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Category: Publishing

  • Fair Use Explained in 50 Words?

    A Fair Use Challenge

    I am quoted in a Forbes article regarding how authors and writers can rely on copyright fair use when citing other textual works in their books and articles. The Forbes writer challenged me to provide a 35-50-word fair use rule of thumb to which authors and writers can refer when quoting other works.

    A Rule of Thumb for Fair Use

    Although I exceeded the desired word count by nine, here’s what I offered as a rule of thumb:

    Use the quote for purposes of commentary, news reporting, or parody – though that need not be the primary purpose of your entire article or book. Quote as few words as possible to make your point. Note your fair use chances increase when quoting a factual work like a history rather than a highly creative work like a science fiction novel.

    Caveats for Any Fair Use Rule of Thumb

    Qualitative; Not Quantitative.  Fair use is not a quantitative test. It is a qualitative test. There is no bright line rule in determining what qualifies as fair use such as 250 words of text or 8 notes of a song or 10 seconds of a film.

    Specific Circumstances Matter.   Instead, whether or not a particular use qualifies as a fair use depends on the specific circumstances of the use. Hence, there are certainly uses that do not meet all the criteria stated in my rule of thumb and still qualify as a fair use.

    Fickle.   Fair use is often fickle and we cannot always answer with 100% certainty whether a particular use is a fair use. In those circumstances, authors have to evaluate the riskiness of citing the material without a license and how much of that risk they and their publishers are willing to accept.

    You can read the full Forbes article, “What is Fair When it Comes to Fair Use?", by Henry DeVries here.

  • Title Reports and Title Opinions for Films, Books & Other Creative Stuff


    Trademark protection – and not copyright protection – protects titles. However, trademark protection is not available for all titles. While the title
    of a film or book series may be protected, the title of a single film or single book is typically not protected. Even though the title of your single
    film or single work is not protected, your selected title may violate someone else’s trademark. That’s where title reports and title opinions come in.


    What Is a Title Report?


    A title report lists productions with similar titles to your proposed title as well as any trademarks similar to the proposed title. Title reports are
    structured much like trademark clearance reports that a business obtains prior to choosing a name for its company or product. Most title reports cover
    a search of the Copyright Office’s records, the Trademark Office’s records, and other entertainment databases. A title report can run a few dozen to a few
    hundred pages, depending on the number of similarities found. Professional search companies that offer title reports for entertainment works include
    Thomson Compumark and CT CorSearch.


    What Is a Title Opinion?


    A title opinion is distinct from a title report. A title opinion is a letter normally prepared by an attorney which indicates, in the attorney’s opinion,
    whether the title is available as the title for your movie, television program, etc. The attorney bases her title opinion on the results of the
    title report. The title opinion normally runs one to five pages.


    For More Details


    There is a discussion about title reports and title opinions and suggestions on how to select a trouble-free title in my book, The Permission Seeker’s
    Guide Through the Legal Jungle    .

  • Why You Don’t Really Own Your Ebooks


    As a consumer, do you own that ebook for which you just paid and which you can now access via your Kindle, Nook, iPad, or personal computer? Amazon,
    Barnes & Noble, Apple and other ebook vendors say you do not. To understand why you do not own your ebook, we turn to a copyright law concept called
    the First Sale Doctrine.


    What’s the First Sale Doctrine?


    The First Sale Doctrine is why we can have a market for used books, CDs, and dvds. If you are the owner of a lawfully-made, lawfully-obtained copy of a
    copyrighted work, the First Sale Doctrine allows you to sell, lend, or otherwise transfer that copy in any way you wish.


    However, the benefits of the First Sale Doctrine apply only if you own the copy. Manufacturers often try to defeat the First Sale Doctrine by
    distributing their products under a license agreement. All the major ebook vendors have used this licensing approach. As a licensee rather than a
    purchaser, you may not freely re-sell or loan out your new ebook.


    Courts sometimes strike down manufacturers’ licensing characterization. This happened in the music industry when a court decided that promotional
    CDs distributed by record company UMG qualified as a sale or gift and not as a license, and could therefore be legally re-sold on eBay.


    Do You Merely License that Ebook?


    If ebooks-as-licenses were ever challenged, there is a good chance that a court would side with the ebook vendors. When looking at this same issue
    in other industries, the courts have ruled in favor of a license rather than a sale when the vendor tells the consumer it’s only a license, restricts
    the consumer’s ability to transfer the product, and imposes restrictions on how the consumer may use the product. Ebook vendors do all three.


    Even if the First Sale Doctrine did apply to ebooks, there are currently technical barriers to exercising it since many ebooks are locked into or
    tethered to the reader’s personal reading device. Vendors would need to establish a technical means by which consumers could transfer their ebooks.

  • Has Google Already Digitized Your Book?

    Google has already digitized more than 7 Million books as part of its book program. Authors and publishers who remain a part of the Google Book Settlement are to receive between $60 and $300 for each book Google digitized without permission.

    Limited Access to Google’s Official Database of Digitized Books?

    During my April 2, 2009, teleseminar, What the Google Book Settlement Means for Authors and Publishers, attendees asked how they can determine whether Google has already digitized their books. As I shared during the teleconference, in the Final Notice of the Class Action Settlement, Google indicates that a searchable database of all books covered by the Settlement is available at www.googlebooksettlement.com. I could not locate or access the database when I went the Settlement website. I suspect it is only available to those who have confirmed their participation in the Settlement.

    Other Options for Determining Digitization Status of Your Books

    If you can’t get to the searchable database on the Settlement website, here are some suggestions obtained from the Anz LitLovers Litblog.

    • Visit Google Book Search which is available at http://books.google.com/
    • Search for your books by title or by author name
    • If you find your book, click on the link “About this book” and check the information included under the heading “More details”

    According to Anz LitLovers Litblog, if your book has been digitized, it will be indicated under the “More details” heading along with identification of the library that provided the book for digitizing. While I don’t think this is true for every book that Google has digitized, it was the case for the sample search ‘Tribal Guerillas’ cited in the Anz LitLovers Litblog posting.

    I say it’s not true for every digitized books because I saw several books that did not have this information listed under “More details” yet were listed as being available preview. For example, one book listed as “Limited Preview” offered 60 of the book’s 300 pages for online preview. If there is that much of a book available for preview, my bet is Google has digitized the entire book.

    Obviously, this method of checking the digitization of your book is not full-proof.

  • Annotated Summary of Google Book Settlement Agreement

    Annotated Summary

    I have prepared a 10-page annotated summary of the proposed Google Book Settlement Agreement. The annotations are references to the relevant provisions in the Settlement Agreement. You can use the summary for an overview of the Settlement Agreement. Alternatively, you can use it as a guide for your own journey through the 300+ page actual Settlement Agreement. The annotated summary is available at www.joybutler.com/googlesummary.pdf

    Accompanying Teleseminar

    The annotated summary tracks my free teleseminar, What the Google Book Settlement Means for Authors and Publishers, offered on April 2, 2009. A recording of the teleseminar will be available for replay by phone until at least May 31, 2009. You can access the complimentary telephone replay by calling (641) 715-3900. When prompted for the extension, enter 47422 followed by the pound sign (#).

    The 10-page Annotated Summary and Teleseminar Address the Following Issues:

    • How did the Google book program and the lawsuit happen?

    • Who falls under the terms of the Google Book Settlement?

    • Why are May 5, 2009; June 5, 2010; and April 5, 2011 important dates for authors and publishers?

    • What can Google do with your book if you remain in the Settlement?

    • What are your rights to remove or exclude your book from the Google book database?

    • What payments will Google make to authors and publishers?

    • What happens if Google decides your book is not commercially available?

    • How does the Google Book Settlement impact relationships between authors and publishers?

    • What additional factors should authors and publishers consider when deciding how to respond to the Settlement?

  • Figuring Out Your Publication Date

    Publication within copyright law can be a complicated concept. As a general rule, in order for a work to be considered published, the copyright owner must authorize the publication and make multiple copies of the work available to the public.

    A small publisher inquired whether the publication date would be “the date your books emerge from the bindery, the date the shipment arrives at your warehouse, the date you send out review copies, or the date you sell your first copies. I would argue that for copyright law purposes, the date you offer the first copies for sale is the date of publication.

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  • Class Action Lawsuit Filed Against Amazon.com

    In
    my blog posting, Changes Afoot in the Publishing Industry, I
    discussed amazon.com’s new requirement that publishers use BookSurge, an
    amazon.com-owned subsidiary, for the printing of all print-on-demand books offered
    directly through amazon.com.


    Print-on-Demand printing, or POD for short, is a method of printing by which you print one book at a time.  See Part Two of the blog series on the The Ins and Outs of Self-Publishing for more information on the business aspects of POD printing.

    Many publishers are upset about amazon.com’s action.

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  • Changes Afoot in the Publishing Industry

    The
    publishing industry has been abuzz over two recent developments: one involving amazon.com and print-on-demand; the other involving Harper Collin Publishing.

    Amazon.com and Print-on-Demand

    Some Background on POD Printing. Print-on-Demand printing, or POD for short, is a method of printing by which you print one book at a time. I discuss
    POD printing in
    detail in Part Two of my blog series on the Ins & Outs of Self-Publishing     .

    While POD lowers upfront investment and financial risk, it increases the publisher’s costs of producing each book. That makes it difficult for publishers using POD printing to offer the 40 – 60% discount that is normally required for sales through bookstores and other traditional book distribution channels. Nevertheless, there are publishers who have built successful business models by combining POD printing, a short discount to wholesalers, and sales through amazon.com and other online bookstores.

    Amazon’s Recent Actions. Lightning Source is the leader among POD printers. Amazon is
    requiring publishers to use a Lightning Source competitor, BookSurge, for the printing of all POD books offered through amazon.com. The consequence of not complying is loss of the buy button on the book’s amazon.com profile page. This means the book would be sold only through marketplace resellers and not directly by amazon.com – an action that will surely decrease the number of books sold through amazon.

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  • J.K. Rowling versus the Harry Potter Lexicon


    J.K. Rowling, the author of the Harry Potter book series, has filed suit against a Michigan-based publisher to prevent publication of the Harry Potter Lexicon, a 400-page booked based on material
    from the Harry Potter Lexicon Website created by Harry Potter super-fan, Steven Vander Ark.

    RDR Books and Steven Vander Ark’s Argument

    The publisher of the Harry Potter Lexicon, RDR
    Books, describes Vander Ark’s book as a reference book that analyzes and describes all the characters, places, spells, creatures and physical objects found in the seven Harry Potter novels.  Vander Ark
    organizes the material like an encyclopedia in alphabetical order. RDR argues that the book is protected under the First Amendment and the copyright fair use doctrine. Rowling and Warner Brothers
    refer to the book as a re-packaging of Ms. Rowling’s creative work.

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  • More Legal Issues in Julie & Julia

    In my last posting, I began discussing the book Julie and Julia: 365 Days, 524 Recipes, 1 Tiny Apartment Kitchen. I noted that while I saw no copyright issues with respect to Julie Powell’s discussion of Julia Child’s recipes from Mastering the Art of French Cooking, I did see other rights issues.

    The real rights issue with respect to Julie and Julia is right of publicity. Julia Child’s estate could have accused Powell and her publisher of using Julia Child’s name and persona to promote Powell’s book. Julia Childs name forms part of the book title. Also, there’s a book promotional trailer that includes Julia Child’s image. As an aside, I highly recommend viewing the trailer which you can find here.  It
    is hysterical and very well-done.

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