Fair and Unfair Publishing Agreements

In the United States authors’ rights to enjoy the fruits of their labor are protected by the Constitution: “The Congress shall have power. . .to promote the progress of science and useful arts, by securing for limited times to authors . . . the exclusive right to their respective writings.” This Constitutional grant of legislative authority is author-friendly in affirming that authors are entitled to the potential rewards made possible by a time-limited monopoly. However, while the benefits of copyright initially belong to authors, once they assign their rights to publishers and other content distributors, the copyright baton passes, and authors cede control to their transferees.

What authors get in exchange for this ceding of control depends on the contractual terms to which they have agreed. This generally means. . . . Continue reading Fair and Unfair Publishing Agreements NYSBA Bright Ideas Winter 2016.

Characters and Copyright Protection

It would be unusual in a work of any genre for every part to be protected by copyright law even though the whole work bears the symbol ©. Only when an infringement is alleged and challenged does it become apparent that the phrase “original works of authorship” (Section 102(a) of the Copyright Act of 1976) is not self-defining as to what matter within the work is actually protected. Plots, themes, settings, scenes, devices, and characters are protected only to the extent that they are lifted above generic expression otherwise they are merely the architecture and machinery used to narrate a story.

In the initial stage of this assessment a distinction is made between protected expression and unprotectable idea….. Continue reading Characters and Copyright Protection Characters and Copyright Protection.

The Role of Investors in Marketing Literary Works

Copyright adheres to creative works when they are fixed in tangible mediums of expression for the first time. At the moment of fixation authors own and control their works in every respect, but this is likely to change as rights to works are offered to prospective investors. I am assuming here the author is interested in a return of his or her own investment of time and mental effort in creating the work. That is usually the case even if inarticulately expressed, but return of author’s investment depends on others’ investments, which involves a calculus that the investments are worth making.

The economic nexus when discussing creative works and their passage to market is unavoidable. Concern for return on investment operates at every level from creation to market, and at every level there are contractual relationships that establish precisely the amount each party. . . . .  Continue reading The Role of Investors in Marketing Literary Works

Next Book Option In Publishing Contracts: Benign to Toxic

In May 2015 the Authors Guild announced its “Fair Contract Initiative.” So far it has addressed royalty rates on e-books (should be 50% of net receipts not 25% as it presently is), term of license (should be less than term of copyright which is the default term for print books), name of copyright owner (should always be author not publisher), and next book option (should be strictly limited).

These white papers from the Authors Guild are available on its website at. . . .  Continue reading. Next Book Option In Publishing Contracts

Characters As Protectable Assets Do Not Survive Copyright Termination

Characters as protectable assets do not survive copyright termination of the works in which they appear even though they may continue to live on in works that continue in copyright.  All works published prior to January 1, 1923 are in the public domain, a vast repository of cultural wealth available for exploitation by authors/publishers/entrepreneurs who can prepare derivative works without asking permission or paying licensing fees. As a result of extensions of the term of copyright for works published after 1923 the public domain will not be enlarged until at least January 1, 2019. Works published after 1923 can be used for derivative works only with the permission of the author; or if the author is deceased. . . .  Continue reading Characters As Protectable Assets Do Not Survive Copyright Termination

Derivative Works: Who Owns What?

Courts have recently been busy dealing with the puzzling concepts of derivative works, fair use, and transformation. “Transformation” is the underlying principle of derivative works created either by the author or licensees with the author’s permission; or created without the author’s permission legally under the fair use doctrine. There are two sets of rights granted to copyright owners under the Copyright Act of 1976: the primary rights under section 106 (“exclusive rights in copyrighted works”); and the implicit right of others to make “fair use” of the original under (section 107, “limitations on exclusive rights.”)

Through their copyrights authors control reproduction and distribution of their works, always subject to rights granted to licensees. Authors also have the exclusive right. . . . Continue reading Derivative Works_Who_Owns_What

Author’s Right to Compensation for Intellectual Production

Authors’ incomes generally come from royalties and licensing revenues for works protected by copyright. He or she has a right to compensation for intellectual production.  Section 102(a) of the U.S. Copyright Act states that “original works of authorship fixed in any tangible medium of expression” are protected by copyright.  By definition in Section 102(b) ideas and concepts do not have copyright protection.  A writing known in the entertainment industry as a “series treatment” which embodies an idea developed for a television series is protected in part and unprotected in part.  If there is no statutory copyright protection for “thought creations” the creator’s right to compensation must come from contract.  Binding a party to whom an idea or concept has been disclosed does not necessarily. . . . . Continue reading Authors_Right_to_Compensation

Terminating Exclusive Licenses

Terminating exclusive licenses after the passage of time is a statutory right. The Copyright Act of 1976 decrees that the author shall have a right exercisable only once for each separate literary work under exclusive license and for a brief window of time after 35 years from the date of a work’s publication to terminate a license. (There are some qualifications to this, but not necessary to explain the concept). There are two provisions concerning statutory termination, one. . . . . Continue reading Terminating_Exclusive_Licenses