Yay, Taylor Swift! Boo, Taylor Swift! (On the Value of Artist’s Works)
UPDATE: Ms. Swift’s management companies have changed the photography contract significantly. It’s a huge step in the right direction and I applaud them for it. See this article for details:
That being said, this argument still applies to venue and event photography generally, so I’m keeping it up.
(NOTE: This article contains quoted statements, allegations, and documents made and/or provided by third parties. While to the author’s knowledge and belief everything in it is reasonably accurate, no representation is made as to the validity of facts and allegations set forth herein other than those constituting the opinions and assertions of the author. While the author is an attorney, nothing herein should be viewed as legal advice and the reader is advised to obtain their own licensed and qualified counsel before making legal decisions.)
It has recently been in the news that extraordinarily successful recording artist Taylor Swift called out Apple Music for planning to give away access to trial subscribers to free for three months… and not to pay the artists whose music they’d be using for customer acquisition any royalties on what trial members listened to during the trial. Here’s a link to her original open letter to Apple:
http://taylorswift.tumblr.com/post/122071902085/to-apple-love-taylor
For this, she is to be wholeheartedly commended. While she is, as noted, an extraordinarily successful recording artist, she’s still just one person, and she has to answer to her label, etc, for potentially angering the most influential single entity in music distribution today. This action was not without significant risk on her part. But she did it, and she won: Apple soon announced that it would pay artists royalties as appropriate. So everybody was happy.
*cue ominous music*
Until…
Blame The Right Party: A Response to Ursula K. Le Guin on Amazon
Famed writer Ursula K. Le Guin published an essay on Book View Cafe called “Up the Amazon with the BS Machine.” ‘BS’ in this case stands for Best Seller, although I think that if it’s not also a clever play on the more typical meaning of “BS,” it should be. Her basic argument is that Amazon is to blame for the currently dominant model of mainstream publishing, which is to throw a bunch of books at the wall and see which ones stick to the Bestseller list, or at least sell strongly in a relatively short time after publication. The ones that don’t are quickly abandoned, going out of print. (And, if the work of first-time authors, often effectively torpedoing that author’s career.) You can read her essay, which I quite liked, here:
http://bookviewcafe.com/blog/2015/06/01/up-the-amazon/
You can also see some discussion of the post on The Passive Voice:
http://www.thepassivevoice.com/06/2015/up-the-amazon-with-the-bs-machine/
While I agree with much of what Ms. Le Guin says (and would like to take this opportunity to thank her for the many wonderful books of hers I have enjoyed) I don’t quite understand why she thinks that Amazon’s model somehow encourages books to be abandoned. For many authors, Amazon is all about “the long tail.” Once published on Amazon, a book can stay there, if current trends continue, more or less forever. And it may find its audience months, or years, or theoretically even decades later. (Though obviously we don’t have decades of data on e-publishing.)
It is publishers who remove books from print. If I publish a book digitally, there it stays on Amazon until I take it down. If I publish one through CreateSpace, it will be available, in print, for either readers to buy directly or retailers to buy wholesale, until I take it down. Since reputable digital e-tailers don’t charge to make digital books available through their stores, there are very few reasons I can think of why any publisher would take a digital book “out of print.” And of the ones I can think of, exactly zero of them are in any way incentivized or encouraged by Amazon. If I’ve missed something, I would be glad to discuss it.
Leaving aside digital, the only way a book can go out of print is if the party responsible for printing it decides not to print any more copies. Since CreateSpace doesn’t do that (nor does Lightning Source or any of the other true Print On Demand providers) the concern only applies to traditional publishers. They have been (in)famous for playing games about when a book is or is not in print (and thus the rights might revert) for decades, although they certainly seem to have gotten worse about it in the relatively recent past. I respectfully suggest that if Ms. Le Guin is concerned with the current business model of traditional publishing – “print, push, punt,” to coin a phrase – she should address her concerns to them, not to Amazon.
A Tangent-Free Checklist For Electronically Copyrighting Ebooks.
NOTE: I am an attorney, but nothing in this article should be read as specific legal advice. While the information in this article is accurate to the best of the author’s knowledge and belief at the time of publication, laws and regulations change frequently and individual circumstances vary. Please consult an attorney licensed in your jurisdiction and familiar with the relevant law before making legal decisions.
There are many articles and books on how to file copyright registrations. However, most of them seem to go into a lot of unnecessary depth and/or off on extended explanatory or historical tangents. Which is understandable: Copyright law is pretty complicated, and it’s also very interesting to the sort of person who writes such books and articles. I am the king of unnecessary depth and going off on tangents, and I am casting no aspersions.
But, I thought it might be nice to have a really simple, streamlined checklist for copyrighting an e-book comprising original authorship. So here it is. If you follow these steps, you should be able to easily file a copyright registration for a single work of written fiction or nonfiction written solely by you.
Do not use this list for ANYTHING other than a single work of written fiction or nonfiction written solely by you! (Scripts, by the way, are not works of written fiction or nonfiction for purposes of the copyright law – they are “dramatic works.” If you’re registering a script, this list is not appropriate.) Also, if the work has previously been published in print or in some other work, you should not use this list.
All caveats herein notwithstanding, the Copyright Office’s website is reasonably easy to use, and a person of reasonable intelligence can most likely figure out how to register most kinds of works with the instructions on the site and possibly a little Googling. I am not trying to dissuade such persons. I am only saying that the second you diverge from the parameters I set forth, you can no longer just follow the steps below as I lay them out.
Okay, here we go!
In Which I Review My Own Book For Potential Legal Issues.
So, first, to get it over with: I wrote a book. It’s called My Mother Had Me Tested! and it’s a collection of funny mad science/geek-related short stories. Please have a look. If you think you might enjoy it, please read the free sample. If you still think you might enjoy it, please buy it. Here’s the link: http://amzn.com/B00WFV3YZU
Okay? Okay.
Now that the plug is done – and I would never suggest that you should buy my book to make the rest of this post easier to follow, no way, not for a minute – I’m going to go over some of the potential legal issues involved with the publication of my book, My Mother Had Me Tested!. (Okay, I’ll stop now. From here on out it’s just MMHMT, and no more links. Promise. 
)
Also, please keep in mind that nothing in this post is intended to be legal advice. I am reviewing my own work and pointing out generally interesting issues regarding it. My goal is not to provide specific answers to legal questions, but show examples of how one might approach these issues, and help you to be more aware of the potential for liability which your own creative endeavors might create. Always consult an attorney licensed in your jurisdiction and familiar with the relevant law *ahem* before making legal decisions.
Okay? Okay.
On with the review!
ISSUE ONE: COVER ELEMENTS
This one’s easy. I licensed the cover illustration from an online stock photo company called CanStockPhoto. They have a required copyright disclaimer: I included it. The font I used I found online and, after review, I decided that my usage of it for this purpose was acceptable. (Digital font files, by the way, can be copyrighted. Generally speaking, type itself cannot.) There’s no visible person, actual or not, so I don’t have to worry about a likeness release. (More about use of likeness below.) If there were, I’d need one or need to make sure the person I licensed the photo from had one. Stock Photo sites usually make this clear – if it’s marked “editorial,” you probably shouldn’t use it for commercial purposes. If it’s not, it’s probably released, but you should still check. If you commission a cover photo or illustration, make sure your artist provides a likeness release as well as a copyright license if necessary.
Finally, I made the cover myself, so I didn’t have to worry about the copyright on the assembled elements. If I’d had an artist do it for me, I’d have needed a copyright license, but I didn’t, so I didn’t. Next question!
Chicago Video Game Law Summit Comments
I had a great time at the first (and hopefully annual) Chicago Video Game Law Summit last Friday. I attended all the panels, as well as appearing on the Video Game Law and Business panel. My co-panelists Greg Boyd and Sam Glassenberg were both knowledgeable and a ton of fun, and special thanks to moderator Patrick Sweeney for providing refreshments appropriate to the gravity of the topic. (As ever, IP leads the law.)
One topic which was discussed during the dev panel I just wanted to make a small comment on. Companies have various approaches to “moonlighting,” or doing outside work while employed by them. (This can also apply, depending on the nature of the contract, to contracted development work. That’s yet another reason you need an attorney to review your dev contracts.) One panelist said that they believed it was easier to seek forgiveness than to ask permission – that is, they’d do the work, and if anything ever came of it, they’d explain it to their employers later.
In a practical sense, this isn’t the worst advice ever, since the odds are nothing much will come of it (sorry) but I have to disagree, and for two reasons:
- If your outside work – say, a mobile app you develop in your free time – takes off, there’s a very real risk that your employer will end up owning it, or at least having a claim over it which will cause no end of problems. However, that’s not the most important issue.
- If your employer finds out you’re violating an established policy, whether written or unwritten, regarding moonlighting, they may consider that a sign that you are not a trustworthy employee.
That second one is the real-world reason why I disagree with this advice. In general, don’t lie to employers when there’s a good chance you’ll get caught at it. (I mean, you shouldn’t lie to anybody for the most part, but there are degrees to everything.) They’ll very likely respond the way that regulators respond when they find out you failed to disclose something. Whatever you didn’t disclose may be totally innocuous, but their first response is, “What else aren’t you telling me?” It provides incentive to investigate further, and it indicates that you may not be happy in your position and/or that you are not serious about upholding the employer/employee relationship under the accepted terms.
This goes nowhere beneficial to your career.
If you want to do outside work while employed by another party, the thing to do is find out if there’s a policy, and follow it. If the policy doesn’t allow what you want to do, seek a waiver. Yes, waivers can and will be granted by most reasonable employers, even if the policy doesn’t specifically allow them, as long as your outside work doesn’t directly compete with or endanger the interests of the employer. If the policy doesn’t have waiver provisions, that is an opportunity for you to discuss ways to make your employer a better working environment and a more competitive seeker of candidates in the marketplace. Drafting and implementing a reasonable waiver procedure is an opportunity for developers and human resources to work together to make the employer a better place for everyone. And if they’re not interested in being reasonable, that is valuable information for you in considering the future path of your career.
What If I Don’t Charge?
One of the most common questions related to intellectual property is, “If I don’t charge for (some infringing use like copying characters or whatever) it’s okay, right?”
No, it is not okay.
Here’s an easy way to think about whether giving things away is going to help you when you’re using somebody else’s intellectual property:
Mostly, whether or not you made any money is relevant to calculating damages* and if you’re calculating damages it means YOU’VE ALREADY LOST THE CASE. So just ask yourself: “Do I want to be on the losing side of a case filed by a multbillion-dollar company?” Then proceed accordingly.
*It can be relevant to a Fair Use defense, but again, that’s a defense. If you’re using a defense, it means you have already conceded that your use was, absent the defense, infringing. That’s not a good place to be when, again, your opponent may be a multibillion-dollar company which spends more every year on coffee for lawyers than you’ll make in your whole life.
Copyright Versus Trademark Infringement
This question comes up all the time, and most (non-lawyer) people seem to use the terms almost interchangeably. Or, at the very least, they use “copyright infringement” when they mean “trademark infringement.” (The reverse is much rarer.)
Copyrights and trademarks, generally, have nothing to do with each other. It’s possible to infringe a trademark in a copyrighted artwork, and it’s possible to infringe a copyrighted artwork in the creation of a trademark, but either a use (of either) is infringing, or it isn’t. What exactly the use is is not relevant to whether a copyright or a trademark is being infringed. It might be relevant to Fair Use defenses or damages, but not to the question most people are worried about, which is “Can I do this without infringing someone else’s rights in the first place?”
Trademarks are used to identify the source of a good or service. If you buy something with a Mickey Mouse logo on it, what’s really protected is the consumer’s knowledge that that product either comes from Disney, or from a licensee of Disney.
Copyrights are used to protect artistic creation. You can’t draw your own picture of Mickey Mouse and do whatever you want with it, because Mickey Mouse as an artistic creation is copyrighted.
I used Der Maus as an example because he’s a really good one of how the two things can be intertwined. Eventually, theoretically, the copyright on Mickey Mouse will expire, and people will be able to use him as an element in artistic creations. (This is called “entering the public domain.”) However, as long as Disney uses him to identify the source of goods and services, the trademark will endure. (Trademarks don’t expire: they lapse when the seller of the good or service stops using them for a protracted period of time.)
Another really good example is Bram Stoker’s famous creation “Dracula.” Dracula, the novel, is out of copyright. Anybody who wants to can write stories about Dracula. (They can’t infringe on the copyrights of the later movies, though.) However, suppose that the estate had filed a trademark application for “Dracula” brand opera capes. As long as the estate sells (or licenses the mark for sales of) opera capes, nobody else can make Dracula opera capes.
“Aha!” I hear you cry. “What if I get the trademark ‘Dracula’ for publishing books? Then nobody else can publish Dracula books!” Clever! But no. The Trademark Office will not allow the registration of marks which are functional or merely descriptive. I’m allowed to write about Dracula. I need to be able to identify the character of the book. So such a trademark is both functional and descriptive, and would not be allowed.
Sound complicated? It is. That’s why intellectual property lawyers exist. But I hope that this brief explanation will help you understand the basic difference between the two and why the fact that there is no trademark doesn’t mean there is no copyright or vice versa.
Legal Achievements?
Okay, whoever invented the concept of “achievements” in computer games is probably an agent of the Adversary, because now they’re everywhere. I have been reviewing legal questions on Avvo.com and they have a point system which gives “contributor level” advancements. Yes, they’ve turned legal advice into a form of game system. It’s insidious, I tell you.
Anyway, if you’d like to see some of the answers that I post, just click on my Avvo badge (it’s on the right side of the screen) and it’ll take you to my Avvo profile, where you can see things I’ve posted by clicking on “View Contributions.” Trust me, it’s worth it. I’m a funny guy. I’m even a funny lawyer.
Hi there!
Hello, everybody. I bought myself a little Christmas present – for you! As soon as the holiday buzz subsides, I’ll be making posts on intellectual property law and other topics of interest to creative people. In other words, everybody!
Happy Holidays, and see you soon!
