About Face

On one authors discussion forum this week, there is talk of a so-called scam (which might or might not be a scam) in which authors are contacted by complainants who claim that the authors are exploiting images on their websites images of the complainant or that belong to the complainant without a license and without permission.

Is it possible that it is not a scam? Actually, it is possible.  It is possible that the author might be in the wrong, and could have legal exposure. 

Blogger Danielle Prager has published a highly accessible article with advice on where to find legal images, and a helpful explanation of what is fair use, and what is not.

https://www.rivaliq.com/blog/guide-copyright-fair-use-laws-online-images/

Most people may assume that all Creative Commons works are "no rights reserved" and may be freely used and shared even on professional websites, book art, and blogs, but many Creative Commons licensed works do have some rights reserved, and most require that the beneficiary (user) of the work at the very minimum provides attribution.

For instance, if using Hubble telescope images of space, one is expected to display attribution, and sometimes to inform the Space Telescope Science Institute or STScI (using this form that pops up if one clicks the text link on  https://hubblesite.org/copyright).  The hubblesite copyright page also is explicit about use of photography:  "If a recognizable person appears in a photograph, use for commercial purposes may infringe a right of privacy or publicity, and permission should be obtained from the recognizable person."

As a general rule, before snagging the perfect image from anywhere on the internet, check out the footer to see if there is a copyright information page. It wouldn't hurt to read Terms of Use. Visitors are legally bound by the Terms and ignorance of what you chose not to read is no defence (or defense) in law.

Legal blogger Mark Weston writing expertly for Hill Dickinson explains that there is more to understanding and using "Creative Commons" images and works than is popularly imagined.
https://www.hilldickinson.com/insights/articles/getting-creative-common-touch
 

If an author trusts a webmistress (or webmaster) to decorate the website, it probably would be prudent for the author to ask to see proof that all necessary permissions have been obtained for all images, and also that if there was a time limit on the license, it is still in effect, and if there was a limit to the number of impressions covered by the license that that has not been exceeded.

Legal Bloggers Aarathi Amerjit and Samantha Lawrence for Gateway Law in the jurisdiction of Malaysia offer advice in .pdf form on scraping --or not scraping-- images from Pinterest, or uploading other people's images to that popular site.

http://www.gateway-law.com/newsletter/07122020.pdf

It's not just other people's faces that can get you in trouble, a recognizable outline or silhouette can trigger a lawsuit. For instance, what rocker wants to be associated with a hygiene product? Seriously, some might, but they would want to be properly compensated for the product endorsement, wouldn't they?

Legal blogger Jeffrey H. Brown for Michael Best and Friedrich LLP discusses an old spicy case.
https://insights.michaelbest.com/post/102gl10/legendary-mc5-guitarist-wayne-kramer-doesnt-like-the-smell-of-proctor-gambles

Lexology link (without a still of the rocker).
https://www.lexology.com/library/document.ashx?g=e8ca0329-3c4f-4dfe-8db6-c01361a2c2ef


And now for an important reminder. If a small business owner, such as an author, has paid more than $600 to any worker or contractor who is not an INC or any sum  at all to a lawyer, 1099s have to be sent out.  The rules have changed.  Now, we need to send out a 1099-NEC instead of using  line 7 of 1099-MISC.

Paper forms can be ordered online and free from the IRS. They normally take about 10 business days in the mail, but this is not a normal time of year.

All the best,
Rowena Cherry 

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

On Dit

"On Dit", or "on-dit":  readers of Regency romances will be familiar with the term, from the French, loosely meaning "they say...."  We might think of it as a non-legally protected disclaimer preceding some salacious gossip.  

"Allegedly" is always safer.

On dit that a one does not have a first amendment right to express one's thoughtful views about a book on the Amazon  platform. 

The ever-interesting Angela Hoy has the scoop on WritersWeekly.

One wonders, is that compatible with Safe Harbor and the DMCA?

Regarding copyright, someone somewhere is asking about copyright and photographs of current political figures. 

One assumes that, since copyright belongs to the photographer, (or sometimes to Getty Images), one should seek out the photographer for a license.  It is always possible that a photograph may be been released through Creative Commons, but one should not trust the internet because some sites accidentally or deliberately (on dit) crop inconvenient and unsightly copyright wording from an image.

See here:
https://www.editorandpublisher.com/stories/photographer-wins-lawsuit-against-buzzfeed-sets-major-dmca-precedent,171750

Or read the full version by D L Cade  here:
https://petapixel.com/2020/08/18/photographer-wins-lawsuit-against-buzzfeed-sets-major-dmca-precedent/?utm_source=API+Need+to+Know+newsletter&utm_campaign=7bbbfa200e-EMAIL_CAMPAIGN_2020_08_20_01_00&utm_medium=email&utm_term=0_e3bf78af04-7bbbfa200e-45875139

For more fascinationg insights, on dit that copyright in photos is not such monkey business when it comes to the orang utan (literally "orange man").

"On" in this case being Dr. Julie Nixon

Lexology link:

https://www.lexology.com/library/detail.aspx?g=fb143697-b347-4b80-be5d-f6f5a47a5d3b&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+em

Morton Fraser Link.
https://www.morton-fraser.com/knowledge-hub/copyright-in-photographs.

Talking of "Orange Man", on dit that Survivorman Les Stroud is going after Bigfoot (who looks a lot like Chewbacca).
https://www.youtube.com/watch?v=N-ILD09_iK0&t=4s

Happily, there are plenty of amusing comments from Survivorman's fans to entertain one until one is able to skip the political ads and get to the good stuff.

All the best,

Rowena Cherry 

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

The "Catch" in Author's Monopoly

Cory Doctorow's March LOCUS column asserts, "A Lever Without a Fulcrum Is Just a Stick":

Lever Without a Fulcrum

The "lever" here is copyright law, the "author's monopoly." The article focuses on some ways the common practices of major publishers can use this "lever" as a "stick" to beat creators. According to Doctorow, broad copyright protections designed in theory to safeguard the rights of authors often don't accomplish that goal in practice if publishers' contracts demand control over the exercise of those provisions. Authors, particularly novice writers, usually can't negotiate changes in standard publishing deals; they face "take it or leave it" offers. E-book and audio rights, for example, are seldom left under the creator's control. This situation effectively strips the "author's monopoly" of much of its power. "The fact that the company can’t reproduce your book without your permission doesn’t mean much if the only way to get your book into the public’s hands is through that company, or one of a small handful of companies with identical negotiating positions."

Doctorow analyzes phenomena such as music sampling, record contracts, Audible (the audiobook provider), video streaming, and DRM in relation to the general problem that, "Market concentration at every part of the supply chain is conspiring to make life harder for artists." His proposed solutions involve rights reversion clauses, changes in licensing rules, and unionization, among other possibilities.

I might suggest that authors deal with small presses (both print and e-book) rather than the Big Five. Small publishers can provide a personal touch and, often, more flexible contractual terms. But, of course, the mammoth corporations offer bookstore exposure and high-volume sales; the latter are almost impossible to achieve online without strong marketing skills. Also, an author who feels she lacks the expertise, resources, or time to exploit subsidiary rights effectively might prefer to leave those outlets in the hands of a publisher with the connections and experience to do so for her. It's a puzzlement.

Margaret L. Carter

Carter's Crypt

AI Rights

Here's an article on the PBS website exploring the issue of what might happen if artificial intelligences were granted the status of legal persons:

Artificial Intelligence Personhood

Corporations are already "persons" under the law, with free-speech rights and the capacity to sue and be sued. The author of this article outlines a legal procedure by which a computer program could become a limited liability company. He points out, somewhat alarmingly, "That process doesn’t require the computer system to have any particular level of intelligence or capability." The "artificial intelligence" could be simply a decision-making algorithm. Next, however, he makes what seems to me an unwarranted leap: "Granting human rights to a computer would degrade human dignity." First, bestowing some "human rights" on a computer wouldn't necessarily entail giving it full citizenship, particularly the right to vote. As the article mentions, "one person, one vote" would become meaningless when applied to a program that could make infinite copies of itself. But corporations have been legal "persons" for a long time, and they don't get to vote in elections.

The author cites the example of a robot named Sophia, who (in October 2017) was declared a citizen of Saudi Arabia:

Saudi Arabia Grants Citizenship to a Robot

Some commentators noted that Sophia now has more rights than women or migrant workers in that country. If Sophia's elevated status becomes an official precedent rather than merely a publicity stunt for the promotion of AI research, surely the best solution to the perceived problem would be to improve the rights of naturally born persons. In answer to a question about the dangers of artificial intelligence, Sophia suggests that people who fear AI have been watching "too many Hollywood movies."

That PBS article on AI personhood warns of far-fetched threats that are long-established cliches in science fiction, starting with, "If AI systems became more intelligent than people, humans could be relegated to an inferior role." Setting aside the fact that we have a considerable distance to go before computer intelligence attains a level anywhere near ours, giving us plenty of time to prepare, remember that human inventors design and program those AI systems. Something like Asimov's Laws of Robotics could be built in at a fundamental level. The most plausible of the article's alarmist predictions, in my opinion, is the possibility of a computer's accumulating "immortal wealth." It seems more likely, however, that human tycoons might use the AI as a front, not that it would use them as puppets.

Furthermore, why would an intelligent robot or computer want to rule over us? As long as the AI has the human support it needs to perform the function it was designed for, why would it bother wasting its time or brainpower on manipulating human society? An AI wouldn't have emotional weaknesses such as greed for money or lust for power, because emotion is a function of the body (adrenaline, hormone imbalances, accelerated breath and heartbeat, etc.). Granted, it might come to the rational conclusion that we're running the world inefficiently and need to be ruled for the benefit of ourselves and our electronic fellow citizens. That's the only immediate pitfall I can see in giving citizenship rights to sapient, rational machines that are programmed for beneficence. The idea of this potential hazard isn't new either, having been explored by numerous SF authors, as far back as Jack Williamson's "With Folded Hands" (1947). So relax, HAL won't be throwing us out the airlock anytime soon.

Margaret L. Carter

Carter's Crypt

Privacy Lost

John Milton wrote "Paradise Lost". This is about "Privacy Lost".

Almost nothing is private these days. Apparently, the legal standard for invasion of privacy is that a reasonable, modern person viewing ...whatever it is that is revealed about you without your consent... would be shocked and highly offended. Standards are gutter level, these days.

Moreover, there are internet sites that reveal (usually for a fee) a great deal of information about your full names, aliases, address(es), birth date, friends, business, education, employment, criminal record (whether you have one or not), so it is not easy to prevail in a complaint against an individual who doxxes you, since you cannot stop Spokeo.

Authors who write under pen names should take note. 

Legal blogger Tammy Winkler writing for the law firm Faruki Ireland Cox Rhinehart & Dusing PLL explains in "Snoops On A Plane: Looking For Privacy In All The Wrong Places"  how little an expectation of privacy the unwilling subject of someone else's photograph has --or should have-- when travelling. Even one's trip to the loo is fair game for comment and speculation in the Twittersphere!

https://www.lexology.com/library/detail.aspx?g=a2a6a8a1-2765-4fb5-83bc-e9f356e59241&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-08-30&utm_term=

Notice the neat riff on a movie about legless members of the squamata order of reptiles and also on a lovelorn country song by Johnny Lee.

Talking of planes, airplane mode on your smartphone is no protection of your privacy. According to a Tucker Carlson analysis (use Bing and search for "Tech Tyranny" and August 31st), your phone may be tracking you, whether it is on or off, regardless of the mode, and as soon as it is connected to the internet, it will send all your movements, locations and even biometric data (whether you are riding, driving, walking, sitting etc) back to its mothership, logged to the millisecond.  Even if you visit a hospital, a church, a private school...you are snooped upon.

And do you know who founded 23andMe?  Perhaps big brother has our spit, too!

Authors might do well to think of other people's privacy, too.  Emily R. Lowe and Susan Milyavsky, blogging for the law firm Morgan Lewis and Bockius LLP discusses much-overlooked website Terms of Use.

https://www.lexology.com/library/detail.aspx?g=a06a2a60-acd9-459c-9886-4c219abfa55a&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2018-08-30&utm_term=

Authors and other website owners who are still using this boilerplate:

 We may, at any time and without notice, modify these Terms of Use by revising them on the Site. Your continued use of the Site constitutes your acceptance of any such revisions. You should periodically visit this page to review the current Terms of Use.

....  should consider adopting the wording suggested in the Morgan Lewis article.

To end on a positive note, the internet can cut both ways. The Trichordist exposes the fact that, while a well organized corps of internet savvy individuals can vote with the voices of millions (and across borders, too), their smoke and mirrors don't necessarily translate into a good turn-out for in-person demostrations.

https://thetrichordist.com/2018/08/28/dismal-turnout-for-anti-copyright-directive-protests-in-eu-suggests-little-real-opposition/

Happy Labor Day holiday!

All the best,
Rowena Cherry

Author Beware.... and Emoji have Rights, Too

In the desperate scramble to promote ones own works, it is all too easy to trample other people's rights unawares. Beware of the rabbit holes and quicksands that pockmark the online copyright landscape.

One might assume that, if Google or Facebook sells one a "keyword" for advertising purposes, they must have all the necessary legal rights and licenses to sell those names and words? Not necessarily!

In "Facebook's Misappropriation Problem: Selling Artist Names As Advertising Keywords", Chris Castle writes about the possible violation of celebrities' rights, in the selling of famous persons' names as advertising "keywords".
http://www.huffingtonpost.com/chris-castle/facebooks-misappropriatio_b_14022706.html

Chris Castle focuses on Facebook. When someone considers litigation, one usually goes after the entity with the deepest pockets. The trouble with defendants with deep pockets (such as Google, Facebook, Amazon) is that they could probably make the process so expensive that the plaintiff's resources are exhausted.

In "Using The Name Or Likeness Of Another", the Digital Media law Project offers excellent guidance on using --or NOT using-- another person's name (or likeness) for commercial purposes (or advertising).
http://www.dmlp.org/legal-guide/using-name-or-likeness-another

This should be required reading for any debut author who is considering buying Facebook advertising "keywords" to suggest that fans of this or that (named) established famous author might like to buy the debut author's book.

A newbie might be safe from a lawsuit if he suggests that he writes like Shakespeare on steroids. Possibly the worst that could happen would be reviews to the effect that this newbie "is no Shakespeare". However, it might be considered rude to use the name of an author who recently declined the opportunity to write a cover quote for the newbie.

And  Jack Greiner of Graydon.Law chimes in with commentary "Could Key Words Mean Trouble For Facebook?"
https://graydon.law/key-words-mean-trouble-facebook/

The trouble is less one of trademark infringement, but more of "right of publicity"... the right to NOT have one's name used to sell other people's stuff without one's consent and without payment.

Perhaps, it would be wise and polite to obtain written permission from the owner of the name one wishes to use to promote one's book, or to reach their audience when a member of their audience searches for something related to the established author's books, and your stuff pops up.

It's not just the names and likenesses of real people that you disrespect at your peril. You have to watch what you are doing with other peoole's emoji, too. Even ones that are "free".
http://www.lexology.com/library/detail.aspx?g=06fecd27-418d-4629-b14c-1b0c376947ba&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-05-04&utm_term=

As Kimberly Culp and Juan Aragon explain (for Venable LLP), explain in "Copyright Considerations for using Emoji in Commercial Ads:

EmojiOne, for example, provides a free license for commercial use with attribution. EmojiOne requires that commercial users provide a link to their website: such as, “Icons provided free by EmojiOne.” For websites, the link must be somewhere on the website, but does not require a link on the specific page. For printed ads, the attribution information must be in small text at the bottom of the ad. If attribution is an issue for an advertiser, EmojiOne offers custom licenses, which requires contacting the company directly.

This author has no idea whether or not Facebook sells emoji as "keywords", or whether any author would wish to use emoji in a book advertisement.

For newcomers to copyright concerns, the law firm of Kegler Brown Hill and Ritter, Jasmine J. Hurley blogs about the 5 basics of copyright
http://www.lexology.com/library/detail.aspx?g=793c140a-7fba-445b-86c1-08bfebce2fbf&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-05-11&utm_term=

BTW, Happy Mothers' Day!

All the best,
Rowena Cherry

Does Every Cloud Have A Silver Lining? (Copyright-Related)

In 2016, Google claimed to have removed 900 million allegedly copyright-infringing links according to an article on TorrentFreak.
https://torrentfreak.com/google-removed-over-900-million-pirate-links-in-2016-161230/

Apparently, the number removed represents approximately 89.9 percent of the over-a-billion take down requests made to Google by rights holders. Surely, there would be fewer requests if there was a way to ensure that a link cannot be re-upped once it is taken down?

The comments on the piece make depressing reading. Let's say that the followers of torrent freak are not copyright-protection enthusiasts.

I gained a new perspective on why so many folks in society have so little respect for copyrights and the right of musicians, authors, photographers, movie-making participants and others to be paid for their time, talents and effort from the free Hillsdale College lecture covering the difference between Originalists and Progressives when it comes to the rights of an individual.

According to Professor Ronald J. Pestritto, the Progressive ideology is heavily influenced by European--especially German-- thinking, and holds that the needs of the Community is always superior to the needs (and rights) of the individual, and far from certain rights such as the right to Life, to Liberty, and to the Pursuit of happiness being bestowed on mankind as a birthright by the Creator, all rights that an individual has are permitted by the government depending on convenience and expediency.  (And can be revoked.)

How expedient and convenient do you suppose it is to uphold individual copyrights?

Also, in a guest post on TheTrichordist, Marc Ribot presents a chilling analysis of why individual "content creators" (aka copyright owners) are so helpless against piracy.

https://thetrichordist.com/2017/01/02/ghostship-mourn-the-dead-fight-like-hell-for-the-living-guest-post-by-marc-ribot/

The "Ghostship" title refers to the dreadful warehouse fire, and the economic plight of working artists in San Franscisco as a result (Mr. Ribot suggests) of political, legal, and economic decisions, not least of which concerns copyright.

I'd like to end on a positive note. However, there are some revelations about Risk Factors (intellectual-property-right related, of course) that Facebook had to disclose in its 2015 annual report. According to the fascinating Chris Castle, Facebook is selling artists' names as advertising keywords, allegedly without permission.

Perhaps, given the lofty stock values of some tech companies, it might be a good time to look into shorting Big Tech? Does The Cloud have a silver lining? (snort!)

All the best,
Rowena Cherry