Copyright Talk

Here’s another organization - this one an actual union - for freelance writers and contract writers. The National Writer’s Union provides a number of services, but probably the most valuable of the services - included as part of membership dues, is contract review and advice for publishing contracts of various types. The advice is generally not from an attorney, and you will not receive help in negotiating a contract, but as an alternative to getting no guidance at all, this is a great resource. In exchange, the NWU asks that you let them keep a copy of your contract (without your name) in their database so that they can keep up with industry trends and practices, which allows them to represent writers better.

This is kind of fascinating to me. A clever company a few years ago came up with an idea to respond to the laments of movie-goers that “it’s not like the good old days.” Several companies began re-editing Hollywood movie releases to soften the language and sexual content, and provided those “scrubbed” versions to rental and video sales companies.

Now if the director or the studio had been offering these alternate versions for sale, that would have been perfectly okay. But these were private, unrelated companies that were simply taking a product and altering it, then selling it. Film directors cried foul (actually, they cried “copyright infringement”), and sued when the companies refused to stop. Imagine a bookstore that offers, as a service to it’s customers, books that have had all the sex scenes blacked out with a sharpie, or that blacks out certain words and writes an alternate word above the blacked out one. That’s essentially what these film editing companies were doing, and a federal court said that was in fact a copyright infringement. The ruling came in July 2006 and appeared to be the end of the story.

But never underestimate the power of entrepreneurship, especially when it is so much cheaper to re-edit an already existing movie than to write and produce your own movies. The Canadian press is reporting today that these scrubbing companies are back in business, thanks to what they believe is a viable loophole in the copyright law, if they scrub the movies for “educational” purposes. My guess is that they’ve already built up their legal warchest for the inevitable return trip to the courthouse.

Techtree is reporting this morning that Google has settled the lawsuit filed against it by the French news service AFP. AFP had claimed copyright infringement against Google News for posting content without prior permission. The settlement of the lawsuit means that there will be no legal guidance on the question, but the settlement - and the lawsuit itself, highlights an important point in the use of any copyrighted material.

With only a few exceptions, the first step for any person or company that wants to use copyrighted material should always be to ask permission from the copyright holder. Depending on the use requested, and the author involved, the permission may involve different things. Money is not the main goal in all cases - some authors will be primarily interested in credit and exposure, others will want website links above all else, others still may be most concerned with the context and location of the use. By talking to the author and determining what they want, a user of copyright material in most cases can get exactly what they want without angering the author. And if the author wants something that’s not acceptable to the user, then the user can look for other material to use.

The various Google lawsuits are disturbing because they seem to be demonstrating a pattern of entitlement mentality by Google. In other words, it may be be that because their business model appears to be based on having the most comprehensive search capability and databases possible, they seem to have jumped to the conclusion that they are then entitled to access everything out there, copyright laws be damned.

The public good may be served by improving access to information of all sorts, but the public good is also served by allowing authors to maintain control over their own property. Google is not entitled to decide for the rest of us which public policy should control.

A commenter yesterday brought up the issue of authors who publish in foreign countries. It’s a good point, because freelancers these days do have easy access to foreign markets and regularly publish in those markets. So the question arises - what copyright protection exists and how do they invoke it?

There are two issues related to publishing in foreign markets. The first is the scope of the copyright protection itself, and the second is the contracts that reference those rights.

There are two international treaties that deal with copyright issues - the Berne Convention and the UCC. The US copyright office has a fact sheet on these.

The gist of both these treaties is that the countries who have signed on to these treaties agree to enforce the copyrights of individuals from member countries. This means that if a citizen of the US, who holds a US copyright, publishes an article in Sweden, then Sweden will honor the copyright rights of that US citizen.

While most countries belong to one or the other of these treaties (the US has joined both), not all countries have signed on. If you are considering publishing a piece in a foreign country, check to see if the country in which you will be published is a signatory of one of these treaties.

The second issue involves the contract by which the author grants rights and discusses other terms, such as the all important payment term. Contracts are enforceable under the laws of a variety of jurisdictions, depending on what the contract itself says about which law it is to be enforced under. Particularly when a contract involves parties in different countries, the contract itself should have a clause specifying jurisdiction, and another specifying what law it is subject to. The first preference of an author should be to have jurisdiction in the state in which the author lives, and to have the contract construed under the laws of your home country.

Today I have a link for freelance writers and book authors. The Author’s Guild is a century old organization providing support and advocacy on behalf of published writers. The Guild fully understands the importance of the contract to the livelihood of writers, and provides not only written guidance on contracts, but also provides legal review of contracts and guidance for authors who negotiate their own contracts without the assistance of an agent or attorney. All this is included as part of the yearly dues. It’s a fabulous service, well worth the membership cost. Check out their guide to contracts, and if you are a published author or freelancer who is not already a member, take a look at their site and consider joining while you are there.

Visual artists should check out this website, which discusses contracts dealing with - of course - visual arts. The author is a visual artist (check out the very cool rendition of the copyright symbol on the homepage) and has taken it upon him or her self to help educate fellow artists on this very important subject. You may love your art, but you have to make a living, which means you have to get paid, which means you have to sell smart, which means you have to have a good contract. I think this website is a beautiful example of the good side of the web - peer to peer information sharing at its best.

If you are a creator, the first step to selling your work is to make sure you know what you are selling. Selling a work protected by copyright is vastly different than selling a bottle of shampoo. When you sell a bottle of shampoo, the buyer can do anything they want with it. You may assume they will wash their hair with it, but if they wash their dog or their car with it instead, you really have no right to complain. Even if they take the bottle of shampoo and use it in some new jello/mud/shampoo wrestling venture, the seller of the shampoo has no legal right to intervene.

The sellers of a photograph or article, however, do sell their works for specific uses. If the buyer tries to use the work for a different use, the seller can intervene and either stop the use or be paid money for the additional use. Creator/sellers must have a good contract in place that specifies the rights/uses being sold.

Remarks made by the Register of Copyrights, Marybeth Peters, before the House Judiciary Committee a couple of weeks ago are now posted at the Copyright Office site.

Peters identifies four issues that Congress needs to tackle: 1) Scope of the license [under section 115] and clarification of rights; 2) Collection and distribution of royalty fees; 3) Efficiency of the licensing process; and 4) Rate setting procedures.

The remarks are a thoughtful review of the system and its history. Although not everyone will agree with her suggestions for improving the system, everyone involved with making and licensing music seems to agree that the system is not currently working very well. We can see that reflected in the number of lawsuits being filed and in the confusion expressed by smaller operators - and let’s not forget that ti is reflected in the still low pay received by most musicians for their work. In a world where everything we do is set to a soundtrack, it is deplorable that so many of the musicians who provide this soundtrack simply cannot make enough money from their music to provide even a meager living for themselves. We can and should do better.