Absolutely AWFul

As America celebrates Labor on Labor Day, I'm reminded of the little red hen (who did all the work), and all her neighbors in the barnyard who did not want to share in the effort, but expected to enjoy the fruits of her labor.
https://americanliterature.com/childrens-stories/the-little-red-hen

In copyright terms, who is the Pig, who the Cat, and who the Rat?

However, in copyright terms, the wheat-seed-to-loaf analogy doesn't hold, because bread is finite and perishable. Not so much with royal wedding cake.
https://www.washingtonpost.com/world/2021/07/30/royal-wedding-cake-auction/

But again, it is the original that is being auctioned. Apparently, the original copyright-infringing works might be untouchable.  One digresses.

Suppose the little red hen had take a photograph of her loaf of bread? That would be a copyrightable work of photographic art. "Barnyard Loaf" would not be in the public domain, even if Pig, Rat, and Cat saw the photo.  Little red hen, after all, created the bread, posed the bread, chose the angle from which to photograph the bread, chose the time of day and the light quality and the direction of the sun and the cast of shadows, and she also chose the type of camera equipment and the film (even if she used an iPhone).

She put a lot of work into her "Barnyard Loaf".

Suppose Cat asked for a limited license to copy the photograph for the reference of an unnamed artist for ephemeral use in "Farmyard Times" to illustrate an article on The Staff of Life.  The artist was Rat, and rat liked to take other artists' photographs, copy them multiple times to create a compilation work (which Rat called "transformative" and "original expression", and conveying a different meaning and social commentary or some such thing.... and was therefore "Fair Use".  Perhaps Rat gave the wholesome loaf a wash of orange, purple, yellow to make it Rat's.  Then, Rat made prints, and sold them, probably for a lot of money, because Rat was well known for that sort of thing and got away with it.

Legal bloggers Sarah Bro  and Ewa Wojciechowska for McDermott Will & Emery walk through the Second Circuit judges' thinking as they decided on a Fair Use case which inspired the above extended analogy.

https://www.ipupdate.com/2021/09/second-circuit-supreme-court-google-precedent-doesnt-alter-copyright-laws-fair-use-analysis/#page=1

For good measure, here is the Lexology link:

https://www.lexology.com/library/detail.aspx?g=206d9a8a-2b1a-4b83-ab6d-665525ea082d

It's interesting to know how judges weigh the four "fair use" factors, and why LGL prevailed against AWF.

Not in the least Awful, but much less clear (to this writer, who is not an online game enthusiast) is Lawrence Veregin's discussion about copyright in a deck of cards (a compilation), where perhaps every one of the sixty cards in the deck might individually be the copyrightable artwork of someone else. I would not include something I don't understand, but perhaps the discussion is of interest to alien romance followers of Jacqueline Lichtenberg's illuminating series on writing from the Tarot.

Original Link:

https://www.airdberlis.com/insights/blogs/thespotlight/post/ts-item/stacked-deck-a-claim-for-copyright-in-magic-the-gathering-deck

Lexology Link:

https://www.lexology.com/library/detail.aspx?g=4d0ed54b-112a-4a7c-80a5-25b8a19771db

Thinking of the copyright in a deck of cards reminds me of cover model CJ Hollenbach who once worked with a full pack of romance writers to create a deck of pink cards of romance-writing tips. One hopes that he copyrighted his compilation. He was/is a charming, creative, and hard working gymrat (self described).

Take a look: https://www.youtube.com/watch?v=yqa4YefzV4c

All the best

Rowena Cherry 

SPACE SNARK™ 

http://www.spacesnark.com/  http://www.rowenacherry.com

Of Art and Dirty Laundry

In times of inflation, art appreciates. When cash (or bonds, or equities) lose value, people spend. They buy art, precious metals, property, stamps, and alcohol.

By the way, the cost of an American "Forever" stamp is likely to go up from 55c to 58c on August 29th, 2021.

For those who still use postage stamps to pay bills and send thank-you notes, buying a stash of forever stamps before the increase represents at least a 6% saving.

 

The savvy shopper might also invest in Tide Pods as a store of value. Proctor and Gamble has announced that it will be raising prices in September on adult incontinence products, baby care, feminine care and more.

Art is more interesting from a copyright perspective, and also a literary point of view. Thrillers have been written about high value rare coins, high value rare stamps, lost and stolen masterpieces: Charade, The Saint in Palm Springs, The Rembrandt Affair, The Monuments Men, The Last Vermeer etc.

Works of art can be forged, stolen, traded, used as a medium for smuggling something even more valuable, or created or sold as a beard for money laundering. In some jurisdictions, such as the UK, the authorities are taking notice. The law office of DLA Piper have a great article on anti-money laundering and requirements for art market participants to register (in the UK.). 

https://www.dlapiper.com/en/us/insights/publications/2021/06/anti-money-laundering-registration-for-art-market-participants/

 

Legal bloggers Gabrielle C. Wilson,  Howard N. Spiegler, Lawrence M. Kaye and Yael M. Weitz of the law offices of Herrick Feinstein LLP have published a thorough and comprehensive "snapshot" of the state of art ownership and trading in the USA including a discussion of what happens if an unsuspecting person buys a work of art that later is revealed to have been stolen.

https://www.lexology.com/library/detail.aspx?g=21e56ac4-18a0-4e63-9910-698f1f88303a

One of the most interesting commentaries on the international art market comes from Art Law: Introduction, authored by Pierre Valentin of Constantine Cannon LLP. 

Quoting a small portion:

"Owing to changes in taste, high-end and, to a lesser extent, mid-market 20th-century and contemporary art and collectibles are doing well. Old masters and older furniture are not doing as well, unless they are exceptional examples."

And, on prices for exceptional works:

"...some commentators predict that within just a few years, an [iconic example of] artwork will sell for over US$1 billion. There is a relatively small pool of international billionaires and museums competing to acquire trophy pieces. Exceptional prices have been achieved at auction when only two such collectors or museums bid against one another."

Read more at: 

https://www.lexology.com/library/detail.aspx?g=955d99cb-b043-4092-a740-2d1ce670783a

Astonishingly, works of art costing $500,000 or less are considered "lower end".

If and when one buys a physical piece of art, one owns the canvas (or wood, or paper) and the paint (or whatever medium is applied to the surface), but one does not necessarily own the intellectual property. One cannot create prints or derivative works... except in the circumstance that the creator assigned the IP by written contract.

That principle also applies when one does not own an original copyrighted work at all, as is the case with Andy Warhol and his copying of a photograph of Prince. An Appeals court has ruled that it is not transformative, and not fair use to take someone else's portrait and merely change the color of the subject's skin.

https://news.artnet.com/art-world/andy-warhol-foundation-loses-lynn-goldsmith-copyright-lawsuit-1955399

Lee S. Brenner and Nicholas W. Jordan for Venable LLP, discuss the case, and the four important factors that determine whether or not a use is "fair".

https://www.closeupsblog.com/2021/05/second-circuit-finds-andy-warhols-use-of-prince-photograph-not-fair-use/#page=1

It would seem that the Warhol Estate's contention that giving a person a purple face transforms them from awkward to "iconic" is ... not convincing.

On the same topic, Clyde Shuman, blogging for Pearl Cohen Zedek Latzer Baratz explain that this case may have a lasting impact on the concept of "fair use" in American copyright law.

https://www.pearlcohen.com/second-circuit-andy-warhols-use-of-copyrighted-prince-photograph-not-fair-use/

I think that is good news for professional photographers, and also for artists in general.

Happy Fathers' Day.

All the best,

Rowena Cherry  

SPACE SNARK™ http://www.spacesnark.com/  http://www.rowenacherry.com

EPIC Award winner, Friend of ePublishing for Crazy Tuesday

Bad Faith

Assuming that the opposite of good faith is bad faith, the latter is this author's theme this time.  This week's news in the legal blogosphere has been thin for copyright-related matters, but the lack of good faith seems to be a common thread.

For a cautionary tale about crowdfunding, legal bloggers Kathleen K. Sheridan   and Melissa Landau Steinman  writing for the law firm Venable LLP point out three rules to live by, including that it is vital to keep promises made to investors.

All About Advertising Law source:
https://www.allaboutadvertisinglaw.com/2019/06/ftc-reminds-crowdfunders-deliver-on-your-promises-or-refund.html#page=1

Lexology source:
https://www.lexology.com/library/detail.aspx?g=57a69027-f21d-4761-b1bf-03d4d542ec7d&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2019-06-06&utm_term=

For advice for authors from Zach Obront about using Kickstarter to crowdfund your book launch, find tips here:
https://scribewriting.com/8-lessons-for-launching-your-book-with-a-kickstarter-and-raising-25000/

The balance of the good and the bad relate to the use of other people's photographs. In one case, the photographer prevailed against a commercial publisher, in the other case, the photographer appears to have gone after a safe-harbor-protected big fish, instead of the possibly culpable little fish.

Legal bloggers Mariah Volk and David Grossman writing for Loeb & Loeb LLP examine the case of Downs v Oath, and explain why Oath --which owns HuffPost-- is not legally responsible under the DMCA for publishing contributor-uploaded copies of copyrighted works that are uploaded in defiance of HuffPost's TOS..

See here:
https://www.loeb.com/en/insights/publications/2019/05/downs-v-oath

or here:
https://www.lexology.com/library/detail.aspx?g=48e2eee2-90ce-4a7c-ae7b-0872e5a84788

It took an appeal to the Fourth Circuit for the photographer to prevail against an alleged infringer, as legal blogger Jodi Benassi discussed for the law firm McDermott Will & Emery.

Here:
https://www.lexology.com/library/detail.aspx?g=730ef86e-69be-439f-b7f8-ded544a777cd

How someone can crop out the copyright wording from a photograph and then claim that they had a good faith belief that the photograph was not copyrighted is... beyond belief.

Jodi Benassi's breakdown of the four factors of  fair use and the "heart of the work" is especially worth reading.

All the best,
Rowena Cherry
SPACE SNARK™ http://www.spacesnark.com/  

Very Fine Print - Just Because It Says It's A "Reminder" Doesn't Mean It's Not a Pitch

"IMPORTANT - OPEN IMMEDIATELY"

Unfortunately, the American 1st Amendment allows anyone to make the misleading claim that their written communication is "Important", and to demand (using the imperative mood) that the recipient of the missive is hasty in reviewing the material.

If you review this hastily, you might not notice that this "Reminder" comes from somewhere called "Bureau", rather than from the USPTO ... which is an Office. You might also not notice that this "reminder" gives your ten-year anniversary date as a whole year (or more) earlier than the renewal is actually due.

Signing and returning this document will not actually renew your trademark, it will empower the helpful Bureau to renew your trademark on your behalf. The large block of fine print most professionally and politely discloses to the target reader that the "Bureau" is a private business, and also that they are not endorsed by the US government.

Government websites are usually .gov

Like this one:  https://www.uspto.gov/trademarks-getting-started/caution-misleading-notices

The USPTO warns about a great many purveyors of perhaps premature and unnecessary reminder services

and their list should be a go-to for authors and trademark owners.

Fascinatingly, the sample envelope that the USPTO displays purports to come from New York, but was postmarked from Santa Clara. It is also always interesting when a business sends mail from a seemingly prestigious (Park Avenue?) address, but encourages respondents to mail to a PO Box in a different zip code.

Rent at 230 Park Avenue appears to be as low as $33.80 per day.  That is, per individual, and for a multi-month lease.

That reminds this author of the interesting details of the work experience of an author-client-funded publisher's London-office-based representative, by Henry Coburn

http://www.theindependentpublishingmagazine.com/2018/07/the-radiance-of-banality-predatory-publishers-in-the-uk-part-one-henry-coburn-guest-post.html

http://www.theindependentpublishingmagazine.com/2018/07/the-radiance-of-banality-predatory-publishers-in-the-uk-part-two-henry-coburn-guest-post.html
 

Other helpful sites for aspiring authors:

https://www.sfwa.org/other-resources/for-authors/writer-beware/

https://writersweekly.com/whispers-and-warnings/09-13-2018
 
https://blog.reedsy.com/scams-and-publishing-companies-to-avoid/

https://justpublishingadvice.com/new-authors-beware-of-scam-agents-and-publishing-sharks/


The above are also jolly reading for those who enjoy the occasional, regrettable bout of schadenfreude.

Please respect the copyrights of helpful (and of unhelpful) sites. That may go doubly so for our European readers, given the passage of  Article 11 and Article 13, despite the efforts of the highly alarmed folks at EFF and others.... much to the glee of musicians in particular, who may now look forward to being paid when their work is monetized by others without their permission or fairly negotiated compensation.

https://thetrichordist.com/2018/09/13/totally-pissed-off-by-big-tech-spam-eu-gives-artists-a-copyright-victory/

Article 11 is described as a "link tax", which may mean that content creators' publishers may demand payment when major platforms quote and link to copyrighted works such as stories. There are exceptions for small and micro platforms. With luck, individual bloggers are considered small, and perhaps "fair use" rules will continue to apply, although what is "fair" may in time be more narrowly interpreted (as reportage, parody, review, scholarship.)

Article 13 holds platforms responsible if the platforms permit or turn a blind eye when users upload and share unlicensed, copyrighted work, which might mean music, music videos, photographs.

All the best,
Rowena Cherry

Fair Use

Last week was Fair Use Week. Not a few people used the occasion to suggest their own, somewhat wishful, opinions of what Fair Use is (or ought to be).

Much as I enjoy very long and convoluted sentences containing parenthetical clauses, I enjoy ellipses even more. Here is a simplified version of the Fair Use law:

".... the fair use of a copyrighted work ....for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright."

"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include--
1) the purpose and character of the use, including whether such use is of a commercial  nature or is for non-profit educational purposes;
2) the nature of the copyrighted work,
3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4) the effect of the use upon the potential market for or value of the copyrighted work."

The full wording can be found here:
https://www.copyright.gov/title17/92chap1.html#107

Other links to Government information about Fair Use are here ....    and here ....

The excellent, copyright-friendly blog "Illusion Of More"  critiqued a Fair Use Week video that may have taken the notion of allowable parody (as Fair Use) beyond what ought to be allowable.

To be Fair Use, a parody must "comment" on the original work. Using video clips of a copyrighted movie song and simply changing the lyrics may not be Fair Use, especially if the replacement words have nothing to do with the spirit or meaning of the original work.

You may well wonder, as I did, what is the difference between the use of Disney's "Let It Go" (as discussed in the "Fair Use Isn't Dare Use" article) and Jib-Jab's use of the Woodie Guthrie lyrics of "The Land Is Your Land" as the sound track to a political cartoon.

A discussion of the latter is here:
http://whatisfairuse.blogspot.com/2008/03/more-on-that-jibjab-this-land-is-your.html

As the above-mentioned blog states, "The contents of this site are not intended and should not be taken for legal advice."

It's an E.F.F. blog, and the fine print explains that it is an EXPLORATION of issues RELATED to copyright and fair use "in our digital culture". (The emphasis is mine.)

Apparently, Jib-Jab was sued and counter-sued, and won. And they are still at it:
https://www.youtube.com/watch?v=FwfutA3yxig

Illusion of More, in their article "Celebrate Fair Use Don't Misunderstand" makes what is IMHO the excellent point that "the narrative of the copyright 'debate' today is partly driven by predatory and wealthy tech enterprises, seeking to exploit every weakness in a legal framework that never anticipated the scale, volume, or diversity of infringement that would become possible in the digital market."

All the best,
Rowena Cherry

PS: Periodic reminder. This is a Blogspot blog run by on a Google Platform. Google puts cookies on your computer, whether you want it or not. By visiting this blog, you are construed to have consented to have a cookie or six. Clear your History, check your Preferences.

Librarians Getting Cosy..., Copyright in 2017, More!

My subject line riffs off Jacqueline's title for her series, but my definition for the purposes of this copyright-related blog is the 1.3 version from the OED  "derogatory, informal (of a transaction or arrangement) beneficial to all those involved and possibly somewhat corrupt".

Librarians seem to be getting cosy with Silicon Valley behemoths.

The Trichordist makes an exquisitely strongly-worded case that the American Library Association and other library policy organizations have filed at least a dozen amicus briefs against the interests of authors and other artists, and on behalf of those who violate copyrights.

https://thetrichordist.com/2017/02/17/library-policy-hacks-continue-to-alienate-author-allies-while-sucking-up-to-silicon-valley/

Well, maybe the f-bomb isn't exactly "exquisite"...

There seem to be a lot of exciting old stories that might or might not be heard by The Supremes (SCOTUS) this year. Fenwick & West LLP provide a round up of the top four.

http://www.lexology.com/library/detail.aspx?g=ac59c728-1b64-4cba-875d-cf8d12a2b8c6&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-02-13&utm_term=

Two involve music and video, two involve fair use, one pertains to fashion. I can count. "Fair Use" is a much-twisted fig leaf  for permissionless innovators, and a defense of last resort.

Not of exclusive or even particular interest to writers is the latest from the TCPA. Apparently there are class action lawsuits against those annoying telemarketers who send unwanted text messages to cellphones.

http://www.lexology.com/library/detail.aspx?g=b190ede8-d150-49fe-a591-53241ea0bc11&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-02-16&utm_term=

McCarter & English LLP explain the situation to would-be telemarketers who might fondly imagine that if a reluctant recipient of their texts asks them to "please desist" and their bots are set up to only desist if the recipient texts "STOP", they are in the clear to merrily continue sending text adverts.

Mayer Brown LLP has a fascinating analysis of the copyrightability of recipes. Many writers include recipes in their novels. I have, myself, but I use my own unique ingredients and even more idiosyncratic terminology for measuring and manipulating them.

http://www.lexology.com/library/detail.aspx?g=bcf1b075-c275-4461-abcd-877819c64238&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-02-17&utm_term=

Finally, for today, the Law Office of Joy R Butler gives advice to small and large business owners on whether to stream or not to stream streaming service music in public places.

http://www.lexology.com/library/detail.aspx?g=0f762583-d890-42e8-929b-d25d14f00edb&utm_source=lexology+daily+newsfeed&utm_medium=html+email+-+body+-+general+section&utm_campaign=lexology+subscriber+daily+feed&utm_content=lexology+daily+newsfeed+2017-02-17&utm_term=

The bottom line is important. If you are a copyright owner who protects your own copyrights, respect the copyrights of other artists, musicians and songwriters.

All the best,

Rowena Cherry 

Here Be... Cookies, To Turn A Phrase, and Ivanka Trump

Periodic reminder:
European law requires us (the authors of this blog) to remind European visitors that Google, host of Blogger, places cookies on the devices of all visitors. We (the authors) have no control over the cookies that Blogger/Google places on your devices, and if you visit this blog, we assume that you consent to the cookies.

Talking of European cookie law:
The law firm Morgan Lewis & Bockius LLP recently wrote about European proposed e-privacy rules that may be adopted early in 2018.
http://www.lexology.com/library/detail.aspx?g=27f712c9-a547-4253-8a9e-566518dbfe29&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-01-13&utm_term=

Honestly, I do not believe that the authors of this blog have any access at all to visitors' data, email addresses or anything else (unless you leave a comment, and mostly, you don't).  There does seem to be a visitor counter at the very bottom of the blog page, and according to the above referenced law firm, visitor counters do not require the consent of visitors.

On "60 Ways..." not to leave your lover but "To Turn A Phrase":
In an interesting article about how he advises clients on creating unique and memorable trademarks, Nexsen Pruett refers to "Figures of Speech or 60 Ways to Turn a Phrase" by Arthur Quinn.
http://www.lexology.com/library/detail.aspx?g=a95e16c3-9634-4602-929a-982ac0f267a8&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-01-13&utm_term=

Read Nexsen Pruett's blog if you are thinking of getting a trademark (mine is Space Snark and I did not take this expert's advice).  I'm thinking of buying the late Arthur Quinn's paperback.  However, it is short and expensive, and Google Books helpfully reveals quite a lot of the content (very interesting content on use of misspelled words),  Pages 12-24 consecutively and in full, for instance.
https://books.google.com/books/about/Figures_of_Speech.html?id=jjfAJwB6FoUC

And a search of "And" reveals "To And or Not To And" pages 1 to 9 inclusive. It's a mystery to me how Authors Guild lost that lawsuit, and this is totally lawful.
https://books.google.com/books?id=XFLFiE2kn1QC&printsec=frontcover#v=onepage&q&f=false

Last but not least,
I bought an Ivanka Trump dress last week. It was marked down at T J Maxx, and was well made, flattering, and a modest length. I cannot say the same about the length, of a Pillsbury Winthrop Shaw Pittman LLP law firm's article about artists piling on Ivanka Trump because their artwork shows on her home's walls in the background of her selfies.
http://www.lexology.com/library/detail.aspx?g=0a40e7d1-2a79-4216-b364-505f79e9d2fa&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-01-11&utm_term=

If the late Prince and his music publishers could not prevail in the Dancing Baby case for his music playing in the background of a home movie, it's even more likely to be fair use for whatever one has permanently displayed on ones walls to be in the background of personal photographs.

It might be a different matter if the lady were taking high quality photos of just the artwork and selling prints, but she is not doing that.

The legal blogger (Ms Pillsbury) makes excellent points about Fair Use as regards background images in non-commercial social media type posts on Instagram.

Authors might extrapolate something to consider before taking photographs to promote their own books if there are prominent and clear images of more famous authors' works in the background. It's not cool to use--or tag-- another author's name (without permission) to promote oneself.

All the best,
Rowena Cherry

Will SCOTUS Hear The Authors Guild?

Last week the Authors Guild filed a petition with the Supreme Court asking it to review an October decision by the Second Circuit Court of Appeals in Authors Guild v. Google, a case that began in 2005 as a result of Google’s wholesale copying of millions of copyright-protected works.

Please read the press release here.

https://www.authorsguild.org/industry-advocacy/authors-guild-petitions-supreme-court-to-rule-on-google-copying-millions-of-books-without-permission/

The Authors Guild is encouraging authors to help raise the visibility of the petition and of the issue in general by promoting our press release and any positive media coverage. Additionally, the Authors' Guild put together a sequence of questions and answers highlighting why it’s so crucial for the future of authorship and copyright law that the high Court weigh in to redress the Second Circuit’s alleged misinterpretation of fair use. 

You can find it here.

https://www.authorsguild.org/authors-guild-v-google-questions-answers/

Here are two examples of the important Q & As.

Why is the Authors Guild still pursuing this case against Google?Google copied 20 million books to create a massive and uniquely valuable database, all without asking for copyright permission or paying their authors a cent. It mines this vast natural language storehouse for various purposes, not least among them to improve the performance of its search and translation services. The problem is that before Google created Book Search, it digitized and made many digital copies of millions of copyrighted books, which the company never paid for. It never even bought a single book. That, in itself, was an act of theft. If you did it with a single book, you’d be infringing.

How complicated can it be for Google to ask an author permission to use her work?Exactly our point: the rights are eminently clearable. The court refused to acknowledge this point or take it into consideration. For example, our sister organization, the Authors Registry, as well as the Copyright Clearance Center, find authors for royalties from overseas uses with little difficulty or expense. And there are innumerable collective rights organizations around the world who do this all of the time—without much difficulty, and with much less money than Google.

Happy New Year!

Rowena Cherry

Other People's Work

I'd like to share some important writings by other  people. The common theme is big balls, for good or evil, at least, that's my take.

The first is a Tumblr post with links, written by E A Schecter, on the topic of plagiarism.

http://easchechter.tumblr.com/post/133551099035/plagiarist-a-notice-to-all-fanfic-communities

The second is a legal article from Lexology.com which latter I follow for information about copyright, trademarks, patents and other rip offs of intellectual property.  

This article is an entertaining explanation of fair use and judicial chutzpah by the law offices of Marc D. Ostrow that includes a couple of quizzes and a criticism of some legal rulings.

http://www.lexology.com/library/detail.aspx?g=34cc5be2-4b3a-437d-b5c7-771f833c8a73&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2015-11-18&utm_term=

The third is also from Lexology, by DeBrauw, Blackstone, Westbroek--yes, from the Netherlands-- with an example of how one admirable little European country is supporting copyright owners and slapping down internet hosts who would protect anonymous sellers of illegal e-books.

http://www.lexology.com/library/detail.aspx?g=2d149fee-8bd6-40d5-8043-72e096cf3138&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2015-11-16&utm_term=

Happy Thanksgiving!

Rowena Cherry


PS And then, there is the DOJ taking (a legal term) songwriters' works  and limiting the rights of songwriters to negotiate contracts, all for the benefit of Google, Spotify, Apple, Pandora and other Big Tech companies. See David Lowery's latest:
http://thetrichordist.com/2015/11/19/david-lowery-whiteboard-comments-on-doj-100-pro-licensing-proposal/

"Fair" Use ? Exploiting Artists.

Some words, IMHO, simply should not be used as legal terms. "Fair" for one. "Fair" is too subjective; many people understand the term differently. What seems "fair" game to a student or a scholar or a person or business entity who is very happy to redistribute other people's property without permission, may not seem at all "fair" to a creative individual whose livelihood depends on the legal licensing or sale of their work.

My friend and colleague Marilynn Byerly recommends this article on Fair Use:
https://janefriedman.com/the-fair-use-doctrine/ 

Marilynn blogs about copyright here:
http://mbyerly.blogspot.com/ 

On Facebook this week, artist Jon Paul Ferrara posted about the permissionless use of his artwork on the covers of some ebooks being sold for profit on certain retail bookselling sites.
https://www.facebook.com/jonpaulstudios?fref=photo%3E

Musicians and authors receive most of the attention when copyright infringement is discussed, although there was a memorable dust up in 2012 - 2013 when some websites claimed the right to turn "user-generated content" (ie uploaded photographs) into posters and wallpaper and postcards which the sites would sell for their own profit.  I saw my own paperback book covers offered as posters etc. I wonder whether the intent was that I should purchase it?

Quoting from TheTrichordist from 2013

"When Instagram attempted to change its terms of service that would allow the company to monetize the work of the individual without the individuals permission, consumers went ballistic. It seems that permission is not such a difficult concept to grasp when people are personally effected. This is why privacy is a much more universal issue, because everyone is effected by it....."

http://thetrichordist.com/2013/05/08/permission-privacy-and-piracy-where-creators-and-consumers-meet/

"User-generated" too often means "User-Uploaded" but not generated or owned by the site member.

Here's an excellent site that studied social media sites that strip metadata and copyright information from photographs etc.
http://www.embeddedmetadata.org/social-media-test-results.php

Bouquets for Google, in this case. Brickbats for Facebook... apparently.

The sites that remove copyright information could be a potentially serious issue from copyright holders, because these sites, in effect, make copyrighted works look like orphan works or public domain works.  Why does the law allow this? If the artist's name can --and may-- be lawfully removed from a painting, why shouldn't the author's name that the title of a book be stripped from the book?

(I am not seriously suggesting that attribution and titles should be stripped from copyrighted books. My point is that it should not be stripped from artwork.)

For authors who are self-publishing, make sure you purchase your cover art from a reputable source, and make sure you have the appropriate licensing for your anticipated print-run or distribution. If there are photographers and models involved, see if you can obtain waivers from both.

My best,
Rowena Cherry

Judge Denny Chin Was Mistaken About The Fairness Of Scanning

I had planned to blog about something else....  (How Wrong Rand Paul Is In Supporting Internet Anarchy) however, today I did a bit of pirating with the most pure of motives, and I'd like to spread the word.

Judge Denny Chin decided that Google Books and Google Book scanning is Fair Use. Now, there are four well-recognized tests for whether something is Fair Use or not, and the most important one is whether the activity causes financial loss to the copyright owner.

This morning, Google cost the publishers and authors of WORLD CIVILIZATIONS at least $124.00
(assuming I wouldn't rent it from Amazon, or buy a used copy). Actually, to digress, Amazon's price surprises me. MBS which is supposed to be a cost-effective source for students is selling new copies for $262.00.

I should add another disclaimer. Google claims that the pages are displayed on Google Books by permission of the publisher.
http://books.google.com/books?as_brr=3&as_pt=BOOKS&id=z4mr9PVsCfkC&dq=978-0-495-91300-9&q=Samauri#v=onepage&q=Samauri&f=false

Pages displayed by permission of Cengage Learning. Copyright.

I wonder whether the publisher gave permission "willingly", and whether the publisher would have been so willing if they knew how many pages Google displays as "preview".  I certainly was able to use simple search terms to enable me to do the required reading for a student's homework reading for last week, and also for this week, and next week. (Let me repeat, the student in question has a legally purchased copy of the text. I just was curious about the student's allegations about turgid prose. FWIW, and not to add insult to injury, I found the prose absolutely fascinating.)

Was Judge Denny Chin impressed by the fact that Google Books omits pages, such as 178? I wanted to know whether I could find Page 178 by other means, so I tried other search terms on Google Books, and found a portion of page 178, even though that page was not supposed to be shown at all.

I then took the keyword from what was available on 178, and the ISBN of the book, and went to Google to do a search. I will not share either the lucky keyword or the screen capture of the Google search page, but .... it took me to a .pdf  OF THE ENTIRE BOOK.

Which entire book, I was able to download (in the pure and clean-handed spirit of scholarly inquiry) from that Google Search page without any hindrance or warning that what I was doing was in any way evil and immoral.

This situation is wrong. It should not happen. Judge Denny Chin should not have allowed it to happen. I have informed Authors' Guild, and I hope that other students and copyright activists will take expensive books that they have already purchased legally, and test whether they are able to illegally download copies using Google Books and Google Search.... and help to make a bit of a stink about what it happening to copyright, and how unfair "Fair Use" abuse can be.

All the best,
Rowena Cherry
SPACE SNARK™ http://www.spacesnark.com/