scholar.google.com/scholar_case?case=9207559642973753148&hl=en&as_sdt=6,33">"idiot,"</a> <a href="http://scholar.google.com/scholar_case?case=4528506684203644573&hl=en&as_sdt=6&as_vis=1&oi=scholarr">"jerk,"</a> <a href="http://www.ca6.uscourts.gov/opinions.pdf/05a0006n-06.pdf">"disgrace to the species,"</a> and a personal favorite, <a href="http://law.justia.com/cases/california/caapp4th/74/1394.html">"creepazoid attorney."</a> Barbed jokes or satire often qualify as protected opinion, for the same reasons.<br />
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Regrettably, the distinction between fact and opinion can be elusive. It is blurriest when (1) you mix negative opinions with negative statements of fact, or (2) you express opinions that imply the existence of highly negative facts without stating them. (An example of the latter: saying "I believe Mark Fowler is a con artist" without providing facts that make it clear whether you are accusing me of committing criminally fraudulent acts or merely spouting self-serving bull.)<br />
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And you should keep in mind that merely labeling something an "opinion" doesn't necessarily make it so in the eyes of the law; for example, it would be ill-advised to say "In my opinion, he killed his father and married his mother," unless you have the facts to back it up.<br />
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Now let's apply these principles to an actual review. Susan Cohen, writing in the <a href="http://www.charlestoncitypaper.com/charleston/book-review--the-girl-with-the-dragon-tattoo/Content?oid=1115528"><i>Charleston City Paper</i> in 2008, said of <i>The Girl with a Dragon Tattoo</i></a> “this is easily one of the worst books I have ever read, and remember I’ve read John Grisham.” Unflattering? Yes, very. Libelous? No way. Stieg Larsson certainly didn’t have a claim for libel. He died in 2004, years before the review was published. But neither did John Grisham, who was -- and is -- very much alive. A purely aesthetic judgment about Grisham's and Larsson's works ("one of the worst I've ever read") simply isn’t capable of being proven true or false. Therefore that statement shouldn't qualify as actionable libel no matter how damning the opinion may be. <a href="http://scholar.google.com/scholar_case?case=5414928006321798756&hl=en&as_sdt=2&as_vis=1&oi=scholarr">As one court explained,</a> "While a bad review necessarily has the effect of injuring an author's reputation to some extent -- sometimes to a devastating extent -- criticism's long and impressive pedigree persuades us that, while a critic's latitude is not unlimited, he or she must be given the 'breathing space' appropriate to the genre." As far as I know, Mr. Grisham (who practiced law for a decade) did not threaten legal action against Ms. Cohen -- perhaps because he has a sense of humor, a thick skin, and/or a healthy appreciation of the First Amendment.<br />
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Next, let's consider a closer question. In a review of the book <a href="http://www.amazon.com/Interference-Organized-Influences-Professional-Football/dp/068808303X"><i>Interference</i></a> about the influence of organized crime in football, a reviewer for <i>The New York Times</i> wrote, among other uncomplimentary statements, that "there is too much sloppy journalism to trust the bulk of this book’s 512 pages.” The author of the book, Dan Moldea, sued. Few libel cases have taken as many twists and turns. The district court <a href="http://scholar.google.com/scholar_case?case=17477852733936134592&hl=en&as_sdt=2&as_vis=1&oi=scholarr">found that the challenged statements were either substantially true or non-actionable opinion.</a> But the appeals court initially disagreed and found, among other things, that <a href="http://scholar.google.com/scholar_case?case=2937375910503947621&hl=en&as_sdt=2&as_vis=1&oi=scholarr">"the review attacks Moldea's competence as a practitioner of his chosen profession."</a> As a result, the court concluded that some statements in the book review might be libelous, if they were proven to be untrue.<br />
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Judge Mikva wrote an eloquent dissent, arguing that to charge a writer with "too much sloppy journalism" is not equivalent to saying that a brain surgeon has "clumsy hands." <br />
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The reviewing of books is an art form almost as old as civilization. The more important the book, the more controversial the reviews. Courts should be most hesitant to assume an arbiter's role in this most delicate area of First Amendment speech. While the designation of speech as a "book review" should not automatically exempt it from the libel laws, any more than the "opinion" label enshrines other speech, the "sloppiness" of the reviewer's work should be left to the readers to determine, rather than for judges or juries to ordain.</blockquote>
Then, surprisingly and thankfully, the judge who had written the majority opinion for the appeals court <a href="http://scholar.google.com/scholar_case?case=5414928006321798756&hl=en&as_sdt=2&as_vis=1&oi=scholarr">reconsidered and totally reversed his position</a>, noting that he had:<br />
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failed to take sufficient account of the fact that the statements at issue appeared in the context of a book review, a genre in which readers expect to find spirited critiques of literary works that they understand to be the reviewer's description and assessment of texts that are capable of a number of possible rational interpretations.</blockquote>
The chastened <i>Moldea</i> court then went on to prescribe a new and influential standard for distinguishing opinion from libelous statements of fact in the context of reviews.<br />
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The proper analysis would make commentary actionable only when the interpretations are unsupportable by reference to the written work. . . . This "supportable interpretation" standard provides that a critic's interpretation must be rationally supportable by reference to the actual text he or she is evaluating, and thus would not immunize situations analogous to that presented in <i>Milkovich</i> [the Supreme Court case mentioned above] in which a writer launches a personal attack, rather than interpreting a book. This standard also establishes boundaries even for textual interpretation. A critic's statement must be a rational assessment or account of something the reviewer can point to in the text, or omitted from the text, being critiqued. For instance, if the <i>Times</i> review stated that <i>Interference</i> was a terrible book because it asserted that African-Americans make poor football coaches, that reading would be "unsupportable by reference to the written work," because nothing in Moldea's book even hints at this notion. In such a case, the usual inquiries as to libel would apply: a jury could determine that the review falsely characterized <i>Interference</i>, thereby libeling its author by portraying him as a racist (assuming the other elements of the case could be proved).</blockquote>
Applying its newly minted "supportable interpretation" standard, the appeals court found that all of the statements in the review of <i>Interference</i> were either substantially true statements of fact or were opinions "supportable by reference to the written work," and therefore not libelous.</div>
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Don’t let me make you paranoid. Libel actions arising out of book or movie reviews are few and far between. How many merciless book reviews have been published in, say, the last thirty years? Tens of thousands? More? But only a relative handful have given rise to lawsuits. And almost none have ultimately resulted in judgments against the reviewers or their publishers.<br />
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But don’t let me make you <i>UN</i>paranoid either. Defamation lawsuits involving unflattering book or film reviews are rare, but not rare enough for you to let down your guard. For example, in <a href="http://scholar.google.com/scholar_case?case=5319004553820690703&hl=en&as_sdt=6&as_vis=1&oi=scholarr"><i>Stuart v. Gambling Times</i></a>, the plaintiff-author sued over a review calling his book about gambling "the #1 fraud ever perpetrated upon the gambling reader" -- a statement that was held to be protected opinion. True crime writer Ann Rule recently <a href="http://www.seattlepi.com/local/article/Ann-Rule-sues-Seattle-Weekly-over-story-penned-by-4681810.php">sued the <i>Seattle Weekly</i></a> (<a href="http://www.seattlepi.com/local/article/Judge-tosses-Ann-Rule-defamation-lawsuit-5270728.php">thus far unsuccessfully</a>) over an article that critiqued her book <i>Heart Full of Lies</i>; Rule contended that the article contained "innumerable inaccuracies and untruths" about her reporting. Harvard historian Niall Ferguson <a href="http://www.seattlepi.com/local/article/Judge-tosses-Ann-Rule-defamation-lawsuit-5270728.php">threatened suit over a negative review</a> of his book <i>Civilization: The West and the Rest</i>, but he ultimately chose not to litigate. In England, author Chris McGrath did file suit against an Amazon reviewer (as well as the evolutionary biologist Richard Dawkins) for unfavorable comments about his book. The litigation turned out to be <a href="http://www.independent.co.uk/arts-entertainment/books/news/author-chris-mcgrath-faces-six-figure-legal-bill-after-unfavourable-amazon-reviews-case-is-struck-out-7618976.html">an expensive mistake</a>. A publisher <a href="http://capalibrarians.org/2013/02/unprecedented-3-million-dollar-lawsuit-filed-against-mcmaster-librarian-for-blogpost/">sued a Canadian librarian</a> for an unflattering blog post contending, among other things, that the publisher's works were "second class scholarship." <a href="https://chronicle.com/article/French-Court-Finds-in-Favor-of/126599/">A disturbing criminal proceeding in France against the editor of book review website</a> was dismissed. But the <i>Daily Telegraph</i> in London <a href="http://www.theguardian.com/media/2011/jul/26/telegraph-media-group-libel-damages">was ordered to pay $100,000 over a book review</a> that a judge found to be "spiteful" and to contain serious factual errors. And libel <a href="http://www.washingtonpost.com/local/crime/2012/12/04/1cdfa582-3978-11e2-a263-f0ebffed2f15_story.html">litigation over negative reviews of other types of products</a> and services is booming.</div>
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So what steps can you take to protect yourself from a libel claim when you write a review?<br />
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1. In reviewing works of fiction or dramatic films or works of visual art, you will often be making aesthetic judgments, which will generally qualify as protected pure opinion. However, when you write about non-fiction or documentaries, you may be more likely to make factual assertions, which could be proven true or false. When making factual claims, protect yourself by being the best and most responsible sort of journalist, carefully checking your sources. Be especially cautious when you are stating or implying that someone has committed a crime, acted unprofessionally, unethically, or incompetently, abused controlled substances, gone bankrupt, or is unchaste. (Interestingly, legal views of what constitutes an actionable accusation of unchastity are slowly changing, as illustrated by <a href="http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-winter-2007/unchaste-no-longer">this case involving a sex tape allegation</a>.) Also be extra cautious if you state or imply that a product is defective or dangerous.<br />
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2. As <a href="http://www.janiceharayda.com/">the great Jan Harayda</a> puts it, "review the book, not the author." For example, it’s one thing to say that a book contains factual misstatements (assuming that you're right and the author is wrong). It’s another to say that the author “distorts” the facts – that’s a definite yellow light, trending away from a review of the text and toward an attack on the author. And you may well be picking a fight if you say that the author knowingly “lies.” That's not to say that you can't hold and express highly negative opinions about the character of a writer, but when you publish them, you are taking on a different level of risk. Tread carefully. If you're going to be caustic and cruel, make sure your facts are faultless.<br />
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3. Don't use a review (or any blog posting) as a vehicle for settling scores. Although statements made out of spite or ill-will are not actionable for that reason alone, think twice before reviewing the work of author against whom you bear a personal grudge.<br />
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4. Avoid using inflammatory words just for the sake of being colorful or shocking. Words like racist, Nazi, bigot, blackmail, bribe, cult, scam, liar, dishonest, incompetent, quack: all might conceivably qualify as statements of <i>opinion</i> – in the right context. However, in a different context, those same words might be deemed disparaging statements of <i>fact</i>. Realize that hot-button words give rise to a disproportionate number of libel claims. Never use such words loosely.<br />
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5. Keeping in mind the "supportable interpretation" standard in <i>Moldea</i>, bolster your criticisms with specific, accurate references to the text on which you base your opinions. <br />
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6. If you do receive a complaint letter from someone who implies he might take legal action, speak to a lawyer right away.<br />
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7. If you make a serious mistake, in some states -- but not New York -- you can protect yourself against certain types of damage claims by making a prominent retraction. It is, in fact, almost always a good idea -- ethically, legally, and interpersonally -- to correct the record. However, you would be well-advised to consult with an attorney for assistance in framing a correction, particularly if you are being threatened with legal action.<br />
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8. Consider publishing an offended person’s response. Often what a complainant wants most of all is to tell her side of the story. <br />
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9. Remember that, if you are publishing reviews on your own blog or even on Amazon or barnesandnoble.com, you performing on a high wire with a potentially large audience and no safety net. You don’t have editors or fact checkers reading your work before you post it on the web. You don’t have a well-healed news organization standing behind you – with lawyers ready to vindicate your rights and insurance to pay the lawyers for doing so. So you must act as your own editor, ensuring that you have your facts straight and that you aren't sacrificing fairness for the sake of snark. <br />
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Lawsuits can be scary and expensive, even when you win a smashing early victory. In most states (except a few with strong <a href="http://www.thefirstamendment.org/antislappresourcecenter.html">anti-SLAPP laws</a>), a prevailing libel defendant still has to pay her own attorneys' fees. But if you are careful and professional, and if you know something about the law of libel, it’s very unlikely that you will ever be sued for any of your reviews.<br />
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But what about Lillian Hellman's case against Mary McCarthy? Amazingly, a New York court declined to find that McCarthy's statement was a simple joke or protected opinion. (Most libel lawyers think the judge was wrong.) The case dragged on for five years until Hellman died and the lawsuit was dropped. <a href="http://www.newrepublic.com/article/books/magazine/91900/mary-mccarthy-lillian-hellman-libel-suit">As Foer reports</a>, McCarthy was disappointed; she told <i>The New York Times</i> that “I’m absolutely unregenerate ... I didn’t want her to die. I wanted her to lose in court. I wanted her around for that.”<br />
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Other resources: Here is a blog posting about <a href="http://www.businessinsider.com/companies-are-suing-for-yelp-reviews-2012-12">lawsuits arising out of bad reviews on Yelp</a>. And here is a <a href="http://arstechnica.com/tech-policy/2014/05/heres-how-not-to-get-sued-when-reviewing-online-products/">piece about "how not to get sued when reviewing" products online.</a> As <a href="http://www.nytimes.com/2010/06/01/us/01slapp.html?pagewanted=all&_r=0">this New York Times article</a> explains, strong anti-SLAPP statutes in some states can sometimes be helpful to posters who get sued for statements of protected opinion, but many states have weak laws or no anti-SLAPP laws at all. For more about the law of libel, please see <a href="http://www.rightsofwriters.com/search/label/Libel">these earlier posts.</a></div>
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Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com3tag:blogger.com,1999:blog-3094213262059652791.post-80897978998862936432011-09-12T23:18:00.001-04:002011-09-12T23:40:06.168-04:00"Any Damn Fool Can Be Accurate -- and Dull": Can I Be Liable to My Readers for Lying About Myself?<span class="Apple-style-span" style="font-family: inherit;">In 1929, actress Joan Lowell published a memoir of her childhood entitled <i><a href="http://www.amazon.com/Cradle-Deep-Joan-Lowell/dp/1417916672/ref=sr_1_1?ie=UTF8&qid=1313605261&sr=8-1">The Cradle of the Deep</a>. </i><a href="http://articles.latimes.com/2008/mar/14/entertainment/et-cradle14">According to<i> The Los Angeles Time</i><i>s</i></a>, Lowell reported how her sea-captain father had raised her on a trading ship, the <i>Minnie A. Caine</i>, until she was 17. She learned her first swear words at age two, witnessed a man being eaten alive by a shark at age 16, personally harpooned a whale, and occasionally played strip poker with the all-male crew. When the ship caught fire off Australia, Lowell managed to swim three miles to safety with a kitten clinging to her back. <i>Cradle of the Deep</i> was a Book-of-the- Month Club selection, sold more than 100,000 copies, and was slated to be adapted into a talking movie produced by D.W. Griffith. But then Lowell's childhood neighbors spoiled the fun and revealed to the press that her story was almost entirely bilge water. Although Lowell's father was, in fact, a sea captain, Lowell herself had spent only a few months at sea and had lived most of her youth high-and-dry in Berkeley, California. When reporters questioned her about the factual "inconsistencies," Lowell explained that a writer's first duty is to tell a good story. "Any damn fool can be accurate -- and dull," she said. The Book-of-the-Month Club offered refunds to book buyers, but took no legal action against Lowell. There's more about Lowell and a great picture <a href="http://www.berkeleyside.com/2011/05/24/born-in-berkeley-joan-lowell/">here</a></span><span class="Apple-style-span" style="font-family: inherit;">.</span><br />
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If Joan Lowell had published her "memoir" today, she would have run a high risk of being sued by class action lawyers purporting to represent readers duped by her deception. Make no mistake, if you lie about yourself in your memoirs, you are courting legal liability to your publisher, as well as public disgrace if you are discovered. But how likely are faux memoirists to be found liable <i>to their readers</i>? And should the courts entertain duped readers' claims at all? Here are some thoughts:<br />
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1. There is a long and colorful history of writers telling bald-faced lies about themselves in memoirs and autobiographies. <a href="http://en.wikipedia.org/wiki/Fake_memoirs">An amusing Wikipedia article</a> describes 32 instances of "fake memoirs" in which "a wholly or partially fabricated autobiography, memoir, or journal of an individual is presented as fact." And a few years ago <i>The New York Times</i> published an article headlined "<a href="http://www.nytimes.com/2008/03/08/books/08fakes.html">A Family Tree of Literary Fakers</a>,<i>" </i>profiling, among others, <a href="http://www.nytimes.com/2008/03/04/books/04fake.html?ref=margaretseltzer">Margaret Seltzer</a>, author under the pseudonym Margaret Jones of a largely fabricated gang memoir, <a href="http://www.amazon.com/Love-Consequences-Memoir-Hope-Survival/dp/1594489777"><i>Love and Consequences</i></a><i>; <a href="http://topics.nytimes.com/top/reference/timestopics/people/a/laura_albert/index.html?inline=nyt-per">J.T. LeRoy</a>,</i> who wrote two "memoirs" before <i>New York Magazine</i> revealed that LeRoy's life was an elaborate hoax perpetrated by Laura Albert; and <a href="http://en.wikipedia.org/wiki/Binjamin_Wilkomirski">Binjamin Wilkomirski</a> who wrote <i><a href="http://www.amazon.com/Fragments-Memories-Childhood-Binjamin-Wilkomirski/dp/080521089X/ref=sr_1_1?ie=UTF8&qid=1315763102&sr=8-1">Fragments</a>,</i> a memoir of his boyhood in a concentration camp -- a story marred in the minds of some readers by the fact that<span class="Apple-style-span" style="line-height: 19px;"> the author was later revealed to have "spent the war in relative comfort in Switzerland." <span class="Apple-style-span" style="font-family: inherit;"> But my favorite memoir controversy revolves around Lillian Hellman's <a href="http://www.amazon.com/Pentimento-Back-Books-Lillian-Hellman/dp/0316352888/ref=sr_1_1?ie=UTF8&qid=1315765166&sr=8-1"><i>Pentimento</i></a>, a book that I read with pleasure years ago and which is filled with literary gossip and vinegary anecdotes. Yet to this day, it has never been clear whether Hellman really smuggled $50,000 in a fur hat to help the anti-Nazi resistance (a story from <i>Pentimento</i> that was made into the movie <i>Julia) </i>or merely inserted herself into the life story of Muriel Gardiner Buttinger -- a possibility discussed in <a href="http://scandalouswoman.blogspot.com/2008/08/uncivil-wars-lillian-hellman-vs-mary.html">this fascinating post.</a> To my knowledge, no reader ever sued Hellman, although her veracity was very much at issue in <a href="http://www.slate.com/id/2075251/">the long-running libel case</a> she brought against the novelist Mary McCarthy.</span></span><br />
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2. Of course, anyone can sue anybody for just about anything under our legal system, but, while there are doubtless factual distortions in <u>many</u> memoirs and autobiographies, lawsuits by readers against authors for alleged false accounts of their own lives are rare. <a href="http://articles.boston.com/2011-06-24/ae/29699981_1_class-action-penguin-group-plaintiffs">(Only two prior to 2011-- according to this <i>Boston Globe</i> blog post.)</a> Of course,when you make false (and defamatory) statements <i>about others</i>, you are cruising for a libel lawsuit (as discussed <a href="http://www.rightsofwriters.com/search/label/Defamation">in these past RightsofWriters posts</a>), but only a very few lawsuits on behalf of readers against memoirists or autobiographers for lying about themselves have been "successful" (by some definition of success) for the plaintiff readers -- or even for their lawyers. Two reasons: (a) it is difficult to articulate how a false memoir materially "damages" a reader; and (b) ordinarily no one reader has a financial stake exceeding the cost of the book and therefore has no incentive to sue. Indeed, I do not know of a single false memoirs case, brought on behalf of readers, that has resulted in a judgment on the merits. (If you know of one, please email me.) The cases I've read about have all been settled (like most civil lawsuits) or eventually withdrawn. So it remains to be seen whether a case of this kind is ultimately winnable on the law. <br />
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3. Because an individual reader doesn't have a sufficient economic incentive to file a lawsuit, the legal threat to the faux memoirist generally takes the form of a class action lawsuit -- i.e., lawyers who are seeking to represent the interests of an entire class of readers who, like a few specifically named plaintiffs, were duped into buying a work that was fictionalized in some respects when they believed, at the time of purchase, that it was true. As reported in <a href="http://blogs.wsj.com/law/2011/06/29/book-authors-beware-the-class-action-lawsuit-may-be-coming-your-way/">this <i>Wall Street Journal</i> article</a>, there has been a proliferation of putative class actions against authors this year: i.e., a total of three lawsuits -- two of which involved the same book. (I use the term "putative" because a case is not a full-fledged class action unless and until a judge "certifies" the class.)<br />
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4. From the lawyers' point of view, the most successful "duped readers" lawsuit arose from <a href="http://en.wikipedia.org/wiki/James_Frey">James Frey's</a> memoir of alcohol and drug addiction, <i><a href="http://www.amazon.com/Million-Little-Pieces-James-Frey/dp/0307276902/ref=sr_1_1?ie=UTF8&qid=1315749311&sr=8-1">A Million Little Pieces</a>. </i>Frey famously admitted to Oprah that he had greatly exaggerated details of his personal experience, claiming, for example, to have been jailed for 87 days, when, in fact, he had been detained by police for only a few hours. Thirteen class action lawsuits were filed against Frey and his publisher, Random House; the cases were eventually consolidated and settled in 2007 with the payment of $738,000 in attorneys' fees, and the promise of a refund of the book price to any reader who claimed one. But how much do readers really care about false memoir kerfuffles? <a href="http://dearauthor.com/features/industry-news/random-house-to-settle-james-frey-class-action-suit/">As reported by DearAuthor.com</a> only 1,729 readers bothered to submit a refund claim, despite the fact that Random House spent $432,000 advertising and administering the settlement. Frey's book sold over 5,000,000 copies, so 1,729 claims represents a little more than 3/100ths of 1 percent of total readers. Not exactly a grassroots readers' revolt. For an argument that Frey's and Random House's conduct should not have resulted in any legal liability (because Frey's book served its intended purpose -- providing enjoyable reading), see "<a href="http://iplj.net/blog/wp-content/uploads/2009/09/Note-A-MILLION-LITTLE-MAYBES-THE-JAMES-FREY-SCANDAL-AND-STATEMENTS-ON-A-BOOK-COVER-OR-JACKET-AS-COMMERCIAL-SPEECH.pdf">A Million Little Maybes</a>," by Samantha Katze.<br />
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5. Earlier this year, author Jon Krakauer and<span class="apple-converted-space"> </span><i>60 Minutes</i><span class="apple-converted-space"><i> </i></span>challenged the truthfulness of key anecdotes in the book <i><a href="http://www.amazon.com/Three-Cups-Tea-Mission-Peace/dp/1606862170/ref=sr_1_1?s=books&ie=UTF8&qid=1315743993&sr=1-1">Three Cups of Tea</a> </i>by Greg Mortenson. Although <a href="http://www.bozemandailychronicle.com/news/article_4d3125cc-67d7-11e0-b861-001cc4c002e0.html">Mortenson has publicly defended the book</a> as a compressed version of actual events, two would-be class action lawsuits were filed against him. <a href="http://courthousenews.com/2011/06/09/tea.pdf">Here is the complaint</a> in an Illinois action in which a plaintiff-reader alleged violations of a consumer deception statute, breach of contract, and unjust enrichment. The Illinois case was later withdrawn and the claim consolidated with another lawsuit in Montana (<a href="http://www.tdbimg.com/files/2011/05/06/-mortensoncomplaintclass-action_125637269079.pdf">complaint here</a>) which made certain additional claims that Mortenson's alleged falsehoods duped some people into making contributions to a charity Mortenson helped to promote. Mortenseon recently moved to dismiss the complaint (AP's description <a href="http://www.google.com/hostednews/ap/article/ALeqM5jCGp1OxWP4r1rmETDCv6zaCiwydA?docId=0d04013d005549c99c45ebdd2a17e00c">here</a>), and there may soon be more news about the case.<br />
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6. Also this year, a would-be class action was filed against former President Jimmy Carter in connection with his memoir/history/polemic <a href="http://www.amazon.com/Palestine-Peace-Apartheid-Jimmy-Carter/dp/0743285026/ref=sr_1_1?ie=UTF8&qid=1315770643&sr=8-1"><i>Palestine: Peace Not Apartheit</i></a>. The legal claims resembled those in the Frey lawsuit: breach of contract, unjust enrichment, and violation of a consumer fraud statute, with the addition of common law claims for fraud and negligent misrepresentation. <a href="http://www.scribd.com/doc/48074183/Carter-Complaint-Lawsuit-Against-Jimmy-Carter">Copy of the complaint here.</a> Most of the statements about which the plaintiffs complained concern alleged misdescriptions of events in the Middle East, not of Carter's own life, and, as such, raise a set of concerns that are different from Frey's book, including the constitutional protections for political opinion. Mere factual mistakes seldom form the basis for successful claims against writers or publishers, as discussed in a prior post: <a href="http://www.rightsofwriters.com/2011/03/oops-i-poisoned-my-readers-can-i-be.html">"Can I Be Liable for Publishing Mistaken Information?"</a> Plaintiffs sought to overcome this obstacle by alleging that President Carter had intentionally misstated the facts. Last I heard, however, plaintiffs had <a href="http://www.courthousenews.com/2011/05/06/36401.htm">voluntarily dismissed the complaint</a>. <a href="http://www.blogger.com/"></a><br />
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7. L<span style="color: black;">awyer and writer Helen Gunnarson (who tweets as @HelenGunnar) inspired this meditation on faux memoirs, contacting me a few weeks ago about an article she was writing on the Mortenson case. As I told Helen, and as you have probably inferred, I am skeptical about the wisdom of imposing legal liability on writers for lying to their readers. Don't get me wrong. I don't think memoirists should just make things up, without at least clearly disclosing their <i>modi operandi</i> to their readers. However, I believe fabrication is primarily an ethical issue, not one for the courts. I largely share the views expressed in <a href="http://latimesblogs.latimes.com/jacketcopy/2011/06/another-silly-lawsuit-against-greg-mortenson-over-three-cups-of-tea.html">this <i>Los Angeles Times</i> post</a></span><span style="color: black;"> that lawsuits against memoirists are "silly."</span><br />
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<span style="color: black;">8. Helen told me an anecdote about memoirist Mary Karr deciding not to write about an event that she vividly recalled because friends convinced her it could not have happened the way she remembered it. As <span style="color: black; font-family: inherit;">Karr <a href="http://www.niemanstoryboard.org/2010/07/28/mary-karr-memoir-and-the-truth-mayborn-conference-2010/">has flatly said</a>,</span><span style="color: black;"><span class="Apple-style-span" style="font-family: inherit;"> “I try not to write anything not true.”</span></span></span><span style="color: black;"> That worthy sentiment strikes me as the ethical pole star of memoir writing, but as memoirist William Loizeaux <a href="http://www.csmonitor.com/2006/0208/p09s02-coop.html">observes in this article</a>, "remembering is always a tricky business." Loizeaux insists that </span><span class="Apple-style-span" style="font-family: inherit;">"The line that should be most closely tended is the line of trust between writer and reader." The farther that the memoirist departs from factual certainty, the greater the ethical duty on the memoirist to signal clearly to his readers that they are entering the realm of speculation or invention. Loizeaux again:</span><br />
<blockquote>when a memoirist writes, "we must have wept, being a family of inveterate weepers," we understand that a lachrymose scene to follow is informed imagination. These words are from Mary Karr's <i>Liars' Club</i>, which attempts to establish trust by letting the reader know how much truth is being told.</blockquote><span style="color: black;">9. Good intentions aside, I assume that virtually all memoirs and autobiographies are littered with falsehoods. Most inaccuracies are probably inadvertent, arising from the fallibilities of human perception and memory. But some varieties of falsehood are, I suggest, inherent in the modern craft of memoir. As a lawyer, I am repeatedly struck by the inability of witnesses, who are sworn to tell the truth and who believe they are telling the truth, to accurately repeat conversations that occurred only a few months before their testimony. As a result, I have no faith whatsoever that any dialogue recorded in a memoir is “true” in any literal sense. Similarly, in light of the <a href="http://www.cbsnews.com/stories/2009/03/06/60minutes/main4848039.shtml?tag=contentMain;contentBody">repeatedly demonstrated fallibility of eyewitness testimony</a>, there is little reason to believe that the proliferation of physical details that give memoir its verisimilitude are genuine. The dialogue and details in a memoir are, at best, psychological truths. As one blogger explains, there are at least <a href="http://cdw1103.wordpress.com/2011/07/18/mary-karr-and-the-sticky-problem-writing-the-truth/">three conflicting varieties of truth competing for the allegiance of the memoirist</a> </span><span class="Apple-style-span" style="background-attachment: initial; background-clip: initial; background-color: white; background-image: initial; background-origin: initial;">(</span>"the facts as they are, the facts as I see them, and the facts as I feel them"); he goes on to suggest that James Frey, Greg Mortensen, and David Oliver Relin (Mortenson's co-author) were only trying "to get us to feel their emotional truths a little too much.” Well maybe. I am more inclined to agree with Brian Hale, a professor at Ohio State University, who<span style="color: black;"><span class="Apple-style-span" style="font-family: inherit;"> <a href="http://www.csmonitor.com/2006/0118/p14s01-bogn.html">told <i>The Christian Scientist Monitor</i></a>: "The memoir is a strange kind of performance. It's halfway between fiction and testimony . . . Anybody in his right mind knows that a memoir is unreliable." Yes, there is a difference between reporting mistaken memories about our lives and willfully lying about our lives, but do we really want legal liability to readers to turn on that difference? Should Joan Lowell have been liable to her readers for her tall tales? I don't think so. </span></span><br />
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10. Again, this is not to say that lying in memoirs is -- or should be -- free of legal consequences. For example, if you lie in your memoirs, you are likely in breach of a warranty in your publishing agreement. The standard Simon & Schuster contract contains a promise that "if the [author's work] is not a work of fiction, all statements in the [author's work] asserted as facts are true or based upon reasonable research for accuracy." A breach of that warranty may not give the publisher a direct claim against its author for lying, but it does give the publisher the right to have the author indemnify the publisher for all losses it sustains as a result of claims against it arising from the authors' lies. If an author breaches her promise to tell the truth, and the publisher is damaged as a result (e.g., is sued and/or obliged to provide refunds), the warranty may oblige the author to cover the publisher’s liability and attorneys’ fees. I do not know whether Random House sought repayment from James Frey in connection with the class action settlement payments or the cost of the defending the thirteen lawsuits, but a lying memoirist is certainly playing with fire. Just ask J.T. LeRoy a/k/a Laura Albert, <a href="http://www.guardian.co.uk/books/2007/aug/01/news">who was ordered to pay</a> $116,000 in damages and $350,000 in attorneys' fees for allegedly defrauding a film production company<span class="Apple-style-span" style="background-color: white; color: #333333; line-height: 18px;"><span class="Apple-style-span" style="font-family: inherit;"> by selling the screen rights to LeRoy's autobiography that turned out to be fiction.</span></span><br />
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11. Finally, you might want to take a look at the work of Ben Yagoda (author of <a href="http://www.amazon.com/Memoir-History-Ben-Yagoda/dp/1594484821/ref=sr_1_1?ie=UTF8&qid=1311819588&sr=8-1"><i>Memoir: A History</i></a>) and Dan DeLorenzo. They have have devised this <a href="http://www.niemanstoryboard.org/2011/07/28/yagoda-memoir-truth-charts-delorenzo/">amusing rating system</a> for the "truthiness" (to adopt Stephen Colbert's <a href="http://en.wikipedia.org/wiki/Truthiness">great coined term</a>) of memoirs. Saint Augustine comes out with high ratings, <a href="http://www.nytimes.com/2008/03/05/books/05fake.html?pagewanted=1">Margaret Jones/Seltzer</a>, not so high.</div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com9tag:blogger.com,1999:blog-3094213262059652791.post-20884730365342733502011-07-04T09:15:00.001-04:002011-07-04T09:26:33.992-04:00The Unoriginal Sin: Differences Between Plagiarism and Copyright Infringement<div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">Plagiarism, which many people commonly think has to do with copyright, is not in fact a legal doctrine. True plagiarism is an ethical, not a legal, offense and is enforceable by academic authorities, not courts. Plagiarism occurs when someone – a hurried student, a neglectful professor, an unscrupulous writer – falsely claims someone else’s words, whether copyrighted or not, as his own. Of course, if the plagiarized work is protected by copyright, the unauthorized reproduction is also a copyright infringement.</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">By the way, I cribbed every word of that first paragraph from <i>Black's Law Dictionary,</i> which, in turn, was quoting (with attribution) from <a href="http://www.law.stanford.edu/directory/profile/25/Paul%20Goldstein/">copyright guru Paul Goldsteins'</a> book <a href="http://www.amazon.com/Copyrights-Highway-Gutenberg-Celestial-Jukebox/dp/0804747482/ref=sr_1_1?ie=UTF8&qid=1309718812&sr=8-1"><i>Copyright's Highway</i></a>. If I hadn't bothered to mention Professor Goldstein, I would have been guilty of the sin of plagiarism, but not the actionable offense of copyright infringement. (As a matter of copyright law, my quotation from Goldstein is, I trust, safely within the bounds of <a href="http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/">"fair use."</a>)<br />
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In the words of Merriam-Webster Online, "plagiarism" is the act of steal[ing] and pass[ing] off (the ideas or words of another) as one's own; use [of] (another's production) without crediting the source." By contrast, "copyright infringement," occurs "when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner." (See the <a href="http://www.copyright.gov/help/faq/faq-definitions.html">definitions section of the U.S. Copyright Office website</a>.) Similar, but not exactly the same.</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
<div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">Many acts of plagiarism are not copyright infringements. And many acts of copyright infringement do not arise from plagiarism. This post seeks to clarify the differences between the two transgressions -- differences that writers (and sometimes judges) often tend to blur. Indeed, even Professor Goldstein engaged in a bit of blurring; it would have been more precise to say that "if the plagiarized work is protected by copyright <u>and the copying is substantial</u>, the unauthorized reproduction <u>may sometimes also be</u> a copyright infringement."</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div></div>Copyright infringement is a legal offense against property rights, whereas plagiarism is an ethical failure to honor one's intellectual forefathers and foremothers. Plagiarism does not amount to copyright infringement unless (a) the plagiarist has republished copyrightable expression of another, and (b) the amount of copied expression exceeds the boundaries of fair use. For example, facts and ideas are not protected by copyright; only original "expression" is. So, an academic who harvests facts from another scholar without giving due credit may be a plagiarist, but, if she expresses those facts and ideas in her own words, she is not an infringer. Or to take another example, works first published in the U.S. before 1923 are no longer in copyright. Consequently, a novelist who lifts sentences and scenes from the short story sequence <i>Winesburg, Ohio</i> (first published in 1919 and now in the public domain in the U.S.) without crediting Sherwood Anderson would also be a plagiarist, but not an infringer. When I pass off as my own original work ideas or public domain expression or sufficiently brief snippets of expression taken from others (e.g., my quote taken from Goldstein, devoid of quotation marks), I may have -- depending upon the context -- committed plagiarism because, in the words of Judge Richard Posner, "readers of the new work are invited to think that those features are the inventions or discoveries of the plagiarist." Yet I could not successfully sued for copyright infringement.<br />
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Conversely, if I quote too lengthily from the copyright-protected works of others, I may be a copyright infringer, even though I have carefully and fully acknowledged the author and work that I am quoting. Thus, for example, <a href="http://scholar.google.com/scholar_case?case=5897920406927075288&hl=en&as_sdt=2&as_vis=1&oi=scholarr">in one well-known copyright case</a>, the poet Ian Hamilton was found to have committed infringement by quoting too extensively from J.D. Salinger's unpublished letters in a biography of Salinger, even though Hamilton meticulously footnoted each quotation.<br />
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Examples of plagiarism are legion. The Wikipedia offers a long, varied, and fascinating <a href="http://en.wikipedia.org/wiki/List_of_plagiarism_controversies">list of plagiarism controversies</a>. (Did you know that Helen Keller was caught up in a plagiarism scandal?) Caslon Analystics of Australia has published <a href="http://www.caslon.com.au/plagiarismcasesnote.htm">another inventory of alleged incidents of literary plagiarism</a>. Wikipedia has a discussion of the theory and history of plagiarism <a href="http://en.wikipedia.org/wiki/Plagiarism#cite_note-Lynch02-6">here</a>. And Caslon Analytics's useful overview of plagiarism (again, with an Australian slant) may be found <a href="http://www.caslon.com.au/ipguide17.htm">here</a>,<br />
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I have just finished reading <a href="http://en.wikipedia.org/wiki/Richard_Posner">Judge Posner's</a> book entitled <a href="http://www.amazon.com/Little-Book-Plagiarism-Richard-Posner/dp/037542475X/ref=sr_1_1?ie=UTF8&s=books&qid=1309448202&sr=8-1">The Little Book of Plagiarism</a>, which provoked this post. Judge Posner touches upon many of the famous unoriginality controversies of recent years, including those involving <a href="http://www.slate.com/id/2061056/">Doris Kearns Goodwin</a>, <a href="http://www.slate.com/id/2198543/">Joe Biden</a>, <a href="http://www.slate.com/id/2060618/">Stephen Ambrose</a>, <a href="http://www.washingtontimes.com/news/2004/sep/28/20040928-111006-3358r/">Laurence Tribe</a>, and <a href="http://www.thecrimson.com/article/2006/4/23/students-novel-faces-plagiarism-controversy-beditors/">Kaavya Viswanathan</a>. (As Judge Posner points out, an uncommon number of such scandals seem to implicate Harvard personalities, not because plagiarism is especially common at Harvard, but because exposing the lapses of the academic elite gives the press and readers an extra shot of schadenfruede; see the <a href="http://authorskeptics.blogspot.com/">Harvard Plagiarism Archive here</a> for a master list of such controversies since 2002.) <br />
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Judge Posner offers an especially good explanation as to why some unacknowledged copying is plagiarism, and some is not:<br />
<blockquote>A judgment of plagiarism requires that the copying, besides being deceitful in the sense of misleading the intended readers, induce reliance by them. </blockquote><blockquote><div style="text-align: center;">* * * *</div>The reader has to care about being deceived about authorial identity in order for the deceit to cross the line to fraud and thus constitute plagiarism.</blockquote>I am also indebted to Judge Posner for teaching me the word "cryptomnesia," which refers to "unconscious plagiarism, a sin of neglect rather than intention and, therefore, less blameworthy." When caught in the act, almost all plagiarists, including Helen Keller, plead cryptomnesia. But Judge Posner cites research suggesting that cryptomenesia is almost always a fallacious excuse when the copying consists of "verbal passages of more than trivial length."<br />
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The legal remedies for copyright infringement are powerful and plainly set forth in federal law. (See <a href="http://www.copyright.gov/title17/92chap5.html">Chapter 5 of the U.S. Copyright Act.</a>) But, as per Professor Goldstein's observation quoted above, the legal remedies, if any, for plagiarism are by no means clear-cut.<br />
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For many years, authors (and other creative people) sought to use the federal Lanham Act as a basis for litigation against those who used their work without proper authorization or credit. That legal strategy reached a dead end when the Supreme Court held in the 2003 case of <a href="http://scholar.google.com/scholar_case?case=13445605668854417212&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><i>Dastar v. Fox</i></a> that the Lanham Act cannot be used to "creat[e] a cause of action for, in effect, plagiarism -- the use of otherwise unprotected works and inventions without attribution." Law geeks may wish to take a look at <a href="http://www.bu.edu/law/central/jd/organizations/journals/bulr/volume85n4/Lastowka.pdf">this law review article</a> -- and <a href="http://epubs.utah.edu/index.php/ulr/article/viewFile/22/16">this one, too</a> -- deploring how <i>Dastar </i>and its progeny effectively eliminated the Lanham Act as a remedy for failure to give credit where credit is due. Without resort to the Lanham Act, victims of plagiarism -- who do not also have a viable copyright claim -- are left with few means of legal recourse. In commercial settings, a buyer of a book riddled with plagiarism might theoretically seek to use consumer deception statutes to achieved redress, but there is no economic incentive to sue to recover the price of a book, and a plagiarized author may not even have standing to assert such a claim. See <a href="http://www.rightsofwriters.com/2011/02/what-can-you-do-if-your-co-author.html">this earlier post</a> discussing some less-than-satisfactory post-<i>Dastar</i> options, including ethical complaints to professional organizations and academic institutions.<br />
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After <i>Dastar</i>, shaming (either in private communications with the plagiarists' supervisors or in published accusations) remains the most effective tool for attacking plagiarism and plagiarists. Timothy Noah of <i>Slate </i>offered <a href="http://www.slate.com/id/2061281/">this original idea</a> for formalizing the shaming process in the book publishing industry; alas, it is not likely ever to be adopted. And beware: all too often, accused plagiarists respond to shaming efforts with libel lawsuits against their accusers, as <a href="http://www.skidmore.edu/~rscarce/Writing_Tips/Judge_or_Judge_Not%3F.html">discussed in this article from <i>The Chronicle of Higher Education</i>.</a></div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
In Europe, the legal doctrine of <a href="http://www.caslon.com.au/ipguide18.htm">droit moral</a> or moral rights gives authors the ability to claim a right of attribution in their works. However, even in Europe, droit moral lawsuits are not routinely used to provide a remedy for garden variety plagiarism. The United States recognizes droit moral or moral rights only with respect to certain limited categories of visual arts. (See this brief <a href="http://cyber.law.harvard.edu/property/library/moralprimer.html">summary of protections accorded by the Visual Artists Rights Act </a> in the United States.) Writers do not have equivalent protections for the "right of attribution."<br />
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</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">Interestingly, in June 2011, the Third Circuit Court of Appeals seems to have imported into the Digital Millennium Copyright Act ("DMCA") what is, in essence, a kind of cause of action for plagiarism in certain narrow circumstances. The kinky case involved two New Jersey shock jocks, who hired a photographer to take a picture of them, apparently nude, with their manliness concealed by a sign bearing their station's logo, WKXW. The photograph originally appeared in <i>New Jersey Monthly. </i> Later, however, the station scanned the photograph, stripped out the photographer's credit line (without permission), posted it on the station's website, and invited fans to manipulate the image. The photographer sued for copyright infringement and, based upon some on-air comments that the shock jocks made about him, defamation. The district court dismissed the photographer's claims, but the Third Circuit reinstated them, concluding, among other things, that the photographer's credit line was "copyright management information," and the digital manipulation and removal of the credit potentially violated the DMCA. <a href="http://www.hollywoodreporter.com/thr-esq/how-two-nude-radio-djs-202003">Here is the always-entertaining Eriq Gardner's summary of the case.</a> And you can see a portion of the image in question in <a href="http://title17.net/2011/06/third-circuit-issues-important-dmca-and-fair-use-ruling/">this analysis of the case by New York lawyer Peter Fakler</a>. You can <a href="http://www.ca3.uscourts.gov/opinarch/102163p.pdf">read the entire decision here</a>. Of course, the DMCA does not provide a tool for addressing plagiarism outside of the context of digital manipulation, but it is an interesting new tactic in the age-old wars over plagiarism. <br />
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</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><a href="http://www.nytimes.com/2010/08/02/education/02cheat.html">This New York Times article</a> suggests that plagiarism is on the rise among college students and others, who find it tempting and easy to cut and paste into their papers the expression of others available the web. <a href="http://www.plagiarism.org/plag_facts.html">Plagiarism.org's website</a> cites a national survey published in <i>Education Week</i> that found that 54 percent of students admitted to plagiarizing from the internet. Schools have responded by requiring the use of plagiarism-detection software, such as <a href="http://turnitin.com/static/index.php">Turn-It-In</a>, created by IParadigms. </div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">My firm recently handled case where plagiarism detection intersected with alleged copyright infringement. Several students from McLean High School in northern Virginia tried to turn the tables on IParadigms, and sued the company for copyright infringement. In checking for plagiarism, Turn-It-In software compares student papers not only to a huge textual database drawn from the internet, but also to an archive consisting of virtually all past papers submitted by students for scanning and review by the Turn-It-In software. This archive is important to the review process because it enables the software to determine when students have copied from each other rather than copying from the internet. The database of student papers is not published in any way, but merely resides on computers in the form of digital files used to carry out the comparisons. The students contended that, in maintaining copies of their papers in these digital files, IParadigms infringed their copyrights in those papers. In submitting their papers, the students had agreed not to assert any claims against IParadigms, but they argued that the agreement was against their will and otherwise unenforceable. The courts disagreed and found that the archiving of the students' papers was effectively consented to and, in any event, a <a href="http://www.copyright.gov/fls/fl102.html">"fair use</a>." Here is the <a href="http://www.nyls.edu/user_files/1/3/4/30/84/85/114/890/562%20F.3d%20630%20A.V.%20v.%20iParadigms.pdf">opinion of the Fourth Circuit Court of Appeals</a> affirming the lower court's decision of non-infringement. (My firm represented IParadigms.)<br />
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One of the things I do in my legal practice is review manuscripts before they are published for potential legal problems. The legal vetting task is fairly clear-cut when it comes to identifying issues such as libel or invasion of privacy. However, it is often nearly impossible for a lawyer (or an editor) to spot potential copyright infringement when an author has plagiarized his sources, failing to use quotation marks or endnotes. As a result, some publishers are now sometimes using anti-plagiarism software to detect unauthorized copying in manuscripts, particularly in high profile books by celebrity authors. <a href="http://www.hum.utah.edu/~bbenham/Phil%207570%20Website/pdfs-Authorship/Journals%20May%20Soon%20Use%20Anti-Plagiarism%20Software%20on%20Their%20Authors%20-%20Chronicle.com.pdf">According to this article in <i>The Chronicle of Higher Education</i></a>, academic journals are similarly "turn[ing] the anti-plagiarism software that professors have been using against their students on the professors themselves."<br />
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As Judge Posner is at pains to point out, what constitutes plagiarism and what does not is not always clear. Many universities publish useful online resources for identifying and preventing plagiarism, including <a href="http://www.library.ucla.edu/service/6386.cfm">this one maintained by the UCLA libraries.</a> And here is the American Historical Association's <a href="http://www.historians.org/pubs/free/professionalstandards.cfm">Statement of Standards of Professional Conduct</a>, which includes a fine discussion of plagiarism, and the sage advice: "No matter what the context, the best professional practice for avoiding a charge of plagiarism is always to be explicit, thorough, and generous in acknowledging one's intellectual debts."<br />
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Which reminds me, I almost neglected to mention that the headline to this post is a knock-off of the title of <a href="http://www.poynter.org/uncategorized/85617/the-unoriginal-sin-2/">this great article</a> by Roy Peter Clark on plagiarism in the newsroom, which originally appeared in <i>The Washington Journalism Review. </i>Clark's article is filled with examples of journalistic plagiarism and offers good counsel on distinguishing between permissible re-purposing and unethical, intellectual fraud. <br />
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Actually the phrase "unoriginal sin," has been used by many other writers in connection with articles about plagiarism. (See <a href="http://www.google.com/search?sourceid=chrome&ie=UTF-8&q=%2Bplagiarism+%2B%22unoriginal+sin%22">this Google search report</a>.) Likely, this is the result of independent creation -- numerous writers separately coming up with the same pun, though it wasn't at all original on my part. Suffice it to say that not every lifted phrase or unattributed joke is a sin. Remember, Judge Posner's point that there must be some element of deceit and the originator and/or the reader/listener must have some reason to care about the undisclosed repurposing. This well-known anecdote illustrates the irrepressible tradition of passing off the jokes of others as one's own:<br />
<blockquote>After hearing his friend James McNeill Whistler make an especially witty remark, Oscar Wilde said, "My God, James, I wish I had said that." To which Whistler replied, "You will, Oscar, you will."</blockquote></div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com18tag:blogger.com,1999:blog-3094213262059652791.post-74855102957324384612011-05-26T15:24:00.001-04:002011-05-26T15:37:18.842-04:00Cultivating a Healthy Loathing for "Work Made for Hire" AgreementsThe "work made for hire" clause is the bete noire of freelance writers. While the clause is frequently very unfair to authors, it is not unfair in all circumstances; it's never your friend, but there are times when it is not necessarily your enemy. Following are twelve questions and answers that may help you to cultivate a healthy, not-unduly-paranoid loathing for "work made for hire" agreements.<br />
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But first, in digesting this somewhat geeky post, it is useful to know that, as explained <a href="http://www.rightsofwriters.com/2010/12/can-i-say-my-blog-is-copyrighted-basics.html">here</a>, any "original work of authorship" is subject to copyright protection the moment that it is "fixed in any tangible medium of expression." For example, a love letter is instantaneously subject to copyright protection as it flows out beneath your fountain pen. By way of further background, the U.S. Copyright Act uses the term "author" to refer to all types of creators: writers, composers, visual artists, choreographers, filmmakers, architects, musicians, computer software programmers -- anyone who creates a copyrightable work. (See <a href="http://www.copyright.gov/title17/92chap1.html#102">Section 102 of the Copyright Act</a> for a general list of the types of copyrightable works.) The "work made for hire" doctrine addresses the question: Who is the "author" of -- and the owner of the copyright in -- certain types of works at the moment when they come into existence? <br />
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<b>1. What is the essential difference between a "work made for hire" and the typical copyrightable work?</b> Ordinarily when you create a copyrightable work you are its "author" and, at least initially, the owner of the copyright. (See <a href="http://codes.lp.findlaw.com/uscode/17/2/201">Section 201(a) of the Copyright Act.</a>) A "work made for hire" is a notorious exception to that default principle. If a work qualifies as a "work made for hire," your employer (or the person or entity that commissioned you to create the work) is deemed the "author" and initial copyright owner, even if he/she/it contributed no copyrightable expression whatsoever to the work. In other words, the employer (or commissioning party) owns <u>all</u> rights in the work; you own none -- ever (unless you enter into a contract in which your employer -- or the commissioning party -- bestows some rights upon you). No wonder that the American Society of Journalists and Authors has called work-made-for-hire agreements "all rights contracts on steroids." (See the <a href="http://www.asja.org/pubtips/wmfh01.php">ASJA's excellent primer on all-rights agreements here.</a>) <br />
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<b>2. What practical difference does it make whether you sign a "work made for hire" agreement or simply grant broad rights in your work to the commissioning party? </b>There are two major downsides to a "work made for hire" relationship. First, as stated, you <u>never</u> have rights all in a work that you create on a "for hire" basis. Everything embraced by the copyright belongs, at all times, to the commissioning party. So, for example, if you were to create new works including characters or plot lines that appeared in the "work made for hire," you could be found to have infringed the commissioning party's copyright. Of course, <a href="http://www.rightsofwriters.com/2011/04/copyright-in-fictional-characters-can-i.html">as discussed in this earlier post</a>, an assignment of your entire copyright interest would put you in a similar "rightless" position. This brings me to the second major downside: under the Copyright Act, a writer who assigns his copyright at least retains a right to terminate that assignment between the 35th and 40th year after it is made. By contrast, a "work made for hire" is forever. Since you are not deemed to be the "author" of a "work made for hire," you or your heirs cannot exercise the termination right.<br />
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For example, in <a href="http://www.techdirt.com/articles/20100913/11504110989.shtml">the Bob Marley case</a>, the court found that five record albums recorded by the great reggae star between 1973 and 1977 were "works made for hire." Marley therefore never owned the copyrights, which belonged instead to the "employer," Island Records, a subsidiary of Universal Music Group. Consequently, Marley's family was unable to exercise the termination right to recapture ownership of the albums after 35 years and thereby negotiate a better financial deal for the rights going forward. Of course, the great majority of works created in any medium have no commercial value by the time the recapture right kicks in. However, if your work, like Bob Marley's, is one of the rare long-lived exceptions, the fact that you signed a "work made for hire" agreement instead of a simple grant of rights or even an outright copyright assignment could be crucial. An "all rights contract on steroids" indeed.<br />
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</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><b>3. How paranoid should you be about "work made for hire" clauses in contracts for your freelance work? </b>Only reasonably paranoid. For many types of mundane works, you may have no interest in ever creating derivative works or recapturing the copyrights in 35 years. Freelance advertising copy. Annual reports for corporations. Beer making instructions. Marketing brochures. Press releases. Technical writing. I wrote all of those kinds of works in my days as a freelancer, before going to law school, and I have never regretted for a moment having no copyright interest in them. On the other hand, I also published books, magazine articles, and op-ed pieces, and I would not have been pleased to sign "work made for hire" agreements for those works. When, as a freelancer, you create a novel, a short story, a non-fiction book, a significant piece of journalism, a poem, a song, a play, a screenplay, or a variety of other works into which you pour something of your soul and which have at least some potential to be re-purposed (e.g., turning them into longer works, or re-using characters) it is entirely rational to be reluctant to sign a "work made for hire" agreement or, for that matter, any form of "all rights" agreement. It's a complex personal, economic, and legal equation, which will vary from writer to writer and work to work. There are some areas of writing, such as multi-authored textbook publishing, where "work made for hire" arrangements are commonplace. There are other contexts in which a "work made for hire" contract is little more than a rights grab. The various conventions of particular markets for writers are beyond the scope of this post, but are addressed in some of the online and printed references mentioned below.</div><br />
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<div class="MsoPlainText"><b>4. All right, then, when is a work a "work made for hire." </b>Under <a href="http://www.copyright.gov/title17/92chap1.html#101">Section 101 of the U.S. Copyright Act</a>, a “work-made-for-hire” can arise in only two circumstances: (1) when you, as an “employee,” create any type of copyrightable work within the scope of your employment, or (2) when you, as a non-employee, are specially ordered or commissioned to create one of nine designated types of works <i>and</i> you and the commissioning party agree in writing that the work will be a “work made for hire.” </div><div class="MsoPlainText"><br />
</div><div class="MsoPlainText"><b>5. What are the tricky parts of the "employee" branch of the "work made for hire" doctrine? </b>The works you create for your employer within the scope of your employment are presumptively "works made for hire." No written agreement is required. For example, whatever I write for the law firm that employs me belongs to the firm, not to me. If my firm is paying me for written work that I create on firm premises during regular business hours with firm computers, I don't find it objectionable that the firm owns all rights to it. Controversies concerning employee-created "works made for hire" tend to arise in two areas. First, there may be disputes as to who qualifies as an "employee," such that the copyright vests in the employer, rather than an independent contractor or freelancer. That was the issue in <a href="http://en.wikipedia.org/wiki/Community_for_Creative_Non-Violence_v._Reid">the case of <i>Community for Creative Non-Violence v. Reid</i></a> in which the Supreme Court found that a sculptor was not an employee of the non-profit entity that retained him to create a sculpture. Second, there may be disputes as to whether a work is created "within the scope" of the employee's job responsibilities. If you work at <i>The New Yorker</i> as an editor during the day, your employer shouldn't own the short stories you are writing at home at night. While I am confident that <i>The New Yorker </i>does not make such an overreaching claim, other employers do sometimes include unfair anti-moonlighting clauses in their employment contracts or employee handbooks that purport to assert ownership over work created on the employees' own time. (See this <a href="http://www.seattle20.com/blog/Entrepreneurs-in-the-Workplace-or-Working-While-Being-You.aspx">amusing blog discussing IP and moonlighting in practical terms.</a>) Anti-moonlighting rules may sometimes involve a "copyright assignment" issue rather than a "work made for hire" issue, but, either way, employees are too often disadvantaged by such clauses.</div><div class="MsoPlainText"><br />
</div><div class="MsoPlainText"><b>6. In the non-employee/freelancer context, must there be a written agreement with the commissioning party in order for your work to be deemed a "work made for hire"?</b> Yes. If you are <u>not</u> an employee of the person or entity that commissions your copyrightable work, then, in order for the work to qualify as a “work made for hire,” there must be a written agreement between the parties, <u>signed</u> by both of them. These days, an inked signature on a piece of paper may not necessarily be required. But there must be something that qualifies as an “agreement” to which you personally affixed your name in some way. </div><div class="MsoPlainText"><br />
<b>7. Does a "work made for hire" agreement have to be made before you create your work? </b>Yes. The parties must agree before the work is created that it will be a "work made for hire" belonging to the commissioning party. Courts are divided on whether the parties can orally agree on a "work made for hire" arrangement beforehand, but wait until <u>after</u> the work is created to sign a written agreement. Beware of efforts to recharacterize a work as a "work made for hire" after the fact. Here is <a href="http://www.ivanhoffman.com/work2.html">Ivan Hoffman's blog post</a> on the regrettable practice of using after-the-fact check endorsements to memorialize the "work made for hire" status of a work.<br />
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<b>8. Does a "work made for hire" agreement have to include the magic words "work made for hire" for it to be effective? </b>Yes and no. Ordinarily the agreement should use verbatim the magic words “work for hire" or “work made for hire” in order to give rise to a valid "work made for hire" relationship. If it does not use those words, the agreement may be interpreted as giving rise to some other form of transfer of rights. But be careful: the courts have sometimes cut commissioning parties some slack in terms of the exact phrasing, as long as the intention is clear. An agreement that speaks of the work as being “specially ordered or commissioned” or created “at the direction and expense” of another might conceivably sneak by. (See the discussion "talismanic words" in <a href="http://scholar.google.com/scholar_case?case=16513068219655889014&hl=en&as_sdt=2&as_vis=1&oi=scholarr">this case.</a>)<br />
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<b>9. Do all specially-commissioned, copyrightable works created by freelancers qualify as "works made for hire"? </b>No. In an employer-employee relationship, any type of copyrightable work may be a "work made for hire." By contrast, in a non-employee/freelance situation, only a copyrightable work that falls within one of nine categories specified in Section 101 of the Copyright Act can properly be deemed a "work made for hire," namely:<br />
<blockquote>a work specially ordered or commissioned for use [1] as a contribution to a collective work, [2] as a part of a motion picture or other audiovisual work, [3] as a translation, [4] as a supplementary work, [5] as a compilation, [6] as an instructional text, [7] as a test, [8] as answer material for a test, or [9] as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.</blockquote>Not infrequently, through ignorance or subterfuge, a commissioning party will ask a freelancer to sign a "work made for hire agreement" for a type of work that can't be a "work made for hire." For example, even if your contract for a novel <i>says </i>that it is a "work made for hire," it probably isn't. Similarly, in the <i>Creative Nonviolence</i> case above, a contract characterizing a sculpture as a "work made for hire" failed because a sculpture does not fall within one of the nine categories. Usually, however, a sophisticated commissioning party will include a "belt an suspenders clause" that says, in essence, "if for any reason the work does not qualify as a 'work made for hire,' writer hereby assigns to the commissioning party all right, title, and interest in the work, including, but not limited to, all copyrights therein throughout the world." But, if there is only an assignment of copyright, rather than a "work made for hire" relationship, a writer would at least retain the right to terminate the transfer after 35 years (unlike the Bob Marley in the case discussed above).<br />
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<b>10. Are there other differences between a "work made for hire" and a conventional copyrighted work?</b> A few. For example, unlike a traditionally authored work, for which the duration of copyright in the United States is the life of the author plus 70 years, a "work made for hire" enjoys a term of copyright that runs for 95 years from the date of first publication or 120 years from the date of creation, whichever is shorter. But the essence of the "work made for hire" doctrine turns on copyright ownership and the absence of a termination right.</div><div class="MsoPlainText"><br />
<b>11. Are there any limits on what an employer or commissioning party can do with a "work made for hire"? </b> Not many. Such limits as there are come from areas of the law other than copyright. Right of publicity law or unfair competition law may prevent the proprietor of the work from using your name without your written permission. And you can, of course, enter into a contract with the proprietor that imposes upon him any terms you both agree upon, such as the duty to pay you royalties or to obtain your permission for certain uses. But absent a contract or right of publicity violation, the proprietor has free rein to create derivative works, combine the work with others, translate it, abridge it, change it, exploit it in all media -- the full scope of rights of a copyright owner.<br />
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<b>12. What should you do when you are asked to sign a "work made for hire" agreement in a context where you believe it is unfair?</b> Propose a license of less extensive rights as an alternative, which gives other party what he really needs, but not the many rights he really doesn't need. If that doesn't work, bargain for more money for derivative uses. Or ask that the commissioning party to assign the rights to you after a period of years. Of course, if you have little or no bargaining power, the commissioning party may tell you to take it or leave it. I you have a literary agent, she can offer you advice on the commercial realities of your particular situation. If you don't have an agent and if it is a commercially significant project, it may be prudent to seek the advice of a lawyer concerning the contract language and your legal options. See this earlier post on <a href="http://www.rightsofwriters.com/2010/12/44-places-where-writers-and-other.html">44 sources of free or low-cost legal help for writers.</a><br />
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There is a wealth of good advice on how to respond when presented with a "work made for hire" contract in the <a href="http://www.asja.org/pubtips/wmfh01.php">ASJA primer mentioned above.</a> <i><a href="http://www.amazon.com/Writers-Legal-Guide-Authors-Reference/dp/1581152302/ref=sr_1_1?s=books&ie=UTF8&qid=1292033071&sr=1-1">The Writer's Legal Guide</a> </i>also offers pointers on negotiating strategy, including the reminder that, if you do sign a "work made for hire" agreement, you should obtain a written promise of any authorship attribution you are seeking. <i>The Writer's Legal Guide </i>also sagely advises that you try to bargain for a promise that, if the commissioning party cancels the project for any reason, the copyright in the work will be assigned to you.<br />
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For general information of the "work made for hire doctrine," the place to start is <a href="http://www.copyright.gov/circs/circ09.pdf">Copyright Office Circular 9</a>. There is also a short, helpful discussion of "works made for hire" at <a href="http://www.keepyourcopyrights.org/copyright/rights/work-for-hire">the KeepYourCopyright.org site</a>. The Professional Artists League has posted a feisty <a href="http://www.stopworkforhire.com/site2/legal-perspective/">article on "work made for hire" abuses</a>; while it focuses on visual artists, writers confront many of the same abuses. New York lawyer Lloyd Jassin has <a href="http://copylaw.com/new_articles/wfh.html">written a good article on drafting</a> "work made for hire" agreements, written primarily from the point of view of a publisher seeking to acquire works on a "for hire" basis.<br />
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Finally, please note that this post is highly U.S.-centric. The "work made for hire" doctrine exists in some form in many countries, but the rules vary significantly from jurisdiction to jurisdiction.</div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com0tag:blogger.com,1999:blog-3094213262059652791.post-90816584211583182072011-04-30T09:03:00.000-04:002011-04-30T09:03:33.671-04:00The Agent from Hell and the Top Six Scams Targeting WritersPity the poor writers who chose the Deering Literary Agency of Nicholasville, Kentucky, to represent them. According to <i><a href="http://seattletimes.nwsource.com/html/books/2001917076_agentfromhell03.html">The Seattle Times</a>, </i>the founder of the agency, Dorothy Deering, was:<br />
<div><blockquote><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">an out-of-work bookkeeper saddled with a felony embezzlement conviction. By 1987, she had written a science-fiction novel and been swindled by three "fee agents" who promised to find her a publisher. Rather than react bitterly, though, she was inspired to start a new career: Taking advantage of aspiring writers just like her. </div></blockquote>Deering persuaded her clients to pay her thousands of dollars to edit, print, publish, and promote their books. Most ended up, in the words of <a href="http://www.washingtonpost.com/wp-srv/style/features/daily/scam092899.htm" style="font-style: italic;">The Washington Post</a>, with "no book, no life savings, no nothing."<i> </i><br />
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<i></i>Thirteen years after she launched her agency, Deering achieved the distinction of becoming the first U.S. literary agent to be convicted of mail fraud. She was sentenced to 46 months in prison, and she and her confederates were ordered to repay more than $2 million in restitution to the hundreds of authors they had bilked.<br />
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<div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">Criminal law professor and ex-FBI agent, James Fisher, recounted the tale of Deering's literary grifterism in <i><a href="http://www.amazon.com/Ten-Percent-Nothing-Literary-Agent/dp/0809325756/ref=sr_1_1?ie=UTF8&s=books&qid=1303505792&sr=8-1">Ten Percent of Nothing: The Case of the Literary Agent from Hell</a>. </i> The title refers to the ten percent royalties that the authors were promised on sales of theirs books. According to <a href="http://www.csmonitor.com/2004/0427/p16s01-bogn.html"><i>The Christian Scientist Monitor</i></a>, only about six of the 200 books that the Deering Agency contracted to publish ever made it into print. </div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">But Deering and her accomplices are by no means the only practitioners of this "genteel racket." Fisher estimated that, in1999, more than 10,000 gullible writers forked over more than $50 million to dishonest literary agents. The <i>Post</i> called it "one of the dark, ugly secrets of the American publishing industry."</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><u>The Top Six Literary Scams</u><br />
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</div><div>Many writers would give their eye teeth to be published, and there are plenty of scammers ready to take them. Here are six classic literary scams.</div><div><br />
<div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><b>Scam 1:</b> <b>The pay-to-publish companies that (a) charge vastly excessive fees to print your work, (b) produce a shoddy product or no product at all, and/or (c) make misleading claims about their capabilities to market your book, distribute it to bookstores, and have it reviewed</b>. Particularly in these days of do-it-yourself ebooks, the economics and advisability self-publishing are a complex subject. A very few authors make decent money by publishing their own books, but the vast majority never come close to earning back their investment. Most authors are probably well-advised to focus their efforts on honing their craft, finding an honorable agent, and moving heaven and earth to place their work with a conventional publisher that reliably pays royalties and (one hopes) an advance. If you can't find a conventional publisher and crave an audience for your work, the Internet can often provide a community of readers virtually for free. (But see <a href="http://www.rightsofwriters.com/2010/11/can-i-say-that-my-story-was-not.html">this earlier post on the implications of Internet publication.</a>) Suffice it to say that if you're planning to pay to have your work published, do a <u>lot</u> of comparison shopping and carefully investigate the track records of companies you are considering. And if you're paying to publish, you should retain all rights (except the strictly limited non-exclusive right to print copies pursuant to your specific authorization).</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><b>Scam 2: Agents Who Charge Up-Front Fees. </b>The fees are variously styled as "reading fees," "representation fees," "evaluation fees," "retainers," or "marketing fees." But whatever they are called, they are a bad deal for writers. Agents should make their money by selling your work, not by charging you to read your work. Indeed, the <a href="http://aaronline.org/canon">Code of Ethics</a> of the Association of Authors Representatives ("AAR") expressly states that "literary agents should not charge clients and potential clients for reading and evaluating literary works in the ordinary course of business." Here is a <a href="http://aaronline.org/MAgents">list of AAR member agents.</a> And here is an <a href="http://journal.neilgaiman.com/2005/01/everything-you-wanted-to-know-about.asp">older Neil Gaiman post on literary agents.</a></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><b>Scam 3. "Book Doctors" Who Are Quacks.</b> Using ghost writers, book doctors, and freelance editors is, of course, a longstanding tradition in publishing. (See this <a href="http://www.thedailybeast.com/blogs-and-stories/2011-04-17/lyn-vincent-is-sarah-palins-ghostwriter/#">quite wonderful profile of Sarah Palin's ghost.</a>) There is nothing wrong with it, provided your doctor is talented, reliable, reasonably priced, and willing to enter into a written agreement specifying exactly what she will do, when she will do it, how much she will be paid, how the relationship can be terminated if it doesn't work out, and that she has no rights whatsoever in the finished work. See this <a href="http://www.rightsofwriters.com/2011/01/good-fences-when-and-why-co-writers.html">earlier post on the importance of collaboration agreements</a>. Regrettably, many writers saddle themselves with expensive quacks who are unable to produce a work worthy of publication and, worse still, place a cloud over the ownership rights in the manuscript. </div><br />
The genius of the Deering Literary Agency was that it managed to combine the perverse elements of items 1 through 3 above.<br />
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</b></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><b>Scam 4. (Some But Not All) Pay-To-Play Writing Contests. </b>There are all too many writing contests where the sponsor is simply trying to make a profit on entry fees; there is no honor, no glory in winning (assuming that a winner is even selected). Here again the line is not entirely bright. Some quite respectable contests and awards do require modest entry fees. But you should be very leery of paying to enter a contest that you've never heard of. And be especially skeptical of contests that require you to assign to the contest operator any publishing rights in your work (much less exclusive publishing rights), particularly if your work is not even the winner. The Science Fiction & Fantasy Writers of America ("SFWA") offers some good guidelines for assessing contests <a href="http://www.sfwa.org/for-authors/writer-beware/contests/">here.</a> And here is a post from winningwriters.com on <a href="http://www.winningwriters.com/contests/avoid/av_signs.php">spotting a bad poetry contest.</a></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><b><br />
</b></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><a href="http://www.winningwriters.com/contests/avoid/av_signs.php"></a><b>Scam 5. Pay-To-Publish Anthologies. </b>These are similar to profit-making contests. You submit a poem or short story; you are notified that your work has been selected for inclusion; and you pressured to buy several copies of the (expensive) book in which your piece is presumably going to appear. The anthology, if it is published at all, crams in hundreds of poems or stories of no consistent distinction. Here's what the SFWA <a href="http://www.sfwa.org/for-authors/writer-beware/anthologies/">says about what are, in effect, vanity anthologies</a>.</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><b><br />
</b></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><b>Scam 6: The Classic Deadbeat.</b> But the ultimate scourge of freelancers is the person or company that hires you to write and never pays (or cynically bargains you down to a sum far lower than was originally promised). There is no way to completely protect yourself against the deadbeat other than demanding full payment up-front -- an arrangement to which few writing clients will ever agree. Beyond that, key defensive strategies are to get your financial agreement in writing, try to arrange for interim installment payments and kill fees, and provide in your agreement that rights in your work not transferred unless and until you are paid in full. The American Society of Journalists and Authors <a href="http://www.asja.org/pubtips/protect2.php">"Getting Paid" webpage</a> offers good advice on strategies for dealing with late payers and non-payers.</div></div><div><br />
</div><u>"Writer Beware"</u></div><div><br />
</div><div><u></u>The SFWA and Mystery Writers of America maintain the excellent <a href="http://www.sfwa.org/for-authors/writer-beware/" style="-webkit-text-decorations-in-effect: none; text-decoration: underline;">Writer Beware</a> webpages (some of which I've linked to above) that promise to "shine a light into the dark corners of the shadow-world of literary scams, schemes, and pitfalls." Writer Beware offers detailed discussions of unethical agency practices, fly-by-night publishers, contest scams, vanity press abuses, rip-off services for writers, and Twenty-First Century swindles such as overpriced ebook self-publishing and print-on-demand services. The site includes lists of "two thumbs down" agents and publishers. And there is a <a href="http://accrispin.blogspot.com/" style="-webkit-text-decorations-in-effect: none; text-decoration: underline;">Writers Beware Blog</a> that "provides up-to-the-minute information on specific scams and schemes." The information is accessible to all -- not just to SFWA members.<br />
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</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><u>"Contract Watch"</u></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">The American Society of Journalists and Authors offers an excellent <a href="http://www.asja.org/cw/cw.php">"Contract Watch" feature</a> on its website that focuses on scammy (or otherwise unfair) provisions in book, periodical, and online publishing agreements. </div><div><br />
</div><div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><u>"The Street Smart Writer"</u></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">Writer <a href="http://jennaglatzer.blogspot.com/">Jenna Glatzer</a> and Maryland-based lawyer <a href="http://www.danielsteven.com/about.htm">Daniel Steven</a> co-authored a feisty book entitled <i><a href="http://www.amazon.com/Street-Smart-Writer-Defense-Against/dp/0974934445/ref=sr_1_1?ie=UTF8&s=books&qid=1303496610&sr=1-1">The Street Smart Writer: Self Defense Against Sharks and Scams in the Writing World</a>. </i> Glatzer and Steven cover in detail many of the subjects briefly touched on in this post: pay-to-publish vanity press deals; deceptive writing contests; pay-to-read agents. They also have chapters on "After Publication Rip-Offs for Book Authors," "Special Screw-Overs for Screenwriters," "Dealing with Deadbeats," and "What To Do If You've Been Screwed." This is not a book for the likes of Jonathan Franzen and Jennifer Egan, who already have access to great agents and lawyers. But if you're a novelist or poet struggling to break into print or or scrappy non-fiction freelancer continually searching for paying markets for your work, this is a practical self-defense guide with a surprisingly upbeat tone. Well worth a couple of hours of your time.</div></div><div><br />
</div><div><u>Other Anti-Scam Resources on the Web</u></div><div><br />
</div><div>A few years back, Chicago-based thriller writer Joe Konrath wrote this <a href="http://jakonrath.blogspot.com/2005/10/writing-scams.html">blog entry on writing scams</a>; it remains one of the better short summaries of the subject, and it has attracted scads of interesting comments from readers. His basic message: "don't pay anyone any money for anything"; but, "if you do, do so knowing the risks involved." Literary agent Barbara Doyen has also posted <a href="http://www.barbaradoyen.com/category/scams-targeting-writers">a series of articles on scams targeting writers.</a></div><br />
Jim Fisher, who chronicled the exploits of the Deering Literary Agency in <i><a href="http://www.amazon.com/Ten-Percent-Nothing-Literary-Agent/dp/0809325756/ref=sr_1_1?ie=UTF8&s=books&qid=1303505792&sr=8-1">Ten Percent of Nothing</a> </i>maintains a website <a href="http://jimfisher.edinboro.edu/scams/intro.html">with a section on publishing scams.</a> His <a href="http://jimfisher.edinboro.edu/scams/intro.html">"20 Tips on How To Assess a Literary Agent"</a> contains especially pragmatic advice. Here, by the way, is a <a href="http://www.bookslut.com/features/2004_07_002785.php"><i>Bookslut</i> interview with Fisher.</a><br />
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The amusingly named <a href="http://pred-ed.com/">Preditors & Editors</a> site identifies publishers, contests, and agents that have been the subject of writers' complaints. Of course, writers who complain are not always in the right; there may be another side to some of the stories. But it is certainly worth checking online evaluation sites for comments when you are dealing with a new and unfamiliar outlet for your work.<br />
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</div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com5tag:blogger.com,1999:blog-3094213262059652791.post-57372788497071471152011-04-19T12:21:00.003-04:002011-04-19T12:25:53.440-04:00No Competing Works: The Third Nastiest Clause in Book Publishing Agreements<div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">Do you remember Harry Lorayne? If you ever met him, odds are he would remember <i>you</i>. Lorayne is a memory-training specialist and performer who authored <a href="http://www.amazon.com/How-Develop-Super-Power-Memory/dp/0811901815"><i>How To Develop a Super Power Memory</i></a>. He is also the poster child for the perils of the "no competing works" clause in publishing contracts.</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">In 1956, Lorayne signed a contract with publisher Frederick Fell for <i>Super Power Memory, </i>which contained a clause that prohibited Lorayne from "participating in the publication of any similar work which would tend to interfere with or injure sales of the book under contract." Eighteen years later, when <i>Super Power Memory</i> was still in print, Lorayne wrote another book on memory (together with, improbably enough, basketball star Jerry Lucas) entitled <a href="http://www.amazon.com/Memory-Book-Classic-Improving-School/dp/0345410025/ref=sr_1_1?ie=UTF8&qid=1302705783&sr=8-1" style="font-style: italic;">The Memory Book</a>, which was published with great success by Stein & Day. Fell sued -- archly accusing Lorayne of "an apparent moment of forgetfulness" in disregarding the "no competing works" clause. </div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">A preliminary decision in the Lorayne case is <a href="http://scholar.google.com/scholar_case?case=9983454958940186818&hl=en&as_sdt=2&as_vis=1&oi=scholarr#r[1]">reported here</a> (but it doesn't really tell you much about the contractual issues). I do not know how the Lorayne case was ultimately resolved; I do know that <i>The Memory Book </i>continued to be sold without interruption. But, to me, the fundamental question in the case has always been: what in the world would Harry Lorayne ever write about except memory training? If a court were to enforce a broad "no competing works" clause against him, it would essentially be saying that Lorayne could never write another book as long as <i>Super Power Memory </i>was available in any edition.</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><u>Specialists Beware</u></div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">Like Harry Lorayne, many academicians and textbook writers spend their entire professional lives researching and writing about the same general subject matter. Take, for example, a professor who authors a textbook on mycology or evolutionary psychology early in her career. Strictly construed, a "no competing works" clause might mandate that she forever remain a one-book author. Fortunately, as with <a href="http://en.wikipedia.org/wiki/Non-compete_clause">covenants not to compete</a>, the courts tend to construe such clauses narrowly, seeking to limit them in time, subject matter, or geographical scope so as not to interfere with an expert's ability to practice her profession and earn a living.</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">Consider the case of the late <a href="http://www.justinwilson.com/">Justin Wilson</a>, who was the author of <i>Louisiana Outdoor Cookin'. </i> When Wilson later tried to publish a book with another publisher entitled <a href="http://www.amazon.com/Justin-Wilsons-Homegrown-Louisiana-Cookin/dp/0026301253/ref=sr_1_1?ie=UTF8&s=books&qid=1303212204&sr=8-1"><i>Homegrown Louisiana Cookin'</i></a><i>,</i> his first publisher sued, arguing that the "no competing works" clause barred such a sequel. Surely, if you are a Cajun chef, living and working in Louisiana, it is unsurprising that you might aspire to write more than one book on Louisiana cookin'. And a Louisiana court, ruled that Wilson had the right to do so, despite the contractual prohibition. The judge's decision noted that "non-competition clauses are not favored in the law and are strictly construed against the person attempting to limit the competition." Because the clause was not limited to a specific time period or restricted area, the non-compete was held to be "too vague and broad to be enforceable."</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">The essential legal treatise <a href="http://books.google.com/books?id=6je0tPcGMzYC&pg=SA2-PA65&lpg=SA2-PA65&dq=richard+d.+irwin+antitrust+act+perle&source=bl&ots=cdtQ1rmYuS&sig=Ix8o6M1T1bAmAwBJwb0C5vSBHMY&hl=en&ei=KdqsTd6AMee70QGgtoi2Cw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBcQ6AEwAA#v=onepage&q&f=false">Perle & Williams on Publishing Law</a> mentions another case in California is which the author went on the warpath and sued his publisher, arguing that the "no competing works" clause was an unreasonable restraint on trade in violation of the antitrust laws. (Perle and Williams don't report the outcome; if you happen to know, please send me an email.)</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><u><br />
</u></div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><u>A Typical Clause</u></div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">To be fair, a publisher is entitled to be protected against the author simply repackaging his book and publishing it a second time with another publisher. But many "no competing works" clauses go farther than they need to, as in this fairly typical example</div></div><blockquote><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">During the term of this agreement the Author shall not, without prior written consent of the Publisher, participate in the publication of or be otherwise connnected with any work that might, in the Publisher's opinion, directly or indirectly interfere with or diminish the sale of the Work.</div></blockquote><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">This provision is particularly aggressive because (1) it restricts for an indefinite period of time any "participation" in a conflicting work, even as a co-author or contributor; (2) it introduces the vague notion of "indirect" interference with the sale of a work; (3) it is not limited in the types of competing works (e.g., book-length) that it prohibits; and (4) the test of whether book two "interferes" with the sales of book one is subjective, turning entirely on the "opinion" of the publisher.<br />
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In contracts with academic writers, it is fairly common for publishers to include an additional clause along these lines:<br />
<blockquote>The Author may, however, draw on and refer to material contained in the Work in preparing articles for publication in scholarly and professional journals and papers for delivery at professional meetings, provided that credit is given to the Work and the Publisher.</blockquote>Helpful, but it really doesn't give you any protection when it comes to your next full-length work.<br />
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<u>A Better Alternative</u></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
With works of non-fiction in particular, publishers will often refuse to eliminate the "no competing works" clause entirely. However, when possible, you should at least try to negotiate a more even-handed clause. <a href="http://www.amazon.com/Writers-Legal-Guide-Authors-Reference/dp/1581152302/ref=sr_1_1?ie=UTF8&qid=1303175189&sr=8-1"><i>The Writer's Legal Guide</i></a> recommends that the contract describe the type of successor work you are prohibited from writing</div><blockquote><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">as specifically as possible as to subject matter, market, and format. Do not give the publisher the discretion to decide whether a work will compete with the contracted book -- limit the restriction to works that will actually compete with the primary work.</div></blockquote>For example, if you are writing a textbook, you might try to limit the non-compete to another textbook on the identical subject directed to a similar academic level (e.g., high school biology students), clearly reserving the right to publish scholarly monographs or works for a general audience on the same subject. You could also seek to make clear that a competing "work" must be book-length, and that the clause therefore has no application to articles, etc. A somewhat better clause might look like this:<br />
<blockquote><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">For a period of four years, Author shall not publish any book-length work on the same subject as the Work, namely [inserting here a detailed description of the "subject"], directed to the same audience, that will diminish sales of the Work.</div></blockquote><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">And, if you have an idea for a subsequent work on a related subject, you can attempt to expressly carve out that work from the scope of the "no competing works" clause, e.g.:</div><blockquote><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">Publisher agrees that Author may continue to write and publish books and other works dealing with mycology and may expand chapters from the Work to new full-length works. For the avoidance of doubt, this clause is not intended to prohibit Author's publication of such works.</div></blockquote>Of course, whether you can obtain changes of this kind will depend upon your bargaining power. If you have an agent, she can be a godsend, advising you what's realistic and achievable under your particular circumstances. For many authors, the language of the "no competing works" clause may not be a deal breaker, but for some specialists it ought to be.<br />
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<u>The "No-Competing Works" Clause and Works of Fiction</u><br />
<div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">The "no competing works" clause is primarily a concern in contracts for works of non-fiction. Ordinarily two novels by the same author, published by two different publishers, will not interfere with each other's sales. Neverthless, in rare instances, publishers have taken the dubious position that the "no competing works" clause prohibits re-use of the characters from a novel in a sequel. The "no competing works" clause has little genuine commercial application to fiction, and it is not unreasonable to ask that it be stricken entirely from a contract for a novel or a book of short stories. At the very least, the publisher should be willing to clarify that the clause does not prohibit you from publishing sequels or re-purposing characters in other works.</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><u>What If Your Contract Does Not Contain a "No Competing Works" Clause?</u></div></div><div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">If you do not have a "no competing works" clause in your publishing contract, then you are ordinarily free to write a book on the same topic for another publisher. That's the lesson of <a href="http://scholar.google.com/scholar_case?case=3298339848861200557&hl=en&as_sdt=2&as_vis=1&oi=scholarr" style="font-style: italic;">Wolf v. Illustrated World Encyclopedia</a><i>. </i>But watch out for the "option clause," which may require you to offer your next book to your old publisher. And remember that, if you granted <i>exclusive</i> publishing rights to Publisher X, it became an owner of a "copyright interest" in the work. As a result, Publisher X could sue you and your new publisher for copyright infringement, if you cannibalize a meaningful amount of text from the book you published with Publisher X. Yes, you can be sued for infringing a copyright in a work that you yourself created; do-it-yourself infringement was alleged in the <a href="http://scholar.google.com/scholar_case?case=14390353534479925706&hl=en&as_sdt=2&as_vis=1&oi=scholarr">case involving John Fogerty</a> of Creedence Clearwater fame and (more or less) in the arbitration involving <a href="http://www.amazon.com/Hunt-Red-October-Tom-Clancy/dp/0425240339/ref=sr_1_2?ie=UTF8&qid=1303158162&sr=8-2" style="font-style: italic;">The Hunt for Red October</a>, described in <a href="http://www.rightsofwriters.com/2011/04/copyright-in-fictional-characters-can-i.html">this earlier post</a>.</div></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><u>Can Your Publisher Issue Another Work that Competes with Yours?</u></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><u></u>What about the flip side? Can a book publisher publish two or more books on the same subject by different authors? The answer is: ordinarily yes. For example, Harry Lorayne's publisher could probably publish two or even twenty books on memory without breaching its duties to Lorayne, unless, as described in <a href="http://scholar.google.com/scholar_case?case=1922171781229513612&q=van+valkenberg+v.+hayden&hl=en&as_sdt=2,33&as_vis=1"><i>Van Valkenburgh v. Hayden Publishing</i></a>, the publisher promised to use its best efforts to promote one author's book and allegedly did not act in good faith in publishing books by other authors on the same topic. Suffice it to say that publishers will seldom sign a "best efforts" clause.<br />
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</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><u>More Resources</u></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><u><br />
</u></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><a href="http://barryfox.us/2011/02/beware-the-%E2%80%9Ccompeting-works%E2%80%9D-clause-in-book-publishing-contracts-%E2%80%93-part-i/" style="text-decoration: underline;">Here is one health writer's screed</a> on the hazards of the "no competing works" clause. And here is <a href="http://books.google.com/books?id=hKguqdfT3eMC&pg=PA602&lpg=PA602&dq=no+competing+works+clause+publishing&source=bl&ots=A2Ubpd4fze&sig=uI1kzOyYZVQ329fKFZymfg2lhG4&hl=en&ei=QeasTaGuI8XW0QHwiYSrCw&sa=X&oi=book_result&ct=result&resnum=5&ved=0CDcQ6AEwBA#v=onepage&q&f=false">a discussion of The Authors Guild's views on the clause</a>. For a general discussion of <a href="http://www.rightsofwriters.com/2011/02/distinguishing-good-bad-and-ugly-in.html">the good, the bad, and the ugly in book publishing contracts, see this earlier post.</a></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">I suggested that the "no competing works" clause may be the third "nastiest" clauses in a book publishing agreement. What are number one and number two? Depending upon the phrasing, of course, they are often the option clause and the grant of rights clause. More about these extremely important terms in later posts.</div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com1tag:blogger.com,1999:blog-3094213262059652791.post-54475396328292312992011-04-08T21:19:00.002-04:002011-04-11T11:08:10.531-04:00Copyright in Fictional Characters: Can I Have Don Draper Make a Cameo Appearance in My Novel?I'm throwing a dinner party in my novel. My guest list includes Don Draper, James Bond, Jack Ryan, Scarlett O'Hara, Dolores Haze a/k/a Lolita, and Elizabeth Bennett. I don't expect my guests to say or do anything at my fictional party. The question is: Can they simply show up at the dinner table without my infringing the copyrights of Matthew Weiner, Ian Fleming, Tom Clancy, Margaret Mitchell, Vladimir Nabokov, and Jane Austen or their heirs?<br />
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Before trying to answer that (somewhat surprisingly complicated) question, let me introduce you to one of my guests. Jack Ryan is known to millions of readers as a tough former Second Lieutenant in the Marines, a onetime CIA agent, and ultimately President of the United States. He appeared as a character in Tom Clancy's first novel, <a href="http://www.amazon.com/Hunt-Red-October-Tom-Clancy/dp/0425240339/ref=sr_1_1?s=books&ie=UTF8&qid=1301694413&sr=1-1"><i>The Hunt for Red October</i></a>, which was published in hardcover in October 1984 by the U.S. Naval Institute Press, a small publisher that was then primarily issuing works on naval history. Ryan later reappeared in many other Clancy novels. But did you know that Jack Ryan was the subject of allegedly infringing use by none other than . . . Tom Clancy?<br />
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Clancy was a true unknown when he wrote <i>Hunt for Red October -- </i>an insurance agent who daydreamed of becoming a novelist. <i>The New York Times </i>tells the <a href="http://query.nytimes.com/gst/fullpage.html?res=940DE7DE103AF932A35756C0A96E948260&pagewanted=all">back story here.</a> Prior to <i>Red October</i>, Clancy had published no fiction, but he had published a non-fiction article on the MX missile in the Naval Institute's <i>Proceedings </i>magazine. So when he completed <i>Red October </i>he offered the novel to the Naval Institute; its headquarters were, after all, just a few miles away from his home near Annapolis. <br />
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The Naval Institute had published a few previous novels on naval themes and offered Clancy its standard contract, which included an assignment of the copyright to the publisher -- not uncommon for academic books at the time, but rare for novels. Clancy happily signed the agreement and received a $5,000 advance. <i>Red October</i> surprised both author and publisher when it turned out to be a colossal bestseller, selling many millions of copies (after Ronald Reagan praised it as "the perfect yarn"). <br />
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For his second book, Clancy jumped ship and signed with a big New York publisher. But the earlier copyright assignment to the Naval Institute almost torpedoed the new book. Why? Because the copyright assignment arguably carried with it the rights to the characters in <i>Red October</i>. The Naval Institute commenced an arbitration claiming that, as the <i>Times</i> explained, the Naval Institute's copyright ownership in <i>Red October</i> gave it "a continuing interest in the Jack Ryan character, and it should therefore receive a percentage of the profits from <i>Patriot Games</i> and <i>The Cardinal of the Kremlin</i> and from any films or miniseries made of them." <br />
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The <i>Red October</i> arbitration was settled on undisclosed terms. But the point is that fully drawn literary characters are generally subject to copyright protection, and the copyright owner will often be able to prevent others from using the character in other works without permission. But the legal principles are by no means simple.<br />
<br />
There are two separate but related questions here. First: Is a particular character protected by copyright? Second: Is the particular use made by someone other than the copyright owner infringing?<br />
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Here is what famed judge Learned Hand said 80 years ago in <a href="http://scholar.google.com/scholar_case?case=14991934121439658064&hl=en&as_sdt=2&as_vis=1&oi=scholarr">Nichols v. Universal Pictures Corp.</a> about distinguishing between literary characters that are and are not protected by copyright:<br />
<blockquote>If Twelfth Night were copyrighted, it is quite possible that a second comer might so closely imitate Sir Toby Belch or Malvolio as to infringe, but it would not be enough that for one of his characters he cast a riotous knight who kept wassail to the discomfort of the household, or a vain and foppish steward who became amorous of his mistress. These would be no more than Shakespeare’s ‘ideas’ in the play, as little capable of monopoly as Einstein’s Doctrine of Relativity, or Darwin’s theory of the Origin of Species. It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.</blockquote>Judge Hand's analysis still holds true today. As copyright guru <a href="http://www.paulgoldstein.net/">Paul Goldstein</a> puts it:<br />
<blockquote>Fully realized characters in literature are little different from fully defined personalities in daily life, and it is no surprise that the test of protectibility that courts apply to literary characters is closely akin to the criterion that individuals apply in daily life to determine whether they in truth know someone. A literary character can be said to have a distinctive personality, and thus to be protectible, when it has been delineated to the point at which its behavior is relatively predictable so that, when placed in a new plot situation, it will react in ways that are at once distinctive and unsurprising.</blockquote>Every reader of <a href="http://www.amazon.com/Catcher-Rye-J-D-Salinger/dp/0316769177/ref=sr_1_1?s=books&ie=UTF8&qid=1302285766&sr=1-1"><i>Catcher in the Rye</i></a> comes away with the feeling that she knows <a href="http://en.wikipedia.org/wiki/Holden_Caulfield">Holden Caulfield</a>, and so it was unsurprising to many copyright lawyers when, a little over a year ago, a court enjoined publication an unauthorized sequel by Fredrick Colting that told the story of a 76-year-old Holden Caulfield. <a href="http://scholar.google.com/scholar_case?case=14430115072998341439&hl=en&as_sdt=2&as_vis=1&oi=scholarr">Here is the appeals court decision in that procedurally complicated case</a>, which ended in a <a href="http://www.mediabistro.com/galleycat/j-d-salinger-estate-settles-suit-with-fredrik-colting_b21063">settlement</a> prohibiting further publication in the United States and Canada. Holden Caulfield is, in Goldstein's phrase, "fully delineated," and like other fully delineated characters (e.g., James Bond, as the <a href="http://www.coolcopyright.com/cases/fulltext/mgmamericantext.htm">court ruled in this lawsuit</a>) he is surely protected by copyright, while, by contrast, sketchily defined, stock characters may not be (as <a href="http://scholar.google.com/scholar_case?case=9192088008775002805&hl=en&as_sdt=2&as_vis=1&oi=scholarr">the court found in this case</a>). (See also this account of a <a href="http://www.nytimes.com/1998/10/10/books/nabokov-son-files-suit-to-block-a-retold-lolita.html">1998 lawsuit</a> to block publication of <a href="http://www.amazon.com/Los-Diary-Pia-Pera/dp/B001G8WAYY/ref=sr_1_1?s=books&ie=UTF8&qid=1302309380&sr=1-1">Lo's Diary</a> "a distaff version of Nabokov's <i>Lolita</i>.")<br />
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But the fact that a character is copyright protected does not necessarily mean that every use of his/her fictional persona is an infringement. A second work that invokes a copyright-protected character must copy some significant amount of expression in order to be an infringement. The mere mention of the name of a copyrighted character ought not to be a copyright infringement because <a href="http://www.loc.gov/cgi-bin/formprocessor/copyright/cfr.pl?&urlmiddle=1.0.2.6.2.0.173.1&part=202&section=1&prev=&next=2">names, standing alone, are not copyrightable.</a> (But see the discussion of trademark and unfair competition law below.) A copyright infringement occurs only when a quantum of <i>protectible</i> expression has been copied, and the copying is not excused by the <a href="http://www.law.cornell.edu/uscode/17/107.html">doctrine of fair use.</a> (Note that this post deals primarily with <i>openly acknowledged</i> use of another writer's character, not the situation where an author merely borrows certain traits or characteristics from a character.)<br />
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With this principle in mind, it would seem to follow that a fleeting appearance of another writer's fictional character as a dinner guest in my novel should not qualify as a copyright infringement. However, as soon as I start to make Jack Ryan or Don Draper talk like, act like, or look like Jack Ryan or Don Draper in my novel I may be treading on thinner ice. And if I make Jack Ryan or Don Draper an important character in my book, I'm begging for trouble.<br />
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There are several other important considerations here. First, there are some copyright owners who, regardless of viability of their claims, will not hesitate to sue me at the drop of a hat if I use their characters in any way without obtaining permission (which they will never give me). There is, in other words, a practical risk in inviting other writers' characters to my fictional dinner party, even if those characters keep their mouths shut and do nothing. Frankly, it may not be worth it to me to take any risk of provoking a lawsuit arising from my imaginary soiree, even if I have the better part of the argument on copyright. It's always safer to invite some nameless characters of my own creation.<br />
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(And Elizabeth Bennett can still attend the dinner, since she has been in the public domain for a long, long time. Seth Grahame Smith, author of <i><a href="http://www.amazon.com/Pride-Prejudice-Zombies-Classic-Ultraviolent/dp/1594743347">Pride and Prejudice and Zombies</a>,</i> is surely thankful for that.) <br />
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Second, the owner of the rights in a famous fictional character will also likely seek to invoke other legal theories -- particularly trademark and unfair competition laws -- when trying to protect her characters from my unauthorized use. If the name of a character has acquired <a href="http://www.nolo.com/dictionary/secondary-meaning-term.html">secondary meaning</a> -- i.e., if the name is sufficiently well known that readers associate it exclusively with a particular author's work -- then the owner may be able to claim that my unauthorized use of the name creates confusion among readers, who may mistakenly conclude that my use of the name is authorized, approved, or licensed by the owner. Confusion as to source, authorization, or endorsement is the essence of an unfair competition claim. There might be ways to get around the trademark infringement/unfair competition argument, particularly with the use of prominent disclaimers that make very clear that Matthew Weiner has not authorized me to mention Don Draper. But, still, the unfair competition argument is a complicating factor when referencing the characters of others.<br />
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Concern about characters as trademarks may -- or may not -- have figured into some of the choices made in <a href="http://en.wikipedia.org/wiki/The_Wind_Done_Gone"><i>The Wind Done Gone</i></a>, by Alice Randall. Randall's novel was, of course, a reinterpretation of the characters and events in <a href="http://www.amazon.com/Gone-Wind-Margaret-Mitchell/dp/1416548890/ref=sr_1_1?ie=UTF8&qid=1302287537&sr=8-1" style="font-style: italic;">Gone with the Wind</a>. Scarlet O'Hara appears in the novel, but she is referred to only as "Other." And Rhett Butler is called "R." Place names, such as Tara, were also altered. That said, Scarlett and Rhett are "fully delineated" characters whose fictional lives are continually referenced (albeit not by their full names) in Randall's novel. Small wonder then that the owner of the copyright in <i>GWTW</i> sued Randall's publisher, Houghton Mifflin. As you can see from <a href="http://www.houghtonmifflinbooks.com/features/randall_url/pdf/Summons_and_Complaint.pdf">the complaint</a>, the plaintiff alleged both copyright infringement and unfair competition, claiming, among other things, that the characters were both copyright-protected and had acquired secondary meaning. It was a hard-fought case, with an inconclusive ending. The trial court found that <i>The Wind Done Gone</i> was likely a violation of copyright and issued a preliminary injunction. But the appeals court, in <a href="http://www.houghtonmifflinbooks.com/features/randall_url/pdf/Summons_and_Complaint.pdf">this decision</a>, found on First Amendment grounds that it was improper to preliminarily enjoin publication of <i>TWDG</i> in part because Randall's work could qualify as a "parody" of GWTW. But the appeals court did not rule out the possibility that the publisher of <i>TWDG </i>could ultimately be liable to the copyright owner for money damages. The case settled before there was any final decision on a host of interesting legal issues. <br />
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These days, the unauthorized use of characters occurs all of the time in the context of <a href="http://en.wikipedia.org/wiki/Fan_fiction">fan fiction</a>, which typically involves inventing new stories using familiar characters from literature, comic books, movies, or television programs. An entire subculture has built up around fan fiction, and recently <a href="http://www.fanfiction.net/">FanFiction.Net</a> was the 747th most trafficked website in the United States. Although each work must be judged on its own, suffice it to say that, if the issue ever reached a court, many works of fan fiction would be deemed <a href="http://en.wikipedia.org/wiki/Derivative_work">derivative works</a> that infringe upon the characters and stories on which they are based. Chilling Effects has a great Q&A on <a href="http://www.chillingeffects.org/fanfic/faq.cgi#QID73">the legal issues relating to fan fiction.</a> And the <a href="http://en.wikipedia.org/wiki/Legal_issues_with_fan_fiction#Arguments_for_the_legality_of_fan_fiction">Wikipeida entry on the legality of fan fiction</a> also makes for interesting reading. Georgetown Law School professor Rebecca Tushnet wrote an <a href="http://www.tushnet.com/law/fanficarticle.html">excellent law review article on the subject</a>. And here is a <a href="http://fanlore.org/wiki/Legal_Analysis">list of other law review pieces</a> discussing the legal issues. <br />
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Fan fiction writers have two things going for them. First, as discussed in some of the references above, many (but by no means all) copyright owners have turned a blind eye to infringing fan fiction, on the theory that they do not want to alienate some of their most enthusiastic followers. Second, fan fiction writers rarely seek to profit from their work, which is helpful in arguing the <a href="http://www.copyright.gov/fls/fl102.html">defense of fair use</a>, but by no means provides immunity from an infringement claim. In short, writers of fan fiction, who publish their work on the web or elsewhere, should be aware that they are taking some degree of legal risk, unless, like <i>Pride and Prejudice and Vampires,</i> their works are based upon public domain sources.<br />
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So can I have Don Draper make a cameo appearance in my novel? As you can see, the answer is a thoroughly equivocal "it depends." A writer contemplating using the characters of another writer would well-advised to seek out the counsel of an experienced intellectual property lawyer. (See <a href="http://www.rightsofwriters.com/2010/12/44-places-where-writers-and-other.html">this prior post</a> on free and low-cost resources.) If you're publishing with an established house, you should discuss your particular use of other writers' characters with your editor and the in-house attorney.<br />
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There are several helpful discussions on the web concerning copyright in fictional characters, including <a href="http://www.publaw.com/article/protection-of-fictional-characters/">this one by Denver lawyer Lloyd Rich</a>, <a href="http://www.ivanhoffman.com/characters.html">this one by California lawyer Ivan Hoffman</a>, and this by <a href="http://law.bepress.com/cgi/viewcontent.cgi?article=4153&context=expresso">Phoenix lawyer Jasmina Zecevic Richter</a>.Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com26tag:blogger.com,1999:blog-3094213262059652791.post-71300406605066550662011-03-26T18:40:00.007-04:002011-03-29T18:22:43.816-04:00Does the DNA in a Bacterium Infringe the Copyright in James Joyce's "Portrait of the Artist as a Young Man"?That wonderfully oddball question was posed to me yesterday by author Mike Mullin. (<a href="http://twitter.com/#!/Mike_Mullin">See his entertaining tweets here</a>.)<br />
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I admit that initially I didn't have the foggiest idea what Mike was talking about. But when I read the link in his tweet it all became clear.<br />
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It seems that, in May 2010, the American biologist <a href="http://en.wikipedia.org/wiki/Craig_Venter">Craig Venter</a> synthesized the genome of a microbe and implanted a snippet of its DNA into a DNA-free cell of another species. As Carl Zimmer exclaimed in awe <a href="http://blogs.discovermagazine.com/loom/2010/05/20/synthetic-genome-natural-cell-new-life/">in a blog post</a> on <i>Discover</i> magazine's website:<br />
<blockquote>And that…that thing…can grow and divide. It’s hard to say whether this is “life from scratch,” because the boundary between such a thing and ordinary life (and non-life) is actually blurry . . . </blockquote><a href="http://www.guardian.co.uk/science/2010/may/20/craig-venter-synthetic-life-genome">Here, from The Guardian,</a> is a more detailed discussion of the extraordinary and controversial science -- arguably the first synthetic life form. And <a href="http://www.ted.com/talks/lang/eng/craig_venter_unveils_synthetic_life.html">here is Venter himself talking about the breakthrough</a>. But for our purposes, the funky thing is that, as <a href="http://blogs.discovermagazine.com/loom/2010/05/21/james-joyces-words-come-to-life-and-are-promptly-desecrated/">Zimmer reported in a later post</a>, Ventner's synthetic cell:<br />
<blockquote>carries a line from James Joyce, inscribed in its DNA: “<b>To live, to err, to fall, to triumph, to recreate life out of life</b>.” . . . The scientists who produced the new synthetic cell copied the genome of a microbe, letter for letter, and then inserted the synthetic version into a host cell. To determine that their experiment worked, they needed a way to tell the genomes of their synthetic cells from the natural genomes that were their model. So they inserted “watermarks” into the artificial genome. These sequences of DNA (which spelled out the work of Joyce and others through the genetic code) sit in non-coding regions of the microbe’s DNA.</blockquote>(Emphasis added.) What happened next, sounds like a satire of the James Joyce Estate's legendarily overzealous copyright policing. As David Ewalt <a href="http://blogs.forbes.com/davidewalt/2011/03/14/craig-venters-genetic-typo/">reported in his blog on Forbes.com</a>, at a conference in Texas just last week:<br />
<blockquote>Venter explained his team received a cease and desist letter from Joyce’s estate, saying that he’d used the Irish writer’s work without permission. ”We thought it fell under fair use,” said Venter.</blockquote>In other words, the Joyce Estate evidently contended that a sequence of DNA in a bacterium infringed the copyright in <i>Portrait of the Artist</i>. In his tweet, Mike Mullin asked -- doubtless tongue in cheek -- for an opinion on the viability of the Estate's copyright claim. Here, Mike, is how the analysis might go, if one were to take this claim at all seriously:<br />
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The first question is whether <i>Portrait of the Artist </i>is copyright-protected at all. Joyce's novel was first published in 1916. It is therefore in the public domain <b>in the United States</b>, as are all works first published in 1922 or before. (<a href="http://www.rightsofwriters.com/2010/11/is-it-still-in-copyright.html">See this earlier post on copyright duration.</a>) Thus, as long as the literary bacterium was bioengineered in America and not distributed abroad, it would not be an infringing microbe. Indeed, you can <a href="http://www.gutenberg.org/ebooks/4217">read the entirety of the book on the Project Gutenberg site.</a> (It is, to say the least, quite wonderful.) But keep in mind that the United Kingdom and the European Union calculate the duration of copyright in older works differently. Copyright there (at least for works first published during an author's lifetime) endures for seventy years after the death of the author. Since Joyce died in 1941, <i>Portrait of the Artist </i>is copyright-protected in those jurisdictions until January 1, 2012. So if the creation and replication of the microbe took place in the UK in 2010, the Estate at least has a copyrighted work on which to base its claim.<br />
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By the way, <a href="http://english.osu.edu/research/organizations/ijjf/copyrightfaqs.cfm">this webpage</a> maintained by Ohio State University and The International James Joyce Foundation tells you everything you could possibly want to know about the duration of Joyce's copyrights in various countries throughout the world. Among the contributors to page are Robert Spoo and Carol Loeb Shloss. I will come back to Spoo and Shloss in a minute.<br />
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I do not know where Venter's bacterium was created, but he is an American and his Institute is based in Maryland and California. So odds are the copying occurred in a jurisdiction where <i>Portrait of the Artist</i> is in the public domain. Don't sweat this, Dr. Venter.<br />
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But what if the new life form had been born in London? There would still be a long line of hoops that the Estate would have to jump through to prove copyright infringement. We will take it as a given that the microbe does in some sense "copy" a small portion of Joyce's novel, even though the copying cannot be seen by looking at the microbe under a microscope, but only in the print-out produced by the laboratory equipment that analyzes its genetic sequencing. I am no authority on "fair dealing" -- the British equivalent of "fair use" (I leave any UK analysis to <a href="http://twitter.com/#!/copyrightgirl">Emily Goodhand @CopyrightGirl</a>) -- but under U.S. law, any claim of copyright infringement would, of course, be patently ridiculous. The 14-word phrase from Joyce is so short that it would likely qualify as <i>de mimimis </i>copying -- i.e., too insignificant even to bother with applying the fair use analysis. If the <a href="http://www.copyright.gov/title17/92chap1.html#107">fair use factors under Section 107 of the Copyright Act</a> were examined, Venter should surely win on at least three of the four. In particular, a court would almost certainly find that Venter's use of Joyce's words was highly "transformative," which strongly favors a finding of fair use. The "amount and substantiality of the portion used [by Venter] in relation to the copyrighted work" is trivial, to say the least. The effect of Venter's use on the market for <i>Portrait of the Artist</i> is non-existent. Point, game, match -- Venter.<br />
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By the way, from what I read, as the bacteria replicate, the Joyce "quote" is gradually becoming more and more garbled, as mutation alters the gene sequencing.<br />
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But there is a serious point lurking here. This is by no means the first time that the Joyce Estate has aggressively rattled its copyright sabres. See this long and <a href="http://www.newyorker.com/archive/2006/06/19/060619fa_fact"><i> </i>fascinating<i> New Yorker</i> article</a>. And see <a href="http://www.ncte.org/cccc/committees/ip/2006developments/joyceestate"> this summary by Kim Dian Gainer</a>, which describes the "forced the excision of material from Brenda Maddox’s biography of Nora Joyce," the blocking of a "performance based upon a short story by Joyce that, ironically, was itself based upon a folk tale," the blocking of "live readings of Ulysses on the internet," and, in 2004, the threat of legal action to "derail[] exhibits and readings intended to be a part of the ReJoyce Dublin 2004 festival."<br />
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Most famously, the Estate objected to Carol Shloss's plans to quote from certain letters and other materials in her <span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;"><a href="http://www.amazon.com/Lucia-Joyce-Carol-Loeb-Shloss/dp/0312422695/ref=sr_1_1?ie=UTF8&s=books&qid=1290968958&sr=1-1" style="color: #993200; text-decoration: none;">biography of Joyce's daughter, Lucia</a></span><span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;">. In response, Shloss filed a landmark declaratory judgment and "copyright misuse" lawsuit, in which she argued, among other things, that the Estate misused its copyrights in an effort to influence scholarly treatment of Joyce's works and life.</span><span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;"> Robert Spoo was one of the attorneys who represented her. (I told you I would return to Shloss and Spoo.) Ultimately, Shloss obtained a highly favorable settlement, and the <a href="http://cyberlaw.stanford.edu/case/shloss-v-estate-of-joyce">Estate ended up paying $240,000 in attorneys' fees</a> to Shloss and her counsel.</span><br />
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Based upon the letter accusing Venter of creating an infringing bacterium, the Estate does not appear to have been chastened by the outcome of the Shloss case.<br />
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<b>Postscript</b>: Following up on the Joyce/Venter controversy, <i>New Yorker </i>blogger Jeannie Venasco located several other accounts of literary quotations that have been encoded into DNA (evidently without attracting cease and desist letters). She summarizes her research in <a href="http://www.newyorker.com/online/blogs/books/2011/03/dna-literature-joyce-venter.html">this amusing post.</a>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com3tag:blogger.com,1999:blog-3094213262059652791.post-42715406973288378112011-03-13T13:53:00.001-04:002011-03-16T16:49:46.589-04:00Oops, I Poisoned My Readers: Can I Be Liable for Publishing Mistaken Information?Suppose you are the author of a book about harvesting edible mushrooms. Suppose further that mushroom enthusiasts who purchased your book became seriously ill when they gathered and ate fungi that you mistakenly described as safe. Could you be sued by your poisoned readers? Would they be able to recover damages from you and your publisher for their culinary nightmare?<br />
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The answer to the first question is, of course, yes: Generally speaking, anyone can be sued for anything in this great country of ours, no matter how lacking-in-merit the case might be. (Of course, if the case is truly frivolous, the courts may, in some instances, have the power to impose sanctions on the plaintiff or his attorney.)<br />
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The answer to the second question is not entirely clear, although the law is better for publishers (and perhaps also for authors) than one might guess.<br />
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There was, in fact, a case involving an encyclopedia of mushrooms. Some readers, relying on misinformation in the book, did collect and eat poisonous mushrooms, becoming so ill that they required liver transplants. Ultimately, in <a href="http://ftp.resource.org/courts.gov/c/F2/938/938.F2d.1033.89-16308.html">this important decision</a>, the Ninth Circuit found that the publisher had no liability to its readers for the nearly-deadly information. Essentially, the court concluded that imposing liability on the publisher would open the door to the prospect of unlimited liability that could severely threaten the free flow of information. Here is how the court explained its reasoning:<br />
<blockquote>Although there is always some appeal to the involuntary spreading of costs of injuries in any area, the costs in any comprehensive cost/benefit analysis would be quite different were strict liability concepts applied to words and ideas. We place a high priority on the unfettered exchange of ideas. We accept the risk that words and ideas have wings we cannot clip and which carry them we know not where. The threat of liability without fault (financial responsibility for our words and ideas in the absence of fault or a special undertaking or responsibility) could seriously inhibit those who wish to share thoughts and theories. As a New York court commented, with the specter of strict liability, "[w]ould any author wish to be exposed ... for writing on a topic which might result in physical injury? e.g. How to cut trees; How to keep bees?" . . . One might add: "Would anyone undertake to guide by ideas expressed in words either a discrete group, a nation, or humanity in general?"</blockquote>Similarly, the courts have found that a publisher was not liable for an injury to a student who was injured while performing a science experiment, following allegedly mistaken directions in a textbook. <a href="http://scholar.google.com/scholar_case?case=3469314648426327651&hl=en&as_sdt=2&as_vis=1&oi=scholarr">Decision here.</a> Dow Jones had no liability to readers for publishing mistaken financial information. <a href="http://www.tomwbell.com/NetLaw/Ch04/Daniel.html">Decision here.</a> A victim of sexual abuse could not recover from a publisher that allegedly misrepresented the qualifications of an attorney that she hired. <a href="http://scholar.google.com/scholar_case?case=13762806077532938062&hl=en&as_sdt=2&as_vis=1&oi=scholarr">Decision here.</a> Planned Parenthood was not liable for the "wrongful conception" of a child based upon allegedly mistaken information in a contraception pamphlet. <a href="http://scholar.google.com/scholar_case?case=9763891147732569010&hl=en&as_sdt=2,33&as_vis=1">Decision here. </a> See also <a href="http://scholar.google.com/scholar_case?case=1862460561348509554&hl=en&as_sdt=2,33&as_vis=1">this case</a> in which a publisher was found not to be responsible for the death of a reader arising out of the publication of allegedly hazardous information in a diet book. And then there is this famous (to media lawyers) and bizarre case in which <i>Hustler</i> was found not to be responsible for the death of a teenager who allegedly imitated an autoerotic practice described in an article in the magazine. <a href="http://openjurist.org/814/f2d/1017/herceg-v-hustler-magazine-inc">Decision here.</a><br />
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</div><div>Many caveats are in order. </div><div><br />
</div><div>First, in a number of cases of this kind, the defendant was a publisher and not an individual author. Sometimes the publisher successfully invoked the argument that it could not be expected to fact check every instruction in every book it published. That same argument would not ordinarily be available to the author of an accused book. Accordingly, the author might face a greater legal risk than her publisher. See, for example, <a href="http://scholar.google.com/scholar_case?case=10625981262681808399&hl=en&as_sdt=2&as_vis=1&oi=scholarr">this case</a> for personal injuries arising out of allegedly mistaken information concerning the making of tools, in which the claims against the publisher were dismissed, but the claims against the author went forward. See also <a href="http://scholar.google.com/scholar_case?case=12134749983314046468&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><i>Jones v. J.B. Lippincott</i></a>, in which the court distinguished between the responsibility of the author and publisher of a textbook, which contained allegedly mistaken information that caused injury to a nursing student. The <i>Lippincott</i> court said: </div><blockquote>Author liability for errors in the content of books, designs, or drawings is not firmly defined and will depend on the nature of the publication, on the intended audience, on causation in fact, and on the foreseeability of damage.</blockquote>Note, however, that the mushroom encyclopedia case, above, quotes with seeming approval language from an earlier case about protecting <i>authors</i> from unlimited liability, even though only the publisher seems to have been a defendant when the Ninth Circuit issued its decision. Moreover, in some of the financial information cases, the publisher also appears to have been the author of the "defective" information.<br />
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<div>Second, some of the cases suggest that liability could be imposed if the publisher or author knew that the mistaken information was false, but went ahead and published it anyway.</div><div><br />
</div><div>Third, the courts have said that a different rule might apply in a circumstance where there was a special relationship between the writer or publisher and the reader that gives rise to a duty to speak with care. An example might be where you specifically contract to prepare a research report for a specific individual or company and it turns out that mistaken information in the report causes injury.</div><div><br />
</div><div>Fourth, and most fundamentally, no responsible author wants to cause injury to a reader, and there is no discounting the fact that publishing seriously mistaken information has a host of other detrimental consequences, ranging from damage to an author's reputation, to the cost of defending a lawsuit, even if the lawsuit is ultimately dismissed.</div><div><br />
</div><div>There is, in short, every reason for a writer to do his utmost to get his facts straight, to communicate instructions clearly, and to give ample warnings of the risks involved in a described procedure. That said, if the worst does happen, the law gives publishers -- and perhaps also writers -- some meaningful protections against open-ended liability to readers.</div><div><br />
</div><div><b>Postscript:</b> Here are discussions of two recent cases in which readers have sought to impose liability on publishers and/or authors for perceived wrongs other than personal injury: the putative <a href="http://artsbeat.blogs.nytimes.com/2011/02/02/class-action-suit-filed-against-jimmy-carter-book/">class action suit alleging that Jimmy Carter's book</a> was falsely marketed as an accurate account of peace negotiations in the Middle East; and the <span class="Apple-style-span" style="color: #333333; font-family: georgia, 'times new roman', times, serif; line-height: 21px;"><a href="http://today.msnbc.msn.com/id/14715706/ns/today-books/">case against James Fry and his publisher</a></span><span class="Apple-style-span" style="color: #333333; font-family: georgia, 'times new roman', times, serif; line-height: 21px;"> </span>for allegedly misrepresenting a work of fiction as a memoir.<br />
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</div><div><div></div></div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com5tag:blogger.com,1999:blog-3094213262059652791.post-46569835588896678312011-03-05T11:51:00.020-05:002011-03-05T15:45:32.660-05:00The Dead as Characters in Fiction: Shoeless Joe, J.D. Salinger, and J.R.R. TolkienOn January 25 of this year, lawyers for the Estate of J.R.R. Tolkien sent a cease and desist letter to author Steve Hillard claiming that his novel <a href="http://www.amazon.com/Mirkwood-Novel-About-JRR-Tolkien/dp/0615312543/ref=sr_1_1?s=books&ie=UTF8&qid=1298763079&sr=1-1"><i>Mirkwood</i></a> violates the Estate's right of publicity in Tolkien's persona because (among other reasons) Hillard depicts Tolkien as a character in his book. The Estate cited Texas and Kentucky as examples of jurisdictions with statutes that extend the right of publicity to the dead. Hillard responded by filing a preemptive lawsuit in federal court in Austin, Texas, seeking a declaration that his novel does not violate the Estate's rights. Hillard's filing cites several good examples of recent novels by well-regarded writers that made prominent use of dead celebrities as characters, including <a href="http://www.amazon.com/Blonde-Novel-Joyce-Carol-Oates/dp/006093493X/ref=sr_1_1?s=books&ie=UTF8&qid=1298764114&sr=1-1"><i>Blonde</i></a> by Joyce Carol Oates, featuring Marilyn Monroe as a character, <a href="http://www.amazon.com/Hours-Novel-Michael-Cunningham/dp/0312243022/ref=sr_1_1?s=books&ie=UTF8&qid=1298764165&sr=1-1"><i>The Hours</i></a> by Michael Cunningham, featuring Virginia Woolf, and <a href="http://www.amazon.com/Underworld-Don-Delillo-DeLillo/dp/0330524976/ref=sr_1_1?s=books&ie=UTF8&qid=1298764205&sr=1-1"><i>Underworld</i></a> by Don DeLillo, featuring Frank Sinatra, Jackie Gleason, and J. Edgar Hoover, among others. Early articles concerning the <i>Mirkwood </i>dispute appear <a href="http://www.guardian.co.uk/books/2011/feb/26/mirkwood-jrr-tolkien-legal-battle">here</a>, <a href="http://www.hollywoodreporter.com/blogs/thr-esq/jrr-tolkien-estate-threatens-lawsuit-101528">here</a>, and <a href="http://www.dailymail.co.uk/news/article-1361076/JRR-Tolkien-estate-sues-Texan-author-using-professor-character-fictional-novel.html">here</a>.<br />
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I gather that the Estate may have other gripes about the allegedly "Tolkien-like" cover and the appearance of Tolkien's name in the subhead "A Novel About JRR Tolkien." But it's not my purpose here to express a view on the merits of this particular lawsuit. Instead, I'd like to voice my disaffection for the entire concept of a post-mortem right of publicity.<br />
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Briefly stated, the right of publicity prohibits the use of an individual's name or likeness (and, in some places, other elements of one's persona, such as one's voice, signature, etc.) in advertising or for "purposes of trade." (<a href="http://rightofpublicity.com/">RightofPublicity.com</a> offers a good background discussion on the right; this good <a href="http://www.kenyon.com/newspublications/publications/2010/~/media/Files/Publication%20PDFs/2010/Publicity%20%20US%202011.ashx">online whitepaper</a> from the Kenyon & Kenyon law firm discusses the right in certain non-U.S. jurisdictions.)<br />
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There has been a lot of debate over the years about what falls within the ambit of "purposes of trade." And there have been a fair number of lawsuits contending that "purposes of trade" include depicting an individual, without his consent (or the consent of his heirs), in a work of fiction, such as a <a href="http://scholar.google.com/scholar_case?case=1997318397198235568&hl=en&as_sdt=2&as_vis=1&oi=scholarr">novel</a> or <a href="http://scocal.stanford.edu/opinion/guglielmi-v-spelling-goldberg-productions-28104">movie</a>. After all (the plaintiffs argue), the writer or producer is expecting to make money from the fictional work. On the other hand, thankfully, many right of publicity statutes and court decisions explicitly recognize that there is a strong countervailing First Amendment interest in not curtailing all use of individuals' names in expressive works.<br />
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There has been a spate of recent right of publicity cases involving the use of real people in fictional works. (See this <a href="http://www.abajournal.com/magazine/article/whats_in_a_name/">article from the American Bar Association</a> summarizing recent developments.) When brought on behalf of living individuals, most cases, like <a href="http://www.hollywoodreporter.com/blogs/thr-esq/cbs-wins-odd-csi-defamation-163846">this one involving the television series <i>CSI</i></a> recently dismissed by an appeals court in California, tend to be yoked with a claim for libel, on the theory that not only does the plaintiff have a property right in his persona, but he has been falsely and disparagingly portrayed in the fictional work. (This raises the separate but related question of <a href="http://www.rightsofwriters.com/2010/12/could-i-be-liable-for-libel-in-fiction.html">libel in fiction, which is the subject of this earlier post</a>.) However, when libel is <i>not</i> a factor, i.e., when the only claim is one based upon the right of publicity, in most cases -- but unfortunately not all -- the fiction writers have prevailed. Still, there is no denying that this can be an unpredictable area of the law, as illustrated by the <a href="http://www.tuethkeeney.com/ELA/Doe.pdf">Tony Twist case.</a><br />
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But what about a right of publicity for the dead? Remember, you <a href="http://www.rightsofwriters.com/2011/01/can-you-be-sued-for-libeling-dead-john.html">can't libel the dead in the United States.</a> I, for one, see no compelling social benefit in bestowing a new property right on the heirs of dead celebrities, particularly when it is has too often been mischievously used by the living in an effort to suppress creative works, which are (and should be) entitled to robust protection under the First Amendment. And yet approximately 19 states now recognize a post-mortem right of publicity. (The laws, I might add, are entirely inconsistent with each other; some according protection for as few as 10 years after death, while Indiana and Oklahoma purport to extend protection for the astonishing term of <i>100 years!</i>)<br />
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Back in the 1980s, I read the great baseball novel <a href="http://www.amazon.com/Shoeless-Joe-W-P-Kinsella/dp/0395957737/ref=sr_1_1?s=books&ie=UTF8&qid=1298413159&sr=1-1"><i>Shoeless Joe</i></a> by <a href="http://en.wikipedia.org/wiki/W._P._Kinsella">W.P. Kinsella</a>. The title character is the ghost of Shoeless Joe Jackson, who was, of course, one of the greatest hitters of all time and the most famous member of the Chicago White Sox team (or the Black Sox, as they have come to be called) that fixed the 1919 World Series. The book also features a central character by the name of J.D. Salinger.<br />
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</div><div>If you haven't read the book, you may know the story from the 1989 movie <a href="http://en.wikipedia.org/wiki/Field_of_Dreams"><i>Field of Dreams</i></a>, which is closely based on Kinsella's novel. When I saw the movie, I was immediately struck by the fact that J.D. Salinger had vanished from the story and had been replaced by a totally fictional character named Terrence Mann. I had a work-related reason to learn more about the reason for this dramatic change in the <i>dramatis personae.</i> So I called around and finally managed to locate W.P. Kinsella, who was living at the time in White Rock, British Columbia, writing more novels. (I must say he was uncommonly cordial and gracious to a young lawyer calling him completely out of the blue.) I asked him: "What happened to J.D. Salinger?" He told me that the lawyers had said that Salinger, who in 1989 was still very much alive, had to be cut out of the movie version of <i>Shoeless Joe</i>. The lawyers were worried that Salinger (who had recently pursued a highly publicized<a href="http://scholar.google.com/scholar_case?case=5897920406927075288&hl=en&as_sdt=2&as_vis=1&oi=scholarr"> lawsuit </a>to block publication of an unauthorized biography that quoted from his unpublished letters) might try to block the release of the movie as a violation of his right of publicity. The lawyers decided they couldn't take that chance. <br />
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(By the way, as far as I know, Salinger and his lawyers never threatened legal action in connection with <i>Field of Dreams</i>;<i> </i>the Hollywood lawyers simply feared he might. I could be wrong about that. If anyone knows for sure, please post a comment or send me a message.)<br />
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</div><div>In 1989, New York State Legislature was considering a bill that would have extended the "right of publicity" to the dead. If the law had passed, the heirs of dead celebrities could sue if their illustrious ancestors' names were used in advertising for "purposes of trade," just as living celebrities could sue under New York law -- then and now. I was asked to participate in a panel discussion with one of the sponsors of the New York legislation. And the reason I had tracked down W.P. Kinsella was to support one of the points I wanted to make:</div><div><blockquote>Shoeless Joe Jackson died in 1961. If New York enacts a statute recognizing a descendible right for publicity for up to a half century after death, I'm afraid that lawyers will be telling the W.P. Kinsellas of this world that not only do you have to cut J.D. Salinger out of <i>Shoeless Joe, </i>but you have to cut Shoeless Joe out of <i>Shoeless Joe</i>.</blockquote>Well, New York didn't enact a post-mortem right of publicity statute in 1989. But the <a href="http://overlawyered.com/2010/02/a-70-year-post-mortem-right-of-publicity/">legislators are still trying</a>, and a similar bill was introduced for legislative consideration in 2010 and now has now been introduced again in 2011. At the same time, there is a movement afoot to enact a <a href="http://www.inta.org/Advocacy/Pages/USFederalRightofPublicity.aspx">federal right of publicity</a> statute that would include post-mortem protection.<br />
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This is an active, controversial, and (by the low standard of lawyers) interesting area of the law, and my opinion as to the imprudence of a descendible right of publicity may be in the minority is, of course, just that -- one person's opinion. The fact of the matter is that a post-mortem right of publicity is the law in many states. Writers should be aware that (as long as they don't falsely imply that their works are authorized or endorsed by the heirs of a dead celebrity) they have a strong argument that the depiction of the dead in works of fiction is protected by the First Amendment. Again, think of Oates, DeLillo, Cunningham -- and Kinsella. The statutes and the case law generally attempt to distinguish between conventionally commercial uses of a celebrity's name and likeness (such as use of images on tee-shirts) and more expressive, transformative uses (such as, one hopes, use in novels and films). But the scope of the post-mortem right of publicity is none-too-clear, and celebrities' estates may be well-funded, aggressive, and lawyered-up. It's a grey area, and it may make sense to seek out legal advice before launching on a major project. Like Steve Hillard, you could conceivably end up with a fight on your hands. If you do, it would be cheerful to have the support of an established publishing house.<br />
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Hilliard doesn't. He self-published his novel. About 900 copies had been sold prior to the filing of the lawsuit.<br />
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<b>Postscript</b>: The right of publicity is not the only arrow in the quiver of those who would seek to prevent the use of real people, living or dead, as characters in fictional works. Here, from lawyer Mark Litwak, is a <a href="http://www.marklitwak.com/articles/film/self_defense.html">good summary</a> of the various legal theories that have been invoked, with greater or lesser success. See also this summary <a href="http://www.davidcrocker.com/docs/29.RightsofPublicity.pdf">from UK attorney David Crocker</a> comparing UK and US law on the descendible right of publicity. Finally, you might be interested in this account from The Hollywood Reporter of a <a href="http://www.hollywoodreporter.com/blogs/thr-esq/judge-jimi-hendrix-case-declares-98186">federal judge recently holding the Washington State right of publicity statute unconstitutional in part</a>.<br />
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<b>Update</b>: Writer Diana Stevan's comment reminded me that I should have mentioned the lawsuit recently filed against Kathryn Stockett, author of<i> <a href="http://www.amazon.com/Help-Kathryn-Stockett/dp/0399155341/ref=sr_1_1?s=books&ie=UTF8&qid=1299353629&sr=1-1">The Help</a>. </i>The plaintiff is a sixty year-old woman, who once worked as a maid for one of Stockett's relatives; she claims that she was used as the model for one of the principal characters in the book. As is typical of such cases involving living plaintiffs, the complaint alleges a hodgepodge of legal theories, including violation of the right of publicity, false light invasion of privacy, and intentional infliction of emotional distress. Here is an <a href="http://www.salon.com/books/the_help/index.html">article by Laura Miller of <i>Salon</i></a> about the case. A copy of the complaint is <a href="http://kingfish1935.blogspot.com/2011/02/maid-sues-author-of-help.html">here</a> on the Jackson Jambalaya blog. And here is a good discussion <a href="http://blog.writersdigest.com/norules/CommentView,guid,24d80195-193d-4d5e-a517-ca10949ade44.aspx">Susan Cushman and lawyer John Mason</a> on Jane Friedman's <i>Writer's Digest </i>blog.<br />
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See Diana's fine blog at <a href="http://www.dianastevan.com/">http://www.dianastevan.com/</a>.</div><div><br />
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</div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com3tag:blogger.com,1999:blog-3094213262059652791.post-83590354385084775922011-02-26T12:48:00.004-05:002011-02-26T13:50:14.284-05:00Distinguishing the Good, the Bad, and the Ugly in Publishing AgreementsWhat are some of the best online and ink-on-paper resources regarding publishing agreements? I'll try to answer that question below, and I will point you to at least one really cool (Columbia University) site. But, first, here is a bit of general advice on how such resources should be used.<br />
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1. Publishing agreements are often long and complicated legal documents. Some are also filled with traps for the unwary. These can be treacherous waters, and you need a guide.<br />
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2. Authors often wonder whether, in seeking advice, they should consult a literary agent, a literary property attorney, a book on publishing law, or simply a friend who has signed such an agreement before. All can be helpful in somewhat different ways.<br />
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3. If you already have an agent, she would be your first and likely best source of information. A good agent knows the ins and outs of the documents (such as standard book publishing agreements) that she deals with on a daily basis and -- crucially -- has an informed view about what a literary work may be worth in the marketplace. She will also (one hopes) have a web of relationships with acquisition editors, which is, of course, helpful in placing a work and obtaining the best financial terms. But, for a beginning writer, finding a good agent can sometimes be almost as difficult as finding a publisher. <br />
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4. Agents and lawyers have different areas of expertise. (Of course, some agents, like the venerable <a href="http://en.wikipedia.org/wiki/Morton_L._Janklow">Mort Janklow</a> <i>are</i> lawyers.) Like an agent, an experienced literary property lawyer can explain your rights and duties under the terms of a publishing agreement (and point out all of the ways in which you are being taken advantage of). But a literary property lawyer may not have any idea how much money your work could reasonably command, and he may not be much use at all in placing it for you. On the other hand, a literary property lawyer may be especially helpful in a deal that is somewhat out of the ordinary. Consequently, an agent may sometimes enlist the services of a literary property attorney, on an "as needed" basis. Keep in mind that a lawyer who does not regularly do intellectual property work may not be cost-effective.<br />
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5. Sometimes an author is presented with a publishing deal that (1) he has obtained without the assistance of an agent, and (2) he knows to be a fair financial deal. (An example might be a proposed contract from a university press for an academic work, where there is no reasonable prospect for a large advance or meaningful royalties.) In that case, it might make sense to consult a lawyer without pulling an agent into the deal. An agent understandably may want her standard commission in exchange for her advice, even though she has not placed the book; and if there is only, say, a $1,000 advance, she may not be interested in getting involved, even though it is a bird in hand. Of course, if you have access to an agent, it never hurts to ask whether she would be willing to review your contract for a reasonable flat fee. And, of course, a lawyer's advice will not come cheap either, probably costing you several hundred dollars an hour, depending on where you live. (That said, reviewing a book contract shouldn't ordinarily take very long.)<br />
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6. Particularly if money is tight, you may want to explore alternative sources of personalized advice on publishing agreements. Members of the Author's Guild can make use of the Guild's <a href="http://www.authorsguild.org/services/legal_services/contract_reviews.html">contract review service</a>. The National Writers Union <a href="http://www.nwu.org/contract-advice">provides a similar service</a>. Writers who are not members of associations that provide contract advice might be able to obtain help from volunteer lawyers groups, such as those <a href="http://www.rightsofwriters.com/2010/12/44-places-where-writers-and-other.html">listed in this previous post</a>, albeit they may not be able to assist on a <i>pro bono</i> basis if your income exceeds their set ceilings.<br />
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7. A friend who has experience with publishing agreements can sometimes provide good advice. He will certainly have your best interests at heart, and (depending on the friend) may have valuable insights. But a little knowledge is a dangerous thing, and so . . . .<br />
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8. Even if you have an agent or a lawyer or a well-informed friend, you should educate yourself about the legal and business terms of publishing agreements. There are several online and off-line resources that provide a good place to start.<br />
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9. My current favorite: I recently stumbled across a highly instructive website, maintained by Columbia University, at <a href="http://www.keepyourcopyrights.org/">KeepYourCopyright.org</a>. It includes <a href="http://www.keepyourcopyrights.org/contracts/clauses/by-type/">this entertaining and instructive feature</a> that gathers together 173 different clauses from contracts with writers and other creative people, and rates each clause as "creator-friendly," "could be worse," "creator-unfriendly," or "incredibly overreaching." Even more helpfully, the site explains in a paragraph or two the reasons for each rating. You may find it useful to compare the key clauses posted on this site with the corresponding clauses in any contract you are offered. It can be illuminating.<br />
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10. The Science Fiction Writers Association has a <a href="http://www.sfwa.org/category/information-center/contracts-and-copyrights/sample-contracts/">good introduction to publishing contracts</a> on its website, as well as a few specimen agreements. <br />
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11. There are several practicing lawyers who have posted on their websites useful resource materials concerning publishing agreements. For example, Lloyd Jassin provides a <a href="http://www.copylaw.com/new_articles/final.three.html">book contract checklist</a> at his CopyLaw.com website. And here are links to <a href="http://www.mbbp.com/resources/iptech/book_publishing_contracts.html">another checklist</a> and <a href="http://www.mbbp.com/resources/iptech/publishing_contracts.html">an outline of the "nuts and bolts" of publishing contracts</a> -- both from Boston attorney Howard Zaharoff.<br />
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12. Many publishing lawyers own a copy of <i>Perle & Williams on Publishing Law; </i>pertinent portions relating to publishing contracts may now be <a href="http://books.google.com/books?id=TxOYtOtcz80C&pg=SA2-PA3&lpg=SA2-PA3&dq=%22publishing+contracts%22&source=bl&ots=mBDc0d0kSj&sig=jsgzM8CQGz_e-HpgMBQsMFXhdZY&hl=en&ei=l_BnTdfCHsK78gb4kayOCw&sa=X&oi=book_result&ct=result&resnum=5&ved=0CEcQ6AEwBDhG#v=onepage&q=%22publishing%20contracts%22&f=false">viewed through Google Books</a>. Non-lawyers will actually find it quite readable. Similarly, a useful chapter from Roy Kaufman's <a href="http://books.google.com/books?id=3t2dgjXFBfUC&printsec=frontcover&dq=%22publishing+agreements%22&source=bl&ots=EHECCbv8kZ&sig=GUfMPOLPcxHlwXi-Tm4XKXjQP-o&hl=en&ei=lfJnTb2cJIGs8AbBy_2KCw&sa=X&oi=book_result&ct=result&resnum=7&ved=0CFoQ6AEwBjgU#v=onepage&q&f=false"><i>Drafting Print and Online Agreements</i></a> may also be accessed through Google Books. I frequently consult Roy's fine collection of model agreements in my practice.<br />
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13. As to ink-on-paper resources, all of the books discussed in this <a href="http://www.rightsofwriters.com/2010/12/best-books-on-writing-and-law.html">earlier post</a> have useful things to say about publishing agreements. If I had to choose just one on this subject, I would select <span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;"><a href="http://www.amazon.com/Writers-Legal-Guide-Authors-Reference/dp/1581152302/ref=sr_1_1?s=books&ie=UTF8&qid=1292033071&sr=1-1" style="color: #993200; text-decoration: none;"><i>The Writer's Legal Guide</i></a></span><span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;">, by Tad Crawford and Kay Murray. </span><span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;"><i><a href="http://www.amazon.com/Negotiating-Book-Contract-Authors-Lawyers/dp/1559213833/ref=sr_1_1?s=books&ie=UTF8&qid=1292033186&sr=1-1" style="color: #993200; text-decoration: none;">Negotiating a Book Contract</a></i></span><span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;">, by Mark Levine, and </span><span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;"><a href="http://www.amazon.com/Writers-Legal-Companion-Complete-Handbook/dp/073820031X/ref=sr_1_1?s=books&ie=UTF8&qid=1292033263&sr=1-1" style="color: #993200; text-decoration: none;"><i>The Writer's Legal Companion</i></a></span><span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;">, by Brad Bunnin and Peter Beren, are also quite good.</span><br />
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<span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif;"><span class="Apple-style-span" style="font-size: 15px; line-height: 21px;">14. So, here is what I would recommend you do before signing your first publishing agreement. First take a look at the online resources. Then buy (or borrow) and read the relevant sections of at least one of the law and publishing books. If you have access to an agent, she should be your first resort for personalized advice. If you don't have an agent, consider seeking personalized advice from a writers organization or a literary property lawyer before signing any professionally or commercially significant publishing agreement. Here is <a href="http://www.rightsofwriters.com/2010/11/ur-story-writers-understand-what-youre.html">a cautionary story</a> about what can happen if you don't.</span></span><br />
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<span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif;"><span class="Apple-style-span" style="font-size: 15px; line-height: 21px;"></span></span>15. But keep a sense of proportion about it all. What if, for example, you are presented with a <span class="Apple-style-span" style="color: #222222; font-family: Georgia, Utopia, 'Palatino Linotype', Palatino, serif; font-size: 15px; line-height: 21px;">proposed agreement for a one-off magazine article that you have only spent a few days writing and that will generate a fee of only a few hundred dollars? It would be great to have your agent glance through it, if you have one. It would be great to have your cousin, the intellectual property lawyer, take a look at it for free. But, realistically, you aren't going to be eager to pay a lawyer to review your contract when your profit margin is slim to the point of anorexia. That's why it's important for writers to teach themselves what they can about contracts from the myriad of resources available. </span>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com2tag:blogger.com,1999:blog-3094213262059652791.post-88157849215723008872011-02-17T09:44:00.001-05:002011-02-17T10:00:46.597-05:00Titles and the Law: Can I Call My Novel "The Great Gatsby"?I just finished reading <a href="http://www.amazon.com/Nemesis-Philip-Roth/dp/0547318359/ref=sr_1_1?ie=UTF8&s=books&qid=1297092633&sr=1-1"><i>Nemesis</i> by Philip Roth</a>. When I was originally looking to buy a copy online, I was struck by the fact that there are roughly a dozen earlier novels by the same title that are still in print -- including works by such well-known authors as Agatha Christie and Isaac Asimov. A legal problem for Roth? Nah.<br />
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Let's take a look at three legal theories that authors and publishers have sometimes asserted (with varying degrees of success) in lawsuits to protect book titles.<br />
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1. <i>Copyright Law</i>. U.S. courts have unanimously held that titles are <i>not</i> copyrightable. <a href="http://scholar.google.com/scholar_case?case=15776946223774536743&hl=en&as_sdt=2&as_vis=1&oi=scholarr">Here is one such case.</a> Indeed, the Copyright Office will not register a claim of copyright in a title, as it explains <a href="http://www.copyright.gov/circs/circ34.pdf">in Circular 34</a>:<br />
<blockquote><span class="Apple-style-span" style="font-family: inherit;">To be protected by copyright, a work must contain a certain minimum amount of authorship in the form of original literary, musical, pictorial, or graphic expression. Names, titles, and other short phrases do not meet these requirements.</span></blockquote>Given the rationale for non-protectability, my wonderful copyright professor in law school, the late <a href="http://www.nytimes.com/2007/11/09/nyregion/09kernochan.html">John Kernochan</a>, once posed the question whether the inventive 26-word title of Peter Weiss's play <i>The Persecution and Assassination of Jean-Paul Marat as Performed by the Inmates of the Asylum of Charenton Under the Direction of the Marquis de Sade</i> <a href="http://www.amazon.com/Persecution-Assassination-Jean-Paul-Performed-Charenton/dp/1577662318">aka Marat/Sade</a> would be copyright-protected. After all, the title is as long as some poems. While it would certainly be worth a try to argue that a lengthy and highly expressive title is copyrightable, suffice it to say, the courts and Copyright Office have never, to my knowledge, recognized an exception of the sort that Professor Kernochan hypothesized. (But see <a href="http://www.novalis.org/cases/ET.html">this case</a> finding that the famous short phrase of movie dialogue "E.T. phone home" was likely protected by copyright.)<br />
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2. <i>Trademark Law</i>. Here is where it starts to get complicated. The Patent and Trademark Office ("PTO") will not register the title of a stand-alone literary work (including a fiction or non-fiction book, song, movie, or video game). But the PTO will register as a trademark a designation for a <u>series</u> of works. Think of [Insert here almost any subject you can think of] For Dummies. "For Dummies" is a federally registered trademark for a series of "non-fiction books, guides, manuals, and catalogs on a wide variety of topics." Similarly, "Harry Potter" is a federally registered trademark for a series of novels for young people, among many other items. But, if there had been only one <i>Harry Potter </i>novel and it had not become the basis for a series of books and movies and countless merchandising opportunities, trademark registration would not have been an option.<br />
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If you do manage to obtain a federally registered trademark for your series of books, you might have a plausible basis for a trademark infringement claim arising out of the publication of a book with a confusingly similar title, particularly if it's on a confusingly similar subject. Trademark infringement cases involving a registered mark for a series of books are not especially common, but they do come up from time to time. The <a href="http://scholar.google.com/scholar_case?case=5746783985869211125&hl=en&as_sdt=2&as_vis=1&oi=scholarr">Fishing Hot Spots case</a> is one example. A federal trademark registration gives you a significant advantage in any litigation over a title because it carries with it a legal presumption of exclusive nationwide rights to use the name in connection with the goods for which it's registered. The defendant might still be able to prove that his use creates no likelihood of confusion, but it will be an uphill battle.<br />
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<span class="Apple-style-span" style="-webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px;">3. <i>Unfair Competition or Passing Off</i>. But it gets even more complicated. Although the PTO won't register a trademark for a stand-alone literary work, the federal courts will nonetheless sometimes invoke the Lanham Act to protect unregistered titles from confusingly similar uses by others. However, the courts will only extend protection to titles that have achieved "secondary meaning." Here's how the Second Circuit Court of Appeals explained "secondary meaning" in </span><span class="Apple-style-span" style="-webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px;"><a href="http://scholar.google.com/scholar_case?case=1704090655237798849&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><i>Rogers v. Grimaldi</i></a></span><span class="Apple-style-span" style="-webkit-border-horizontal-spacing: 2px; -webkit-border-vertical-spacing: 2px;">: </span><br />
<blockquote>The purchaser of a book, like the purchaser of a can of peas, has a right not to be misled as to the source of the product. Thus, it is well established that where the title of a movie or a book has acquired secondary meaning — that is, where the title is sufficiently well known that consumers associate it with a particular author's work — the holder of the rights to that title may prevent the use of the same or confusingly similar titles by other authors . . . . Indeed, it would be ironic if, in the name of the First Amendment, courts did not recognize the right of authors to protect titles of their creative work against infringement by other authors.</blockquote><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">Similarly, most states have laws forbidding "passing off," which is a form of unfair competition. While the laws vary from state to state, here, again, in order to prevail, a plaintiff-author will likely have to prove that her title has acquired "secondary meaning" and/or that the defendant adopted his confusingly similar title with the intention of deceiving book buyers into believing that his book was somehow connected with plaintiff's book.</div><br />
So, to simplify quite a lot, you may be able to use the federal or state unfair competition laws to protect against the publication of a subsequent book by another author with a title that is confusingly similar to your title. But first you must be able to prove to a court's satisfaction that a substantial portion of the book-buying public would assume that any book by that title must have been written by you or must have been published by your publisher. That's actually a hard row to hoe. Only occasionally will the title of a single work in a single medium be deemed to have achieved secondary meaning. On the other hand, if the author has published a series of books using the same title, it is more likely to be found to have achieved secondary meaning, even if it has not been registered as a trademark, as in this case concerning the <a href="http://scholar.google.com/scholar_case?case=9907256353585916992&hl=en&as_sdt=2&as_vis=1&oi=scholarr">protectability of William Bennett's title <i>The Book of Virtues</i></a>.<br />
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Let's consider how these principles might play out in various situations.<br />
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Given that <i>Nemesis </i>is a fairly obvious title for a work evoking a mood of menace or suspense, given that by the time Roth published his novel there were already several other books called <i>Nemesis</i> in print, and given that readers are accustomed to distinguishing among novels by their authors as well as their titles, it is virtually unthinkable that the Asimov estate or the Christie estate could prove that the public associated the title <i>Nemesis</i> exclusively with Isaac Asimov, Agatha Christie, or anyone else. And, for a host of reasons, a reader looking to buy Christie's <i>Nemesis </i>is unlikely to end up buying Roth's book by mistake. So, Roth doesn't have to lose any sleep about the unoriginality of his title. Similarly, if I were to call my novel <i>Nemesis</i>, Roth probably could not successfully pursue a claim against me.<br />
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But what if I were to entitle my novel <a href="http://www.amazon.com/Swamplandia-Karen-Russell/dp/0307263991/ref=sr_1_1?s=books&ie=UTF8&qid=1297909143&sr=1-1"><i>Swamplandia</i></a>?<i> </i>Karen Russell recently released a popular and well-regarded novel by that distinctive name. There does not appear to be a single other book listed on Amazon, in-print or out-of-print, called <i>Swamplandia</i>. Under the circumstances, a court might be tempted to conclude that the only reason I adopted the title <i>Swamplandia</i> was to confuse book buyers into mistakenly buying my book when they really meant to buy Russell's. I fear that Karen Russell might have a plausible claim against me for unfair competition -- at least if I were to publish a book called <i>Swamplandia</i> right now. But if, like most books, <i>Swamplandia </i>eventually fades from the consciousness of the book-buying public, it might lose its "secondary meaning," and another author could then safely adopt the same title -- or one that is very similar. That's effectively what the court decided in the venerable case of <i>International Film Service v. Associated Producers</i>, 273 Fed. 585, 587 (2d Cir. 1921) (involving the title "Broken Doll").<br />
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So, given the passage of time since F. Scott Fitzgerald published his little novel, could I call my novel <i>The Great Gatsby?</i> As a matter of copyright law, no problem. And "The Great Gatsby" does not appear to be a federally registered trademark for books or movies (although, curiously, there is a "Great Gatsby's" registration for auction services). As a result, there probably would be no claim for infringement of a registered trademark. Nevertheless, given the distinctiveness of the title, the enduring fame of Fitzgerald's novel, the fact that the work has been adapted for the movies, and a host of other factors, I would be cruising for a lawsuit if I chose <i>The Great Gatsby</i> as the title for my novel unless (and maybe even if) the cover was filled with wall-to-wall disclaimers.<br />
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That said, there <i>are</i> several other books currently in print by authors other than Fitzgerald that do have "Great Gatsby" in the title -- namely, non-fiction books of literary criticism, <a href="http://www.amazon.com/Great-Gatsby-Classroom-Searching-Literature/dp/0814150985/ref=sr_1_22?s=books&ie=UTF8&qid=1297911167&sr=1-22">such as this one.</a> If I were using "The Great Gatsby" in my title to refer to <i>Fitzgerald's</i> book, it might qualify as <a href="http://en.wikipedia.org/wiki/Nominative_use">nominative fair use</a> and therefore not be an infringement. In other words, if I make it clear enough that my book is <b>about</b> <i>The Great Gatsby,</i> but that it is not Fitzgerald's book or some kind of sequel, then my "nominative fair use" defense will likely succeed. (It would probably help to have a subtitle or prominent disclaimer on the cover that further clarifies this is not <i><u>The</u> Great Gatsby, </i>but a book <b>about</b> <i>The Great Gatsby</i>.)<br />
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<div class="MsoNormal">The same general legal principles that apply to recycling of book titles hold true as well for recycling song titles and movie titles. However, as described in <a href="http://www.slate.com/id/2118602/">this piece in <i>Slate</i></a>, the Motion Picture Academy of America has a system designed to minimize duplication of movie titles, including a procedure for arbitrating title disputes. Still, "video <span class="Apple-style-span" style="line-height: 20px;"><span class="Apple-style-span" style="font-family: inherit;">doppelgangers" are common, as discussed in this </span></span><a href="http://www.ew.com/ew/article/0,,306342,00.html"><i>Entertainment Weekly</i> article</a>. As to the music industry, Kate Kiefer of <i>Paste </i>magazine posted<i> </i><a href="http://www.pastemagazine.com/blogs/lists/2009/07/different-songs-with-the-same-names.html">this blog about duplicate song titles</a>. And <a href="http://www.amiright.com/music-trivia/same-title-different-song/">this site</a> maintains a list of duplicate song titles, with some 3,092 entries. The "most recycled song title"?: "Home."<br />
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In short, using a title that has previously been used on another book is, more often than not, perfectly lawful. In a relatively rare instance where your title is likely to create confusion with a previously published book, your publisher will likely urge you to adopt a different, safer title -- like <i>Nemesis</i>.<br />
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</div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com37tag:blogger.com,1999:blog-3094213262059652791.post-58347720932457963422011-02-11T23:58:00.005-05:002011-03-16T17:19:19.288-04:00What Can You Do If Your Co-Author Denies You The Credit You Deserve?<span class="Apple-style-span" style="font-family: inherit;"></span><br />
<div><span class="Apple-style-span" style="font-family: inherit;">A friend of mine, whom I will call Julia, recently co-wrote an article with one of her supervisors at work. Julia did the lion's share of the research and writing and was told that she would be given a co-author credit when the article appeared in print. Indeed, a preliminary version of the article (blessed by her supervisor) specifically listed Julia as co-author. However, between the time she wrote the article and when it was scheduled to appear, she took a job with a competitor. Lo and behold, when the article was ultimately published, Julia had suddenly become, in Orwell's phrase, an unperson. Not only was her name omitted from the by-line, but her co-author gave her no credit at all, not even a fleeting mention in a footnote. Slimy. </span></div><div><span class="Apple-style-span" style="font-family: inherit;"><br />
</span></div><div><span class="Apple-style-span" style="font-family: inherit;">What could she do? What should she do? </span><br />
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<span class="Apple-style-span" style="font-family: inherit;">This is, of course, a woefully common fact pattern. Credit is, of course, a key consideration in all types of writing, ranging from million-dollar screenplays to scholarly papers where the writer has no expectation of any payment. </span>Regrettably, as is so often the case, there may be a wide disparity between the legal remedies theoretically available, on the one hand, and the practical cost-effective options, on the other.<br />
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As to what Julia <i>could</i> do, here are the principal legal remedies that credit-robbed writers have sometimes successfully pursued:</div><div><div></div></div><div><span class="Apple-style-span" style="font-family: inherit;"><br />
</span></div><div><span class="Apple-style-span" style="font-family: inherit;">1. <i>Copyright</i>. The most direct attack would ordinarily be for Julia to file a lawsuit seeking a declaratory judgment that she is the joint author and co-owner of the copyright and seeking an accounting of any revenues (to which, as co-owner, she would be presumptively entitled to half).</span><br />
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<span class="Apple-style-span" style="font-family: inherit;"></span>However, in Julia's case, the article was written within the scope of her duties to the company -- i.e., at the <span class="Apple-style-span" style="font-family: inherit;">direction of her boss, </span>on company time, using company computers, accessing subscription databases, such as Lexis-Nexis, paid for by the company, for the purpose of demonstrating the company's expertise in the subject area. For these reasons and others, her contribution to the work probably constitutes "work made for hire," as defined in <a href="http://www.copyright.gov/title17/92chap1.html#101">Section 101 of the Copyright Act</a>, belonging to the company. Indeed, her supervisor's contribution to the article is also probably "work made for hire." As a result, the company -- rather than either of them individually -- probably owns the copyright. As a result, my friend could <i>not </i>seek a declaratory judgment for joint ownership of copyright -- much less pursue a claim for copyright infringement. Indeed, one co-owner of a copyright owner cannot ordinarily sue the other for infringement.<br />
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That said, if you are a freelancer or an <a href="http://en.wikipedia.org/wiki/Independent_contractor">independent contractor</a>, you, unlike Julia, might have a basis for a declaratory judgment action. Here, for example, is the <a href="http://ftp.resource.org/courts.gov/c/F3/78/78.F3d.1007.95-30071.html">Court of Appeals decision</a> in an epic battle by songwriter Shirley Goodman to obtain a declaratory judgment that she was the joint owner of the copyright in the rock and roll classic, <a href="http://en.wikipedia.org/wiki/Let_the_Good_Times_Roll_(Shirley_and_Lee_song)">"Let the Good Times Roll"</a>.<br />
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2. <i>False Designation of Origin Under the Lanham Act. </i>Until 2003, my friend could have brought an action under the federal Lanham Act, which prohibits various forms of unfair competition. For many years, the federal courts held that a contributor to a creative project could sue, under the Lanham Act, for false designation of origin if she was not given proper credit -- or any credit -- for her work. For example, in <a href="http://scholar.google.com/scholar_case?case=15829356411592991559&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><i>Lamothe v. Atlantic Recording Corporation</i></a>, two members of the band Ratt sued other members of the band, alleging that they had wrongfully been denied credit as co-writers of the band's songs. An appeals court <a href="http://scholar.google.com/scholar_case?case=15829356411592991559&hl=en&as_sdt=2&as_vis=1&oi=scholarr">held</a> that one of the purposes of the Lanham Act is to ensure that "the producer of a good or service receives appropriate recognition and that the consuming public receives full information about the origin of the good." The Lanham Act even offered the possibility of triple damages if the defendant's conduct was egregious. But then came the Supreme Court's decision in <a href="http://www.law.cornell.edu/supct/search/display.html?terms=copyright&url=/supct/html/02-428.ZS.html"><i>Dastar v. Twentieth Century Fox Film Corp</i>.</a> <i>Dastar </i>is a complicated case, which I won't try to summarize here, but the effect of the decision was to slam the door on the use of the Lanham Act in cases of alleged false attribution of creative credit or omission of credit.<br />
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3. <i>Breach of Contract. </i>After <i>Dastar</i>, Julia's last best hope for a successful lawsuit would probably be a claim for breach of contract. Not all contracts have to be in the form of signed writings in order to be enforceable. In many instances, an oral agreement on authorship credit could be enforceable. Or a contract might be inferred from the circumstances (e.g., the draft with Julia's name on it). [Don't get me wrong: it's always better from a legal perspective to have a written, signed contract, and some agreements, like "work made for hire" agreements and copyright assignments <i>must </i>be in writing.] Basically, Julia's claim would boil down to: you promised to give me credit, you broke your promise, and I was injured as a result.<br />
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There are a few other possible legal theories: unjust enrichment, state deceptive trade practices laws, state artist's rights statutes, etc. But none is especially likely to be more successful than a straight-out breach of contract claim.<br />
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But let's get real. Julia's boss wasn't paid for the article. So even if she were to win a breach of contract case, she probably would not receive more than token damages. It's too late for a court to order that her name be included in the by-line of the printed article. Contract damages on the theory of injury to her professional reputation would be extremely speculative and, as a result, unavailable. With no real prospect for recovering interesting money damages, Julia could never get a lawyer to take her case on contingency. If she has to pay a good IP lawyer his hourly rate, she would soon find herself writing four figure checks. Maybe one of volunteer lawyers for the arts groups <a href="http://www.rightsofwriters.com/search/label/Free%20Legal%20Services">discussed in this post</a> would help, but Julia may actually have too large an income to qualify for their services.<br />
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So what <i>should </i>Julia do? <br />
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The right strategy in these cases varies wildly depending on the dynamics of the writer's situation. These steps might make sense for Julia, but they might make no sense for you.<br />
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1. <i>Figure out in advance what your objectives are</i>. In Julia's case, her principal goal in writing the piece was to obtain professional recognition. It's too late now to get credit in the printed article. But it might still be feasible to ask that a correction be published in conjunction with the online version of the article, acknowledging her contribution. This would enable her to point to the article as her own, include it on her resume, etc., so it is a goal that may be worth pursuing. Your goal, by contrast, may be reasonable financial compensation, another project to work on, an apology, a email you can point to acknowledging your role as co-author, shaming of your co-author, or sweet revenge -- each of which may require a different strategy.<br />
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2. <i>Gather your evidence. </i>Pull together and preserve all emails, drafts, letters, contracts, invoices, etc. relating to the project. Review whether there is any objective, documentary evidence of the promise of credit. Or does it come down to your word against your co-author's?<br />
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3. <i>Decide whether you dare to complain</i>. There are times when it's frankly not worth it to fight over credit -- an undistinguished article in an undistinguished publication, no money at stake, the risk of offending someone whose goodwill you depend upon. For example, if Julia were still working at her old company, making an issue over the denial of credit might have cost her a raise, a promotion, or even her job. Those considerations might have had a bearing on whether and how she pursued her grievance. But, because she is no longer working under her co-author, she has little to lose in fighting for the credit she deserves. I am not suggesting that writers should hesitate to complain when they've been screwed; all I am saying is that it's important to maintain a sense of proportion about any dispute.<br />
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4. <i>Decide whom to complain to. </i>Obviously, the first person you will complain to will be your co-author. But are you willing and able to complain to others? Keep in mind that if you announce to a third party that your co-author robbed you of proper credit you may run a risk that your co-author might claim you have libeled him. (If I only tell you that "you're a plagiarist," it isn't libel; but if I make the same statement to your boss and can't back it up, it could be. See this interesting article on <a href="http://www.skidmore.edu/~rscarce/Writing_Tips/Judge_or_Judge_Not%3F.html">libel claims arising from plagiarism allegations</a>.) If you are planning on complaining to your co-author's boss or the publication's editor or making your grievance known to the public at large (e.g., on your blog or a gripe site), it may be wise to consult a lawyer first.<br />
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5. <i>Decide how to complain. </i>A face-to-face meeting is often the most effective means of resolving any dispute. Emails and letters have the virtue of giving you time to collect your thoughts and providing a record of what has been said. Your complaint should generally make clear (a) your basis for claiming that you were promised a certain form of credit; (b) the way in which the promise was breached; (c) what you want your co-author to do by way of remedy; and (d) the deadline for implementing the remedy. These are the classic elements of a lawyer's letter. If you threaten litigation, it should not be an idle threat.<br />
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6. <i>Decide early on how far you are willing to go. </i>If litigation is a genuine consideration, see that lawyer sooner rather than later. Consider whether there is anything you would be willing to give in return for the remedy you are seeking.<br />
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7. <i>Keep a record of what you've done to pursue your complaint. </i>Memorializing your conversations and keeping copies of your emails and letters of complaint may be important both offensively and defensively.<br />
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8. <i>Be persistent but never harass. </i><br />
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9. Mediation? Is there anyone that both you and your co-author would trust to help facilitate a resolution?<br />
10. <i>Small claims court? </i>Julie could pursue a claim for breach of contract in small claims court. In most jurisdictions, individuals need not appear through a lawyer, although corporations must. You can't recover much money in small claims court; usually the court's jurisdiction is limited to claims of a few thousand dollars. In Julia's case, however, the problem is that she really doesn't have any financial damages, and, even in small claims court, they don't award you money just for being right.<br />
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In some contexts, there may be non-judicial means of seeking redress. In the film industry, the Writers Guild of America and the Directors Guild of America have <a href="http://en.wikipedia.org/wiki/WGA_screenwriting_credit_system">rules on properly crediting writers and mechanisms for enforcing them.</a> Universities often have ethics committees that will review disputes over proper crediting of co-authors. Some scholarly and professional organizations will also investigate accusations of failure to credit and the related offense of plagiarism.<br />
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So what should Julia do? If she had a claim of co-authorship of a <a href="http://scholar.google.com/scholar_case?case=8500797866364583514&hl=en&as_sdt=2&as_vis=1&oi=scholarr">hit Broadway musical</a> or a <a href="http://www.nytimes.com/2009/10/13/arts/music/13anka.html">Michael Jackson song</a>, full-fledged litigation might be worth considering. But, with no pot of gold at the end of the rainbow, the most cost-effective result she could reasonably hope for is to argue, bluster, or cajole her co-authors into giving her credit in the online version of the article. And an apology.<br />
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The next time, she will know to document her agreement on co-author credit by an exchange of emails. On bigger projects, as discussed in <a href="http://www.rightsofwriters.com/2011/01/good-fences-when-and-why-co-writers.html">this prior post</a>, she should consider entering into a simple collaboration agreement.<br />
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[Hat tip to DJF for editorial suggestions.]</div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com2tag:blogger.com,1999:blog-3094213262059652791.post-40639020653007712992011-02-04T22:34:00.001-05:002011-02-05T07:51:17.563-05:00Sixteen Things Writers Should Know About Quoting From Letters1. If I send you a letter, unless I have an agreement with you to the contrary, I continue to own the copyright.<br />
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2. As the recipient of the letter, you own the letter itself -- the paper and ink. You can show the letter to others, sell it, give it to a friend, donate it to a library, preserve it, or (with one possible limited exception I will come to in a moment) destroy it. Or to put it in a more lawyerly way, absent an express writing to the contrary, transfer of ownership of the tangible physical property of the letter from me to you does not carry with it the transfer of the copyright.<br />
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3. As the recipient of the letter, you cannot, however, publish the entirety of the letter without my consent (except for another possible limited exception I will come to in another minute). The reproduction right remains with me, as the copyright owner -- as does the right to create a derivative work. If you find my letter housed in a scholarly library, the library's permission to reproduce it will ordinarily <i>not</i> suffice (unless I assigned my copyright to the library). You will need to obtain permission from me or, if I'm dead, my heirs.<br />
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4. You (and others) can, however, quote portions of the letter I sent you, to the extent permitted by fair use. Alas, there are no bright lines as to what constitutes fair use -- no clear assurances that quoting, for example, 30 words from a two-page unpublished letter is surely fair use, while quoting 100 words from the same letter is not.<br />
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5. It is certain, however, that, because a letter is a short work, the number of words that you can safely quote is far smaller than the number you could safely quote from a longer work. You must also quote sparingly from other short works, such as song lyrics and poetry.<br />
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6. For a while, there was disturbing uncertainty as to whether you could quote anything at all from an unpublished letter. The fair use of unpublished letters and diaries was the subject of a series of cases about 20 years ago in which my firm and I represented the defendant biographers and publishers: <a href="http://scholar.google.com/scholar_case?case=5897920406927075288&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><i>Salinger v. Random House</i></a>, <a href="http://scholar.google.com/scholar_case?case=17244869473222131866&q=new+era+v.+henry+hold&hl=en&as_sdt=2,33&as_vis=1"><i>New Era v. Henry Holt</i></a> <a href="http://scholar.google.com/scholar_case?case=8898801401385912084&q=new+era+v.+henry+holt+en+banc&hl=en&as_sdt=2,33&as_vis=1">(see also this decision denying <i>en banc</i> rehearing</a>), and <a href="http://scholar.google.com/scholar_case?case=4969177147306679183&q=wright+v.+warner+books&hl=en&as_sdt=2,33&as_vis=1"><i>Wright v. Warner Books</i></a>. Ultimately in the <i>Wright</i> case, the Second Circuit Court of Appeals clarified that <i>some</i> amount of quotation from unpublished works, such as letters and diaries, can qualify as fair use. Congress then codified this finding by amending <a href="http://www.copyright.gov/title17/92chap1.html#107">Section 107 of the Copyright Act</a> to add this sentence: "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."<br />
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7. Despite the <i>Wright</i> decision and the amendment to Section 107, unpublished status is still a factor to be considered in the fair use analysis, which tilts in the copyright owner's favor. So, as a general matter, publishers advise their authors to quote less from unpublished letters than they might quote if the same letters had previously been published.<br />
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8. I am surely no authority on British law, but my impression is that, under the doctrine of "fair dealing" (the UK equivalent to "fair use"), unpublished status takes on even greater importance than it does in U.S. law. <a href="http://copyright4education.blogspot.com/2010/11/fair-use-v-fair-dealing.html">See this good discussion by Emily Goodhand</a>, aka @copyrightgirl, comparing the U.S. and UK doctrines. <br />
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9. As with any quotation, the more you "transform" what you are quoting -- comment upon it, analyze it, criticize it, put it into a larger context -- the more likely it is that your use will be found to be "fair use." Similarly, a starkly commercial use, such as quotation of a letter in advertising, is less likely to be found fair.<br />
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10. Don't forget that copyright protects expression, not facts and ideas. So, even though you can only <i>quote</i> a limited number of words from a letter, you may still be able to summarize and discuss the facts and ideas contained therein at greater length, as long as you do so in your own words (avoiding close paraphrase).<br />
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11. Letters written by U.S. government officials within the scope of their official employment are in the public domain and may be freely quoted. The same is not necessarily true of letters written by state government employees or government employees in other countries. Letters written by U.S. government officials in their private lives are copyright protected -- as are your letters and mine.<br />
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12. According to Paul Goldstein, the author of one of the leading treatise on copyright: "No reported decision has held that an exchange of letters constitutes a joint work." It is a tempting argument, though, considering that, <a href="http://www.rightsofwriters.com/2011/01/who-owns-interview.html">as discussed in this prior post</a>, some cases hold that the back-and-forth between an interviewer and interviewee gives rise to joint ownership of the copyright in the resulting interview. And I do think that, in the <i>Wright </i>case, the fact the quoted, unpublished letters in question were written by the novelist Richard Wright <i>to </i>the poet-biographer, Margaret Walker Alexander, may have helped push the court in the direction of finding fair use. That said, given that an exchange of letters does not constitute a joint work, the rule in point 1 above holds, i.e., I own the copyrights in the letters I send you, and you own the copyrights in the letters you send to me in reply.<br />
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13. An 1867 Kentucky case, <i>Grigsby v. Breckinridge</i>, established that the recipient of a letter is free to destroy it. However, a few interesting cases, including <i>Baker v. Libbie</i> (involving the letters of Christian Science founder Mary Baker Eddy) have held that, if the letters are still in existence, the writer may be entitled to gain access to them to make copies so as to preserve the intellectual property or to register the copyrights. This issue sometimes comes up when litigation is contemplated.<br />
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14. A few interesting cases, such as <a href="http://scholar.google.com/scholar_case?case=17479339105256524299&hl=en&as_sdt=2&as_vis=1&oi=scholarr">Avins v. Moll</a>, suggest that the recipient of a letter may publish a whole letter, if publication is necessary to defend the recipient's reputation against charges made by the sender. In any event, fair use ordinarily would give the recipient the leeway she needs to deal with this rare circumstance.<br />
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15. Sometimes the circumstances in which a letter is sent can imply that the recipient has permission to publish it. One obvious example is a letter to the editor.<br />
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16. It is always advisable to credit your source when quoting letter or any other source materials, not merely as a matter of scholarly and journalistic ethics and etiquette, but also because some courts have said that the failure give proper credit cuts against the "quoter" in the fair use analysis.<br />
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<a href="http://www.rightsofwriters.com/2010/12/sounding-trumpet-for-fair-use-quotation.html">Again</a>, the philosophy of fair use quotation of letters and other source materials is neatly summed up in this quotation from <a href="http://www.amazon.com/Chicago-Manual-Style-16th/dp/0226104206/ref=sr_1_1?ie=UTF8&s=books&qid=1296874023&sr=1-1"><i>The Chicago Manual of Style</i></a> (brought to my attention by <a href="http://www.doctorsyntax.net/2010/12/lawyers-perspective-on-publishing-and.html">Peter Ginna aka Dr. Syntax</a>);<br />
<blockquote>Fair use is use that is fair--simply that....The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly.</blockquote><div><div style="mso-element: endnote-list;"><div id="edn3" style="mso-element: endnote;"><div class="MsoEndnoteText"><span class="Apple-style-span" style="font-family: 'Times New Roman', serif;"><span class="Apple-style-span" style="font-size: 16px;"><br />
</span></span></div></div></div></div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com14tag:blogger.com,1999:blog-3094213262059652791.post-39354271837199100752011-01-29T10:05:00.005-05:002011-05-17T17:33:50.263-04:00Good Fences: When and Why Co-Writers Should Have Collaboration AgreementsGood fences make good neighbors. If you and another writer are working together on a substantial work, you should consider entering into a collaboration agreement.<br />
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Realistically, you are probably not going to write up an agreement for every small joint project you do. If you are co-authoring a magazine article that is likely to appear one time and earn you $500 at best, a written agreement with your partner might be overkill. But if you are embarking on a book-length work or a screenplay that will consume hundreds of hours of your time or that you hope will earn a truly interesting sum of money, it would be a mistake not to put a collaboration agreement in place. Similarly, if you and a co-writer work together on a series of short works (e.g., a song-writing team, co-authors of a regular column) a collaboration agreement could turn out to be the most important legal document you ever sign -- or don't sign -- relating to your writing.<br />
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The lawsuit over the musical <a href="http://en.wikipedia.org/wiki/Rent_(musical)" style="font-style: italic;">Rent</a> illustrates how a collaboration agreement could spare writers and their heirs a lot of headaches and a lot of money spent on legal fees. At age 29 or so, Jonathan Larson (from my town, White Plains, New York) began work on what ultimately turned out to be one of the most highly acclaimed Broadway hits of its era. Along the way, he enlisted a playwriting professor and dramaturg, Lynn Thomson, to help prepare a version of the show for an off-Broadway production. Thomson had a written agreement with the non-profit theater that was producing the show, but not with Larson. Larson died an early death while the show was in dress rehearsals. The musical was an off-Broadway success and, when it was about to move to Broadway, Thomson approached Larson's estate seeking a percentage of the royalties and a credit. When negotiations broke down, Thomson sued. In the end, Thomson lost at trial and the verdict in favor of the Larson estate was affirmed on appeal. (Read the <a href="http://caselaw.findlaw.com/us-2nd-circuit/1392355.html">court of appeals decision here</a>, which explores, among other things, the arcana of when a "joint work" is created under the Copyright Act. I used to work with and now follow on Twitter one of the lawyers who handled the litigation @amygutman.) Suffice it to say, a written agreement between Larson and Thomson would have been very wise for all concerned.<br />
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Every collaboration is different, and no one agreement is suitable for all writing relationships. At a minimum, you should consider addressing these questions.<br />
<br />
1. Who are the parties to the agreement?<br />
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2. Who will own the copyright in the resulting work? Do you intend to be "joint authors," which has a number of default implications regarding who can license the work to others and how the revenues would be shared, unless you reach a different written understanding? Or do you intend some other kind of relationship? A work made for hire? An assignment of the entire copyright interest to one of you? Your decision regarding authorship will also need to be reflected in the copyright registration application. (See this prior post on <a href="http://www.rightsofwriters.com/search/label/Copyright%20Registration">the basic nuts and bolts of copyright protection.</a>)<br />
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3. How will the work be credited? Whose name will be first? Will it be styled: "you and me," "you with me," "by you as told to me," or will I be a completely invisible ghost?<br />
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4. How will the revenues and expenses be divided? Will one of you receive the money and pass it through to the other (usually a bad idea for the "other")? Can each of you incur expenses that will be reimbursed from the revenues? Who is going to shell out the cash needed for any permissions fees?<br />
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5. What responsibilities will each collaborator have on the work and what are the due dates for each contribution?<br />
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6. Who will made the decisions on how to exploit the work: selecting an agent, choosing a publisher, deciding whether to accept financial terms, etc.? Will such decisions be made jointly? What happens if you disagree?<br />
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7. What happens if you can't sell the work or one of you doesn't uphold your end of the bargain because of illness, death, competing obligations, laziness, incompetence? How will you terminate the relationship? What rights, if any, will each of you own in the work? <br />
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Anticipating what happens if the collaboration fails is every bit as important as (or perhaps more important than) anticipating what happens if the relationship is a roaring success. One of the model agreements linked to below, takes this approach:<br />
<blockquote>If a Collaborator is unwilling to continue or complete work on the Work, the Collaborators shall enter into a written agreement setting forth the rights of the withdrawing Collaborator, including what authorship credit, compensation and copyright ownership, if any, shall be shared with the withdrawing collaborator. The remaining Collaborator shall have the right to complete the work alone or with others. </blockquote><blockquote>In the event that either Collaborator dies or suffers a disability that will prevent completion of his or her respective portion of the Work, or of a revision thereof or a sequel thereto, the deceased or disabled Collaborator shall receive payments pursuant to Paragraph 3 pro rata to the proportion of his or her work completed or, in the case of a revision or sequel, shall receive payments pursuant to Paragraph 3 after deduction for the cost of revising or creating the sequel with respect to his or her portion of the Work. Each Collaborator hereby agrees that the remaining Collaborator(s) shall have the sole power to license and contract with respect to the Work, and approval of the personal representative, heirs, or conservator of the deceased or disabled Collaborator shall not be required.</blockquote>Another one of the model agreements takes this agreement-to-agree approach in the context of a collaboration on a screenplay:<br />
<blockquote>If, prior to the completion of the Work, either Party shall voluntarily withdraw from the collaboration, then the other Party shall have the right to complete the Work alone or in conjunction with another collaborator or collaborators, and in such event the percentage of ownership, as hereinbefore provided in paragraph 1, shall be revised by mutual agreement in writing.</blockquote>(This clause obviously doesn't address death or other involuntary withdrawal, which could make it impossible to reach a new "mutual agreement.")<br />
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The point is to anticipate how best to handle the unwinding of the relationship so that the rights in your work are not consigned to perpetual limbo, if you go your separate ways.<br />
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8. How and where are you going to resolve any disputes that arise between you? Mediation? Arbitration? I'll meet you in court?<br />
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A collaboration agreement should be signed and dated by all parties. Some contractual provisions relating to copyright and other matters much be in a <i>signed writing</i> to be enforceable.<br />
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I have often heard writers complain that negotiating a written contract with a collaborator oozes distrust and would threaten to sour the writing relationship. But if you can't cooperate on crafting a simple agreement, the odds of your having a successful writing marriage are not so hot. And if you can't come to terms before you write your work, imagine the how dysfunctional your relationship will be if your work is wildly successful and you don't have a clear prior understanding about how the money and credit are to be allotted and how decisions about further exploitation of the work are to be made.<br />
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There are many examples of collaboration agreements on the web, including <a href="http://www.vlaa.org/assets/documents/Sample%20Collaboration%20Agreement.pdf">here</a>, <a href="http://www.wga.org/uploadedFiles/writers_resources/contracts/collaboration.pdf">here</a>, <a href="http://jamesaconrad.com/writing/author-collab-print.html">here</a>, <a href="http://www.copyrightguru.com/collaboration1.html">here</a>, and <a href="http://www.pma-online.org/articles/shownews.aspx?id=2001">here</a>. Again, every collaboration is different. In all likelihood, none of these forms will be suitable for <i>your</i> work without modifications. But these examples may help to get you thinking about what your own collaboration agreement should contain.<br />
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You could surely benefit from having a lawyer look at the draft agreement that you and your collaborator draw up. Indeed, the terms of your collaboration agreement could turn out to be more important than the terms of your publishing agreement. But I realize that, because of the expense, a legal review is not always going to happen. Generally speaking, memorializing your understanding with your collaborator in writing is better than not doing so -- even if you are unable to have a lawyer take a look at it.<br />
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There are useful good articles on the web concerning collaboration agreements, including <a href="http://www.copylaw.com/new_articles/collab.html">this one by Lloyd Jassin</a>. The discussions in <a href="http://www.amazon.com/Writers-Legal-Guide-Authors-Reference/dp/1581152302/ref=sr_1_1?s=books&ie=UTF8&qid=1296310794&sr=1-1"><i>The Writer's Legal Guide</i></a><i> </i>and especially <a href="http://www.amazon.com/Writers-Legal-Companion-Complete-Handbook/dp/073820031X/ref=sr_1_2?s=books&ie=UTF8&qid=1296310794&sr=1-2"><i>The Writer's Legal Companion</i></a> can also assist you.Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com3tag:blogger.com,1999:blog-3094213262059652791.post-79748945524462143762011-01-25T21:51:00.005-05:002011-01-25T22:29:31.862-05:00Can a Writer Be Sued for Libeling the Dead? (What Would John Dean Say?)It seems that, whenever a notorious celebrity dies, tell-all biographies appear within a few months -- or even weeks -- filled with unflattering new disclosures. One explanation for this phenomenon is (to quote <a href="http://en.wikipedia.org/wiki/Robert_D._Sack">Judge Robert Sack</a>, the author of one of the two leading treatises on libel):<br />
<blockquote>The dead have no cause of action for defamation under the common law, and neither do their survivors, unless the words independently reflect upon and defame the survivors. </blockquote><a href="http://en.wikipedia.org/wiki/Rodney_A._Smolla">Rodney Smolla</a>, the author of the other leading treatise, concurs:<br />
<blockquote>There is no liability for defamation of the dead, either to the estate of the deceased or to the deceased's descendants or relatives.</blockquote>The rule seems to be much the same under UK common law, as <a href="http://news.bbc.co.uk/2/hi/uk_news/magazine/4630243.stm">summarized in this piece from the BBC.</a><br />
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Furthermore, most U.S. cases have held that a plaintiff cannot make an end-run around the rule that "you can't defame the dead" simply by restyling her claim as one for invasion of privacy, intentional infliction of emotional distress (upon the surviving family members), or injurious falsehood.<br />
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Even though the law is uncommonly clear on this point, that hasn't stopped an occasional outraged relative of the dearly departed from suing. For example, in1981, Charles Higham wrote a biography of Errol Flynn in which he charged that the actor had been a Nazi spy. Flynn's daughters sued for defamation and invasion of privacy -- unsuccessfully. In upholding the dismissal of the case, a California appeals court reaffirmed that ''defamation of a deceased person does not give rise to a civil right of action at common law in favor of the surviving spouse, family or relatives who are not themselves defamed.'' A copy of the decision is <a href="http://www.lawlink.com/research/caselevel3/60321">available here.</a><br />
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At one time, the law was not so clear. See, for example, this <a href="http://www.time.com/time/magazine/article/0,9171,753187,00.html">1931 article from <i>Time</i> magazine</a> And there are still a few disturbing wrinkles. Judge Sack notes that several states, including Texas and Utah, have statutes that purport to define libel to include defaming the dead. But, <a href="http://scholar.google.com/scholar_case?case=18192896868851857805&hl=en&as_sdt=2&as_vis=1&oi=scholarr">citing this Texas case</a>, he concludes that, even in those jurisdictions:<br />
<blockquote>successful defamation suits based on the defamation of the dead where there is no implied defamation of the living are apparently non-existent. </blockquote><a href="http://www.rightsofwriters.com/2010/12/sounding-trumpet-for-fair-use-quotation.html">Robert Spoo</a> recently brought to my attention that there are also a few states, that continue to have <a href="http://www.firstamendmentcenter.org/analysis.aspx?id=17263">antiquated criminal statutes</a> on the books, some of which purport to prohibit defamation of both the living and the dead. In 1998, a federal court <a href="http://www.rcfp.org/newsitems/index.php?i=1947">struck down one such law in Nevada</a> as unconstitutional.<br />
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Doubtless there are abuses -- instances where writers make outrageous statements about the dead that they know to be false. In response, a few commentators, including Raymond Iryami in <a href="http://law2.fordham.edu/publications/articles/200flspub6638.pdf">"Give the Dead Their Day in Court"</a>, Lisa Brown in <a href="https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi&srcid=3B15&doctype=cite&docid=67+Tex.+L.+Rev.+1525&key=081c88575de8de53a711417d22aaf073">"Dead But Not Forgotten"</a> (behind pay wall) and amazingly enough, <a href="http://en.wikipedia.org/wiki/John_Dean">John Dean</a>, have suggested <a href="http://writ.news.findlaw.com/dean/20040312.html">that enacting a civil remedy for disparagement of the dead might worth considering</a>. Indeed, the idea is not as far-fetched as I, for one, might wish it were. Remarkably, in 1986, the New York State Senate <a href="http://www.nytimes.com/1986/07/01/nyregion/sponsor-in-senate-withdraws-a-bill-on-libeling-dead.html">passed such a bill</a>, but it died a merciful death without being voted upon in the Assembly. My own view is that such a law would be a staggering blow to biographers, historians, and journalists.<br />
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So what might writers take away from all this?<br />
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1. The risks of a judgment being ultimately entered against a writer in the United States for libeling the dead are very close to zero.<br />
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2. The risks of being sued for libeling the dead (or on some end-run cause of action) are very low, but not zero. A defendant writer should ultimately win, but she might have to incur attorneys' fees in doing so. <br />
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3. If you're writing unflatteringly about the dead in a work that will undergo a legal review by a book or magazine publisher, there is especially little to sweat. The legal reviewer will presumably help you further minimize any risks and, if there were ever a suit, the publisher's lawyers would have the tools available to wage an exceedingly strong defense.<br />
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4. As a practical matter, the deader the dead, the more improbable it is that there would ever be even a nuisance claim. The few claims that have been brought tend to be by family members of the recently deceased (e.g., where the family contests a published report that a death was a suicide).<br />
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5. As the quotation above from Judge Sack's book implies, there <i>can</i> be liability when a defamatory statement about the dead also reflects negatively on the living. Take this statement: "Before the cold-blooded killer, Fowler, was shot dead while fleeing from the police, he hid out for three days in his brother's apartment" (implying that the brother was an aider and abettor).<br />
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6. Truth, of course, is the ultimate defense to a libel claim. So make sure you have your facts straight, whether you are writing about the living or the dead. That said, there are times when fiction writers may artfully -- and lawfully -- "lie" about deceased historical figures that they have inserted into their novels or short stories. (See this <a href="http://www.rightsofwriters.com/2010/12/could-i-be-liable-for-libel-in-fiction.html">earlier post on libel in fiction</a> and this <a href="http://blog.writersdigest.com/qq/How+Do+You+Represent+The+Deceased+In+Fiction.aspx">cautionary post by a Writer's Digest blogger.</a>) And that's just one of the reasons a "libeling-the-dead" statute is very bad idea.Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com12tag:blogger.com,1999:blog-3094213262059652791.post-55583894030605099092011-01-21T21:46:00.002-05:002011-01-21T21:55:24.920-05:00What Are the Risks of Misquoting an Interviewee?"Quotation, n: The act of repeating erroneously the words of another." (Ambrose Bierce, <i>The Devil's Dictionary</i>)<br />
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Unless a writer tape records her interviews, has <a href="http://asne.org/kiosk/editor/98.sept/rhoades1.htm">mastered shorthand</a>, or conducts her interviews by email, the questions and answers she publishes will rarely be a word-for-word transcription of what the interviewee said. A writer should, of course, do her level best to record the interviewee's actual words. However, unless an interview is unusually adversarial, the interviewee will seldom complain about minor disparities in wording as long as you have accurately reported the facts and captured the essence, tone, and spirit of what the interviewee had to say. <br />
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Interviews give rise to some interesting issues of journalistic ethics: Should you correct an interviewee's, you know, verbal tics and grammatical mistakes? Should you publish a verbatim acount of your interviewee's distinctive dialect or convert his words into standard English? The <a href="http://www.ap.org/newsvalues/index.html">Associated Press says "no":</a><br />
<blockquote>We do not alter quotations, even to correct grammatical errors or word usage. If a quotation is flawed because of grammar or lack of clarity, the writer must be able to paraphrase in a way that is completely true to the original quote. If a quote's meaning is too murky to be paraphrased accurately, it should not be used.</blockquote>Journalists may worry about such things, but they are seldom, if ever, the stuff of lawsuits.<br />
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But beware of the man who claims that he has been misquoted in a way that makes him look bad -- unprofessional, bigoted, ignorant, malevolent, crooked, violent -- whereas an accurate quotation would have made him look like the upstanding citizen he believes himself to be. And be aware that (inaccurately) putting words into your interviewee's mouth that diminish his reputation and expose him to "hatred, contempt, or aversion" can, in fact, be actionable.<br />
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<div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;">As the Supreme Court explained in the the famous (to libel lawyers) case of <a href="http://www.law.cornell.edu/supct/html/89-1799.ZO.html"><i>Masson v. New Yorker Magazine</i></a>:<br />
<blockquote>A fabricated quotation may injure reputation in at least two senses, either giving rise to a conceivable claim of defamation. First, the quotation might injure because it attributes an untrue factual assertion to the speaker. An example would be a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not.</blockquote><blockquote>Second, regardless of the truth or falsity of the factual matters asserted within the quoted statement, the attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold.</blockquote><a href="http://en.wikipedia.org/wiki/Jeffrey_Moussaieff_Masson">Jeffrey Masson</a> alleged that he had been the victim of the latter form of misattribution. Masson is a noted psychoanalyst who was at one time the Project Director of the <a href="http://en.wikipedia.org/wiki/Sigmund_Freud_Archives">Sigmund Freud Archives</a>. In 1982, <a href="http://en.wikipedia.org/wiki/Janet_Malcolm">Janet Malcolm</a> interviewed him for a lengthy <i>New Yorker</i> profile, which was later expanded into a book, entitled <a href="http://www.amazon.com/Freud-Archives-Review-Books-Classics/dp/159017027X/ref=sr_1_2?ie=UTF8&s=books&qid=1295640135&sr=8-2"><i>In the Freud Archives</i></a>. One reviewer said that the book portrayed Masson "<span class="Apple-style-span" style="font-family: inherit;">as a grandiose egotist — mean-spirited, self-serving, full of braggadocio, impossibly arrogant and, in the end, a self-destructive fool." Masson read it that way, too, and sued for defamation, primarily complaining that Malcolm</span> invented a series of quotes that made him look unprofessional. Malcolm denied that she had done anything of the kind. <a href="http://query.nytimes.com/gst/fullpage.html?res=990CEEDF153AF933A0575BC0A963958260/">Here, <i>The New York Times</i> identifies</a> the most famous phrases that Masson challenged:</div><blockquote>In three of the five disputed quotations in the two-part, 45,500-word article, Ms. Malcolm wrote that Mr. Masson had said he hoped to turn Freud's home into "a place of sex, women, fun"; that two prominent psychiatrists considered him "an intellectual gigolo," and that he himself would one day be considered the "greatest analyst who ever lived."</blockquote>Malcolm had tape recorded some of her interviews. But she testified that she had taken handwritten notes of other conversations, which she believed that she had discarded after typing them up; it was during these unrecorded conversations that the challenged statements were made (according to Malcolm) or not made (according to Masson).<br />
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The case went all the way to the U.S. Supreme Court and back down again to trial. In all, there were five quotations at issue; a jury ultimately found that some of the quotes were substantially accurate, some were not, but none of the erroneous quotations was written with reckless disregard for the truth, the minimum level of fault that Masson, as a public figure, had to prove to establish liability. <br />
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So Masson lost. (<a href="http://caselaw.findlaw.com/us-9th-circuit/1264860.html">Here is the decision in the final appeal to the Ninth Circuit Court of Appeals</a>.) But the case nonetheless continues to stand for the proposition that an inaccurate quotation <i>can</i> give rise to a viable defamation claim. Moreover, if Masson had been a private figure instead of a public figure, he presumably would not have had to show that Malcolm knowingly or recklessly misquoted him; mere negligent misquotation of a private figure (provided, again, that the misquotation induces an unsavory opinion of the misquotee) might be enough in some states to give rise to a viable claim.<br />
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So what can a writer do to avoid a Masson/Malcolm-style smackdown?<br />
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1. As previously stated, do your utmost to get the quotations right. The more inflammatory the quote, the more careful you should be.<br />
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2. Consider tape recording interviews, especially if they are likely to be contentious. But, remember, in many states, consent of <i>both</i> parties is required to tape a telephone conversation. (The Reporter's Committee for Freedom of the Press has published a helpful <a href="http://www.rcfp.org/taping/">state-by-state guide on the legality of taping telephone interviews</a>.) If consent to taping is required, it is a good idea to get the consent itself on tape.<br />
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3. If you recall the gist of a statement, but are not confident about the wording, don't put the words inside quotation marks. Report it for what it is: your paraphrase of what was said.<br />
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4. If you haven't taped an interview, and if you aren't certain that you have precisely captured the interviewee's words in your notes, consider inviting the interviewee to review the quotes before publication. Many professional journalists are loathe to take this step, however, because interviewees will too often disavow making (or want to change) the tactless statements that they actually made. If the interviewer then publishes the quotation as she originally heard it, the litigious interviewee may claim that the interviewer was on notice that the quotation was false.<br />
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5. Consider preserving your interview tapes and notes for a substantial period after the interview is published. (In a later post, I will have some suggestions regarding how long writers should keep their contracts and source materials.) A counter-argument can be made in favor of discarding notes; working journalists are rightly concerned that their notes could be subpoenaed, making them involuntary witnesses (a la Judith Miller) or eating up their time and their employers' money fighting the subpoenas. However, this is seldom a concern for writers who are not covering hot news or doing investigative work. In the end, there is no always-right answer to question: should I preserve or should I discard? But, on balance, I would generally keep my notes. (Janet Malcolm is evidently a preserver rather than a discarder; as <a href="http://query.nytimes.com/gst/fullpage.html?res=990CEEDF153AF933A0575BC0A963958260/">reported in the Times article above</a>, her two year-old granddaughter reportedly stumbled upon Malcolm's lost notebook many months after the <i>Masson</i> trial was over.)<br />
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6. Reconstruction of quotations from long ago can be hazardous, too. Memoirists and autobiographers frequently recreate conversations that occurred years earlier. But, if their memories are at all like mine, they could, at best, only hope to recall the gist of what was said. Readers understand that the quotation marks around decades-old dialog are a literary convention, not the literal truth. But that may not stop a quotee from claiming he had been Massonized if he believes that gist is inaccurate and disparages him.<br />
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7. Take to heart the moral of <a href="http://www.huffingtonpost.com/2010/08/24/defamation-case-against-a_n_693087.html">this case against ABC</a>: don't take quotations out of context.<br />
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8. Consider whether an inflammatory quotation could be effective, even without naming the speaker: e.g., "'Muslims aren't welcome in this neighborhood,' a local grocer said."<br />
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Ultimately, there is no call for paranoia. Occasional inaccuracies in quotations are inevitable (see this <a href="http://en.wikipedia.org/wiki/List_of_misquotations">long list of famous, but inaccurate, quotations -- some of them deliberate misquotations)</a>, but the vast, vast majority do not materially distort the <i>essence</i> of what the speaker said -- and therefore should not give rise to legal liability.Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com3tag:blogger.com,1999:blog-3094213262059652791.post-33506371316965536422011-01-15T00:05:00.008-05:002011-07-05T20:52:54.046-04:00Can You Tell Your Own True Story Even If It Impinges on the Privacy of Your Lovers, Friends, and Family?<span class="Apple-style-span" style="font-family: inherit;">Autobiographers and memoirists sometimes face thorny legal issues when they write about aspects of their own lives that are inseparably intertwined with the private lives of others. Can a woman truthfully describe the intimate details of her sex life if, in doing so, she identifies her partner and aspects of his life (adultery, promiscuity, kinkiness?) he would prefer to keep forever secret? Can a gay man write about his HIV-positive status if, in doing so, he effectively discloses that his partner is also infected with the virus? The answer is an unsatisfying: "Sometimes -- provided it is done the right way."</span><br />
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<span class="Apple-style-span" style="font-family: inherit;"></span>Public disclosure of private facts is an aspect of the right of privacy that is actionable in some (but not all) states. While the prerequisites vary somewhat from jurisdiction to jurisdiction, a plaintiff typically must prove:<br />
<blockquote>(1) publicity was given to matters concerning the plaintiff's private life;</blockquote><blockquote><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span class="Apple-style-span" style="font-family: inherit;">(2) the matters made public would be highly offensive to a reasonable person of ordinary sensibilities; <u>and</u></span></div></blockquote><blockquote><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span class="Apple-style-span" style="font-family: inherit;">(3) the matters publicized were not newsworthy, i.e., not of legitimate public interest.</span></div></blockquote><span class="Apple-style-span" style="font-family: inherit;">The third element is often crucial to the defense of invasion of privacy lawsuits. Fortunately, the mainstream media have had considerable success in persuading courts to find that their disclosures of otherwise private facts are protected because they shed light on important aspects of the human condition. The courts are especially likely to cut authors and publishers some slack in accounts that touch on the private lives of public figures. But the courts have also often found that even disclosures of private facts about private figures qualify as newsworthy. Sometimes, however, newsworthiness is a close call. And, as University of Georgia law professor Sonja West explains in <a href="http://works.bepress.com/sonja_west/2/">this law review article entitled <i>The Story of Me</i></a>, the courts' focus on whether a disclosure of private facts is "newsworthy" is arguably misguided.</span><br />
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<span class="Apple-style-span" style="font-family: inherit;"></span><i><a href="http://scholar.google.com/scholar_case?case=10076300029003364829&hl=en&as_sdt=2&as_vis=1&oi=scholarr">Anonsen v. Donahue</a></i> is one of a few interesting cases that have taken a different approach. <span class="Apple-style-span" style="font-family: inherit;">The dispute arose out of an appearance by Miriam Booher on <i>The Phil Donahue Show</i> in </span><span class="Apple-style-span" style="font-family: inherit;">January 1989. During the course of the program, Booher disclosed that her husband had raped and impregnated Nancy Anonsen, her daughter from a past marriage, when Anonsen was 11 years old. Booher and her husband then adopted the baby boy born from the incestuous relationship. Prior to Booher's appearance on the show, the family had never reported the crime to the authorities or publicly disclosed the events.</span><br />
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<span class="Apple-style-span" style="font-family: inherit;"></span>As touched on in a <a href="http://www.rightsofwriters.com/2010/12/when-is-it-risky-to-write-that-someone.html">prior post</a>, a highly-charged statement of this sort potentially implicates two separate, but interrelated areas of the law. If the statement was false, Booher would have run the risk of a libel suit from her husband. On the other hand, if the statement was true, she ran the risk of a claim for public disclosure of private facts. <br />
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</span></div><div style="margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span class="Apple-style-span" style="font-family: inherit;">Anonsen and her son acknowledged that the statement was true; they </span>sued their mother/grandmother, Phil Donahue, and his production company for public disclosure of private facts. Anonsen and her son argued that, even though Booher did not mention their names on the show, by disclosing her own true name to a national television audience, Booher had inevitably revealed the family's nightmarish private tragedy to everyone who knew Booher's relationship to them.</div><br />
Analyzing the three elements of the claim under Texas law, the court had no problem concluding that the crimes of incest and rape are newsworthy matters of legitimate public interest, but, in the judge's view, that did not necessarily mean that the (albeit indirect) disclosure of the victims' identities was a matter of public interest. But, importantly, the court reasoned:<br />
<blockquote>We do not believe that the issue of newsworthiness of the parties' identities . . . is relevant to the ultimate inquiry before us: whether Booher had the right to reveal her own identity.</blockquote>Ultimately, the court concluded that:<br />
<blockquote>to allow a cause of action based upon Booher's truthful and undisguised account of her own and her family's experience is inconsistent with the first amendment. </blockquote>A Massachusetts court adopted the <i>Anonsen</i> approach, at least in part, in <a href="http://www.publishersweekly.com/pw/print/20040329/28335-memoir-lawsuit-a-victory-for-publishers-.html"><i>Bonome v. Kaysen</i></a>. Susana Kaysen, the author of <a href="http://www.amazon.com/Girl-Interrupted-Susanna-Kaysen/dp/0679746048/ref=sr_1_1?s=books&ie=UTF8&qid=1295064697&sr=1-1"><i>Girl Interrupted</i></a><span id="goog_467039340"></span><span id="goog_467039341"></span><a href="http://www.blogger.com/"></a>, also wrote a memoir about her post-teen life entitled <a href="http://www.amazon.com/Camera-My-Mother-Gave-Me/dp/0679763430/ref=sr_1_1?ie=UTF8&qid=1295061217&sr=8-1"><i>The Camera My Mother Gave Me</i></a> in which she recounted in intimate detail her then-live-in boyfriend's alleged abusive response to her refusal to have sex with him when she was suffering from a painful medical condition. Although he was not named in the book, the boyfriend sued for invasion of privacy, arguing that many people knew that he had been Kaysen's companion and understood that Kaysen was referring to him. The judge dismissed the claim, finding that the disclosures were a matter of legitimate public concern. But he also went on to say that:<br />
<blockquote>In this case, it is critical that Kaysen was not a disinterested third party telling Bonome’s personal story in order to develop the themes in her book. Rather, she is telling her own personal story-- which inextricably involves Bonome in an intimate way . . . . it is within the context of Bonome and Kaysen’s lives being inextricably bound together by their intimate relationship that the disclosures in this case must be viewed. Because the First Amendment protects Kaysen’s ability to contribute her own personal experiences to the public discourse on important and legitimate issues of public concern, disclosing Bonome’s involvement in those experiences is a necessary incident thereto.</blockquote>I cannot overemphasize that publishing private facts about others carries significant legal risks and must be done cautiously, if at all. Not only may there be a question as to whether another person's story is integral to your own -- an essential aspect of the courts' reasoning in <i>Anonsen </i>and <i>Kaysen.</i> But there is always the risk that the "dislosee" will contend that the disclosures about him/her are not only intimate, but false, as in this <a href="http://www.citmedialaw.org/threats/steinbuch-v-cutler#description">spicy yet disturbing case</a> involving the blogger Washingtonienne.<br />
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If you are publishing a tell-all memoir with a major publishing house or a tell-all article with a major magazine, chances are that somewhere along the line you will get advice from an in-house lawyer about how to reduce the legal risks. You can change names, change locations, change all sorts of identifying details, while keeping the core truth of your story intact. All of these precautions help to make the disclosee less identifiable. But all of these precautions cannot provide an absolute guarantee that a disclosee will not be able to argue successfully that he or she is inevitably identifiable by some people who new the author and her relationship to the disclosee.<br />
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The greatest risks are likely incurred by bloggers, Facebook posters, and other online self-publishers who nonchalantly publish the intimate details of their personal lives and those of their lovers and friends, without the benefit of any legal advice. Perhaps like Washingtonienne they take at least some precautions to conceal the identities of those they portray. But perhaps, like Washingtonienne's embarrassed lover, their lovers and friends will feel that not enough has been done to safeguard their secrets and protect their privacy. And it may be far more difficult for a private blogger (in contrast to a well-known author, like Kaysen, published by a powerful publisher, like Random House) to persuade a court that the private facts disclosed are matters of genuine public concern. If the court believes they are not, then the blogger's last, best hope is that the court may conclude, as in <i>Anonsen</i> and <i>Kaysen</i>, that an autobiographer has "a right to disclose her own intimate affairs." It's an appealing legal principle, a potentially important principle, but not one you should count on.<br />
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Postscript: this post is not, by any means, intended to discourage memoirists from practicing their craft. Remember, to be actionable, the disclosure must be of private facts that would be highly offensive to a reasonable person. Most memoirs don't venture into that territory. Moreover, book editors often tell their authors to write the truth and let the in-house lawyers figure out how the truth -- or at least most of it -- can be safely published.<br />
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</span></span>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com24tag:blogger.com,1999:blog-3094213262059652791.post-962083805870124172011-01-07T21:11:00.001-05:002011-01-07T21:14:11.117-05:00Can I Say My Thesis Was Not Previously Published?<a href="http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=114302">Kate Sutherland</a>, in a tweet today <a href="http://twitter.com/#!/lawandlit">@LawandLit</a>, brought my attention to this article about how <a href="http://www.insidehighered.com/blogs/the_education_of_oronte_churm/growing_concern_over_digital_thesis_deposit">the mandatory digital deposit of theses and dissertations</a> could threaten the prospects of creative writing students to find commercial print publishers for their novels and short story collections. It is a subspecies on the problem discussed in one of my earlier posts: <a href="http://www.rightsofwriters.com/search/label/First%20Publication%20Rights">"Can I Say My Story Was Not Previously Published"?</a> Oronte Churm quotes the director of the University of Michigan's MFA in writing program as saying:<br />
<blockquote>If all publishing ends up online, [and] there's only one medium, then archiving anything online means that it’s been published. A student who put a story in his thesis could not then sell it to an online magazine because what would be the point?</blockquote>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com7tag:blogger.com,1999:blog-3094213262059652791.post-88855189375902748622011-01-07T16:39:00.001-05:002011-03-17T10:59:14.878-04:00Who "Owns" an Interview?Writers and reporters conduct countless thousands of interviews every day. You might therefore think that it would be well-settled who owns the copyright in the transcriptions or recordings of those interviews, but there is a surprising disparity of opinion on the issue.<br />
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It <i>is</i> clear that most interviews are copyright-protected. <a href="http://www.rightsofwriters.com/2010/12/can-i-say-my-blog-is-copyrighted-basics.html">As described in this earlier post</a>, an expressive work is subject to copyright protection the moment that it is "fixed in any tangible medium of expression." An interview is "fixed" the instant it is, for example, tape recorded, videotaped, or set down by the interviewer in nearly verbatim notes. (There is the additional requirement that the fixation must be with the "authority" of the author, so a conversation surreptitiously recorded by one participant may not give rise to a copyrighted fixation.)<br />
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<span class="Apple-style-span" style="font-family: inherit;"><span class="Apple-style-span">But who is the copyright owner of the resulting give and take of questions and answers? The interviewer who formulates the questions? (That's basically where the Taggart v. WMAQ case came out</span><span class="Apple-style-span" style="color: #222222; line-height: 21px;">, as <a href="http://www.hspatentlaw.com/224901IIPjj01.pdf">summarized by the Henderson & Sturm law firm here.</a>) </span><span class="Apple-style-span">The interviewee who provides the answers, which typically form the core of what readers are really looking to read in interviews? (That seems to be what <a href="http://scholar.google.com/scholar_case?case=4220769071730456828&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><i>Suid v. Newsweek</i></a> implies.) </span></span> Or do the interviewee and interviewer create a kind of compilation in which each has an ownership interest in his or her separate contribution? (That appears to be the position taken in <a href="http://scholar.google.com/scholar_case?case=9551167075646527202&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><i>Quinto v. Legal Times</i></a> and in Section 317 of the <span class="Apple-style-span" style="color: #222222; line-height: 21px;"><a href="http://ipmall.info/hosted_resources/CopyrightCompendium/chapter_0300.asp"><i>Compendium II of the Copyright Office Practices</i></a></span><span class="Apple-style-span" style="color: #222222; line-height: 21px;">.) </span>Or is the interview a "joint work" where the interviewer and interviewee both have a copyright interest in both the questions and the answers. (That's the default assumption of leading copyright scholars <a href="http://en.wikipedia.org/wiki/William_F._Patry">William Patry</a><span class="Apple-style-span" style="color: #222222;"><span class="Apple-style-span" style="line-height: 21px;"> </span></span>and <a href="http://www.law.stanford.edu/directory/profile/25/Paul%20Goldstein/">Paul Goldstein</a>.) And, when a work is recorded, does some third party, such as a videographer own the recording? (Very often, yes; see <i>Taggart</i> again.) Finally, when the interview is conducted as part of the interviewer's or interviewee's employment, the employer(S) may own some or all of the interview as a work for hire.<br />
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All of this is seldom of any great practical consequence to writers. In the absence of some agreement to the contrary, if the interviewee knew he was being interviewed, a court would virtually always conclude that, at the very least, the interviewee had implicitly granted the interviewer a non-exclusive license to publish the resulting interview. If someone were to copy the interview, without permission, beyond the amount permitted by fair use, the interviewer and/or the interviewee would have a claim against the copier for infringement. (But see <i>Suid</i>.) And, if you are looking to obtain permission to quote from an interview (again, if you need to use more than fair use allows), then it usually makes sense to contact the interviewer, his or her publisher, or the media entity that employed the interviewer. I do not know of any instances where a interviewee has filed suit contending that the interviewer did not have authority to grant permission to quote from a published interview. (If any reader knows of such a case, please let me know.)<br />
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When a problem arises, it is generally <i>not</i> because of a dispute between interviewer and interviewee over copyright ownership, but because the interviewee purports to have placed some express restrictions on how the interview may be used. For example, in <i>Taggart</i>, the defendant television station videotaped a prison interview with a convicted sex offender on the subject of lax regulation at summer camps. The interviewee/plaintiff then claimed that he had requested that the tape not be used in any way in a broadcast. Fortunately for WMAQ, the court held that the interviewee had no copyright interest in his words, so there was no need to determine whether such a promise was made.<br />
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But interviewers should be aware that, if they make explicit promises to interviewees (e.g., with respect to how they will be portrayed or how the interviews will be used), the interviewers -- and/or their employers -- may be held liable for breach of contract (or on a related legal theory, known as promissory estoppel) if those promises are not kept. That is one of the lessons of <a href="http://www.law.cornell.edu/supct/search/display.html?terms=cohen&url=/supct/html/historics/USSC_CR_0501_0663_ZO.html"><i>Cohen v. Cowles Media</i></a>, in which a newspaper was ultimately held liable for failure to live up to a promise not to disclose the identity of a confidential news source.<br />
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So, writers, you almost certainly own some kind of copyright interest in the interviews you conduct -- unless it is a work for hire for an employer or contracting party. But ownership of the copyright is not the end of the story in terms of your control over how the interview is used. <br />
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In terms of best practices: it's wise, when taping your interviews, to get a statement from your interviewee <i>on the tape </i>that the interviewee is okay with your taping his or her words. If you and the interviewee have some special understanding with regard to copyright ownership (or other matters relating to the interview), it's best to memorialize that understanding beforehand on tape or in writing (if only in an exchange of emails). If you have promised something to your interviewee (e.g., the opportunity to review quotations before publication, or that something the interviewee said will be "off the record"), make sure you abide by the promise. <br />
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In later posts, I will return to three special problems related to interviews: the risks of inaccurate quotation; best practices for going on and off the record; and the risks of interviewing someone who has signed a confidentiality agreement, <a href="http://en.wikipedia.org/wiki/The_Insider_(film)">aka the Jeffrey Wigand problem.</a><br />
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<b>Postscript: </b> Bob Tarantino of the Heenan Blaikie firm in Toronto has written a <a href="http://www.entertainmentmedialawsignal.com/2011/02/articles/copyright/question-and-answer-who-owns-the-copyright-in-an-interview/">good piece on this issue under Canadian law</a> and reaches a somewhat different (or, at least, more definite) conclusion than the U.S. cases provide.Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com31tag:blogger.com,1999:blog-3094213262059652791.post-71079706280498237092011-01-01T12:52:00.003-05:002011-01-02T15:38:42.445-05:00Works Going Into the Public Domain (in Some Countries) in 2011The first tweet of the New Year from the always-interesting <a href="http://boholawyer.tumblr.com/">Boho Lawyer</a> drew my attention to the fact that January 1 was <a href="http://www.law.duke.edu/cspd/publicdomainday">Public Domain Day</a>. Alas, President Obama is not issuing a proclamation to celebrate the occasion. Public Domain Day is the the brainchild of Duke University's <a href="http://www.law.duke.edu/cspd/index">Center for the Study of the Public Domain</a>. There is a lot of interesting material of their site, including <a href="http://publicdomainday.org/node/37/">a list of prominent authors, some of whose important works are entering the public domain today in <i>some</i> jurisdictions.</a> The <a href="http://publicdomainday.org/disclaimer">caveats</a> are fascinating to read, illustrating, in the words of the Center, "how fiendishly complex copyright laws can be."<br />
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Key point: thanks the the <a href="http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act">Sonny Bono Copyright Term Extension Act</a>, no works will be newly entering the public domain in the United States until 2019.Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com0tag:blogger.com,1999:blog-3094213262059652791.post-28476793062788571242010-12-31T11:00:00.003-05:002015-11-25T11:41:54.970-05:0044 Places Where Writers (and Other Creative People) Can Obtain Free or Low-Cost Legal Help<a href="http://www.law-arts.com/">Lawyers for the Creative Arts</a> ("LCA") in Chicago maintains this <a href="http://law-arts.org/documents/MicrosoftWord-NATIONALVOLUNTEERLAWYERSFORTHEARTSupdated1.25.12_000.pdf">list of 36 other organizations</a> throughout the United States (and one in Canada) that provide legal information to writers and artists and, in some instances, free or low-cost legal representation to individuals and organizations that meet their qualifying criteria. I know the good work that <a href="https://vlany.org/">Volunteer Lawyers for the Arts in New York</a> has done (it's on LCA's list) and have worked with them from time to time. I am not by any means familiar with all of the organizations on the LCA list, but they are likely worth exploring.<br />
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Harvard University's Berkman Center has launched an <a href="http://www.omln.org/lawyers">Online Media Legal Network</a>, described as "a network of law firms, law school clinics, and individual lawyers across the United States who are interested in assisting online journalism ventures and other digital media creators address their legal needs." Some may provide free or reduced fee assistance.<br />
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Membership organizations such as <a href="http://www.asja.org/">The American Society of Journalists and Authors</a>, <a href="http://www.authorsguild.org/">The Author's Guild</a>, and the <a href="http://www.nwu.org/">National Writers Union</a> offer some useful legal information to website visitors and many more benefits, including various legal services, to those who become members. There are some eligibility requirements for membership.<br />
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A more specialized resource is the <a href="http://www.rcfp.org/index.php">Reporters Committee for the Freedom of the Press</a> aimed, as the name would suggest, at journalists. The RCFP maintains a legal defense hotline for professional reporters and media lawyers dealing with legal emergencies at 800-336-4243. (Their services are not directed toward literary writers.)<br />
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Two other organizations that do much good work for writers are <a href="http://www.pw.org/">Poets & Writers, Inc.</a> and <a href="http://www.pen.org/">PEN American Center</a>, albeit I frankly do not know whether they provide referrals for volunteer legal services.<br />
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If you know of other organizations that belong on this list, please post a comment to let me know.<br />
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Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com5tag:blogger.com,1999:blog-3094213262059652791.post-72140495094261444542010-12-30T17:17:00.004-05:002010-12-31T17:30:26.107-05:00When Is It Risky To Write That Someone Is "Gay"?There are two starkly different varieties of lawsuits that have arisen from statements that someone is gay: libel cases in which the statement is alleged to be <i>false</i>; and privacy cases in which the statement is acknowledged to be <i>true</i>. Both types of claims may become rarer as a result of America's changing values and changing laws.<br />
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</div><div>As to libel claims, there is an argument (indeed, a persuasive one, in my view) that it should no longer be regarded as libelous to call someone gay, even if the statement turns out to be false. Libel requires a "false and defamatory statement of fact," which is typically defined as a statement that "tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace" among right thinking people. Not only is it indisputable that the opprobrium formerly associated with homosexuality has diminished, but two major legal developments have taken place in recent years. First, in 2003, the Supreme Court ruled in <a href="http://www.law.cornell.edu/supct/html/02-102.ZO.html"><i>Lawrence v. Texas</i></a> that laws criminalizing private, consensual same-sex sexual activity are unconstitutional. Second, at least <a href="http://www.hrc.org/issues/4844.htm">twenty states</a> and the District of Columbia have<span class="Apple-style-span" style="font-family: inherit;"> outlawed employment discrimination against persons based on their sexual orientation, not to mention those states that have recognized same-sex marriages.</span></div><div><br />
</div><div>In the midst of this changing legal and social climate, it's not surprising that a federal court in Massachusetts stated as early as 2004 that, under Massachusetts Law, <a href="http://scholar.google.com/scholar_case?case=11925556543524775847&hl=en&as_sdt=2&as_vis=1&oi=scholarr">a false imputation of homosexuality was no longer defamatory</a>. And, earlier this year <a href="http://lawyersusaonline.com/wp-files/pdfs-2/murphy-v-millennium-radio-group.pdf">a New Jersey federal court reached the same conclusion</a>, finding, in a case involving two radio "shock jocks," that a statement arguably implying that someone is a homosexual is no longer capable of defamatory meaning under New Jersey law. </div><div><br />
</div><div>Regrettably, it is by no means clear that other courts will rapidly fall in line; indeed, these cases may not be the last words on the law in Massachusetts and New Jersey. In fact, earlier this year, a federal court in Texas reached a conclusion opposite to that of the New Jersey court, in rather similar circumstances, holding that a radio personality's statement that an airport security guard was "gay," gave rise to a cause of action because "the imputation of homosexuality might, as a matter of law, expose a person to public hatred, contempt, or ridicule." The Texas decision is reported <a href="http://www.courthousenews.com/2010/02/22/rickey%20smiley.pdf">here.</a><br />
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While the legal <a href="http://abcnews.go.com/US/story?id=90923&page=1">times may be a-changin'</a>, it is still far <a href="http://www.slate.com/id/2212339/">too early to conclude that they have, in fact, reliably changed</a><a href="http://www.slate.com/id/2212339/">.</a> So, as a writer, you should be aware that if you publish a statement that an identifiable living person is gay, you could still be held liable for it, if you turn out to be wrong. (Provided, of course, that the plaintiff can prove <a href="http://www.citmedialaw.org/legal-guide/defamation">all of the other elements of a defamation claim.</a>)<br />
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But what about the flip side? Can there be liability for publishing a true statement that someone is gay when that fact is not already generally known?<br />
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Many -- but not all -- states recognize a legal cause of action for "public disclosure of private facts." A plaintiff in a "private facts" case must prove that the defendant published highly personal information about plaintiff's <span class="Apple-style-span" style="border-collapse: collapse; color: #383530;">life that has not previously been publicly revealed, that is not of legitimate public interest, and the disclosure of </span><span class="Apple-style-span" style="border-collapse: collapse; color: #383530;">of which would be offensive to a reasonable person. </span>A terrific <a href="http://www.citmedialaw.org/legal-guide/publication-private-facts">short summary of the law pertaining to public disclosure of private facts</a> is available on the outstanding <a href="http://www.citmedialaw.org/">Citizen Media Law Project site.</a><br />
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<a href="http://www.citmedialaw.org/"></a>The <a href="http://www.lawlink.com/research/caselevel3/60788">most famous lawsuit involving "outing</a>" was brought by ex-Marine Oliver Sipple, the hero who intervened to save President Ford's life, when Sara Jane Moore attempted to assassinate him in 1975. Subsequent press coverage of the assassination attempt, including articles in the <i>San Francisco Chronicle,</i> reported that Sipple had been a campaign worker for Harvey Milk and a figure in San Francisco's gay community. Sipple was distressed by the coverage of his personal life, in part because he had never disclosed his sexual orientation to<span class="Apple-style-span" style="font-family: inherit;"> h<span class="Apple-style-span" style="border-collapse: collapse; color: #333333;">is parents, brothers, or sisters, who learned about it for the first time from the news accounts. But Sipple lost his case because the fact that he was gay was not deemed "private," given that his sexual orientation and gay rights activism were already known "to hundreds of people in a variety of cities." Moreover, his personal life was "newsworthy" because, by his actions in saving the President's life, he had become -- albeit involuntarily -- a public figure. The same newsworthiness arguments might conceivably lead to a similar result in a case of outing a closeted elected official who has hypocritically railed and voted against gay rights.</span></span><br />
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<span class="Apple-style-span" style="font-family: inherit;"><span class="Apple-style-span" style="border-collapse: collapse; color: #333333;"></span></span><span class="Apple-style-span" style="border-collapse: collapse; color: #333333;">But change the facts a bit and you could easily get a different outcome. Assume that the person being outed is not a public figure. And assume further that only a relatively small number of people were aware of his or her sexual orientation. In that circumstance, the outed person might have a claim for public disclosure of private facts. For example, in </span><span class="Apple-style-span" style="border-collapse: collapse; color: #333333;"><a href="http://scholar.google.com/scholar_case?case=1805360241760750188&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><i>Diaz v. Oakland Tribune</i></a></span><span class="Apple-style-span" style="border-collapse: collapse; color: #333333;">, a California court found that a student political leader could maintain a claim for public disclosure of private facts against a newspaper and a columnist for reporting that she had undergone a sex change operation -- a fact that was previously known only to her immediate family and closest friends. </span><br />
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<span class="Apple-style-span" style="color: #333333;"><span class="Apple-style-span" style="border-collapse: collapse;">By analogy to the Massachusetts and New Jersey libel cases, it could be argued that the waning stigma associated with homosexuality in 2011 makes it less likely that a truthful statement that someone is gay would be deemed highly offensive to a reasonable person, even if he or she has not widely disclosed his or her sexual orientation. That said, it can be difficult to see the ethical justification for publicizing the sexual orientation of a non-newsworthy, private figure who has not openly acknowledged it himself/herself, particularly when so many young people struggle mightily with the question of whether and how to make the disclosure to their friends and family. I realize this response is, to some degree, inconsistent with my view of the private figure libel cases. Maybe it's because reported instances of private figure outing often seem to arise in the context of alleged teen bullying, as in this </span></span><a href="http://www.nydailynews.com/news/ny_crime/2010/09/29/2010-09-29_rutgers_freshmen_busted_for_spying_on_fellow_students_online_sex_session_officia.html">haunting case</a>, rather than in the context of well-intentioned journalism.<br />
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<span class="Apple-style-span" style="color: #333333;">So, writers, if you are going to publish a statement that someone is gay, make very sure you are right, and, make very sure that the person has already publicly disclosed his or her sexual identity or that there is a compelling public interest in doing so.</span><br />
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<span class="Apple-style-span" style="color: #333333;">Difficult questions arise in the context of memoirs, when telling your own story truthfully sometimes requires disclosing intimate facts about those you are close to. There are some important cases that deal with this dilemma, and some courts have cut writers some slack -- a subject to which I will return in a later post.</span><br />
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<span class="Apple-style-span" style="color: #333333;">Postscript: Of course, writers should not feel legally inhibited about referring to openly gay public figures as gay. And, of course, in openly gay communities, and in the </span><span class="Apple-style-span" style="color: #333333;"><a href="http://en.wikipedia.org/wiki/List_of_LGBT_periodicals">publications that cover them</a></span><span class="Apple-style-span" style="color: #333333;">, discussion of non-public-figures' sexual orientation is entirely commonplace. In communities where people freely and frankly make known their own sexual orientations, the public discussion of sexual identity is unlikely to offend and unlikely to give rise to legal disputes.</span><br />
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</div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com0tag:blogger.com,1999:blog-3094213262059652791.post-33583234797932031422010-12-28T15:36:00.009-05:002010-12-31T17:31:28.556-05:00Should Congress Extend Copyright Protection to Fashion Designs?While this blog focuses primarily on writing and writers, I do take <a href="http://www.rightsofwriters.com/2010/12/copyleft-in-19th-century-germany-did.html">an occasional frolic and detour</a> into the public policies underlying copyright and copyright's effect on creative artists in other fields. In this regard, you may have <a href="http://www.crainsnewyork.com/article/20100806/SMALLBIZ/100809868#">read</a> that Senator Schumer and others have introduced legislation that would provide a new three-year term of copyright protection to fashion designs. The text of the bill, known as the Innovative Design Protection and Piracy Prevention Act, is reproduced <a href="http://www.counterfeitchic.com/Documents/IDPPPA_as_introduced_8-5-10.pdf">here</a>. The Judiciary Committee <a href="http://nymag.com/daily/fashion/2010/12/copyright_protection_for_fashi.html">unanimously approved</a> the bill earlier this month.<br />
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</div><div>Clothing designs have never before been the subject of copyright protection in the United States (although fabric prints -- of sufficient originality -- can be). A few years ago, <a href="http://en.wikipedia.org/wiki/Tyler_Cowen">Tyler Cowen</a>, the always-interesting economics blogger, ran a fascinating post on <a href="http://www.marginalrevolution.com/marginalrevolution/2006/02/how_does_the_fa.html">how the fashion industry works without copyright</a> and and wondered aloud "why the absence of IP protection has led to (apparently) acceptable results." Worth revisiting in light of the proposed new law.<br />
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And <a href="http://www.lexisnexis.com/Community/copyright-trademarklaw/blogs/fashionindustrylaw/archive/2010/08/25/the-innovative-design-protection-and-piracy-prevention-act-fashion-industry-friend-or-faux.aspx">here</a> is an informative article on the history of the Innovative Design Protection and Piracy Prevention Act (from Louis Ederer and Maxwell Preston).</div>Mark Fowlerhttp://www.blogger.com/profile/07032057917942464490noreply@blogger.com2