Author Archives: Erika Wilson

Rights Reversion Success Story:
Tracee Lydia Garner

Posted April 19, 2017

Just in time for the second anniversary of our Guide to Understanding Rights Reversion, we’re pleased to feature Authors Alliance member Tracee Garner’s success story. Since gaining back the rights to two of her previously published novels, she’s resumed work on her Jameson Trilogy, due to be published next spring. We met with Tracee at the AWP conference in Washington, DC, earlier this year, and she generously shared her rights reversion experience with us in the following Q&A.

Novelist and Authors Alliance member Tracee Lydia Garner

AUTHORS ALLIANCE: What first motivated you to get the rights back to your previously published novels?

TRACEE LYDIA GARNER:  I hadn’t really thought of reversion until I heard other authors asking how to go about it. Then I went to a conference in 2015, and a young woman came up to me and asked me if I would ever write Jojo’s story [the continuation of a character featured in her previous books.]  I admit that at first, I was annoyed—not so much at her, but more at myself, because I hadn’t finished with him, and I secretly did want to!

Then I had to look at how I could make it happen. If I was going to write Jojo’s story, I wanted to fold it in with my earlier books, update the covers and content, and release them as a new set, since any marketer will tell you that sets do very well. But in that case, I had to ensure that I could get the rights to those earlier books back. And then I had to get new ISBNs and do a bit of reload and relaunch to make it all work. All of that was the catalyst for formally requesting my rights.

AuAll: How did you go about requesting a rights reversion?

TLG: First, I researched online about writing a reversion letter to my publisher. Then I had to dig out my almost twenty-year-old contract and figure out whom to contact. (When you have one of the largest publishers in the world, with offices in NYC and Canada, it seems like real investigative journalism!) Contracts are very intimidating, and you have no desire to revisit it at all. You resist (and our creative minds can even make it more difficult than it has to be).

Once I figured out the jargon, found a sample letter online, and tracked down the right contact people (or their replacements), I e-mailed my request to my publisher. Then I waited (a good little bit)! I think I re-sent the letter at least once, saying “Hey, over here.” It took months until I got the letter saying that I had, in fact, fulfilled my seven-year contractual obligations. Very official!

AuAll: So you were eligible to exercise a clause in your contract granting reversion rights?

TLG: Yes, my contract was for a term of seven years. After seven years had passed, they were my books in theory, but it’s never good to assume, so I made the request to ensure that I received appropriate documentation to that effect. With the influx of digital rights and an ability to make use of ebook versions and audio versions, it’s important to be certain you are cleared for these kinds of rights, too. Be sure there was no addendum to your contract that permitted your publishers to hold onto these rights, and only revert some of the parts back to you.

AuAll: Did you face any obstacles in getting your rights back? Is there anything you wish you’d known going into the process?

TLG: The hardest part was finding the words to use and finding the appropriate persons to contact. Reversion doesn’t seem commonplace, at least not yet. Who would’ve thought we could ask for our rights back, repackage, edit, slap on a new cover (after design headaches, of course!), add new ISBNs, relaunch…and voila! New audience, new eyes, new readers. But there is also something intimidating about rights being returned to you. Rights back? For what? What do I do with them?

I imagine that at least some writers might have thought that ABC Publishing Company would publish forever and we’d all be fortunate enough to collect royalties like the estate holders for Michael Jackson and Elvis and all the popular TV shows and radio artists—only to find out that no, it doesn’t work like that!

AuAll: What advice do you have for other authors who might want to pursue a reversion of rights?

TLG: Remember that someone has already been through every incident you could possibly think of. Even though we sometimes feel like we write alone in our little caves, there are people out there to help. And it is worth the effort!

AuAll: How has reversion helped you? What have you been able to do with your book since reversion?

TLG: I had written two books in a planned trilogy, but I never finished the series. So I will be editing and repackaging the two books that I have back. I am finishing the third installment now. Fixing the books is no small feat, but the excitement of having a new trilogy propels me toward completion. It’s very exciting that, thanks to reversion, your characters get a second life, as does your career overall.

Tracee Lydia Garner is a bestselling, award-winning author. Her sixth book, the romantic suspense novel Deadly Affections, was released in March 2017. Born and raised in a suburb of the Washington DC metro area, Tracee works in health and human services, and is a speaker and advocate for people with disabilities. Her forthcoming Jameson Trilogy—made possible thanks to rights reversion—is scheduled to debut next spring. Find Tracee on the web at www.Teegarner.com.

Authors, if Tracee’s success story has inspired you to consider reverting rights to your previously published work, you don’t have to start from scratch! We’ve already done much of the preliminary work for you. Visit the Authors Alliance Rights Reversion Portal, where you’ll find our complete Guide to Understanding Rights Reversion, as well as letter templates for use in contacting your publisher, plus a collection of reversion success stories.

If you value our work and are not yet a member of Authors Alliance, please consider joining today. Basic membership is free, and our members are the first to hear about our latest tools and resources.

Authors’ Rights Beyond Attribution and Integrity:
The Rights to Revive and Revise

Posted April 6, 2017

 

“Author from BL Harley 4425, f. 133” by Guillaume de Lorris and Jean de Meun is licensed under PDM 1.0

“Author from BL Harley 4425, f. 133” by Guillaume de Lorris and Jean de Meun is licensed under PDM 1.0

The following article, by Authors Alliance co-founder Molly Shaffer Van Houweling, continues our series of posts on the topic of moral rights. Molly is Professor of Law and Associate Dean at UC Berkeley, and a faculty co-director of the Berkeley Center for Law and Technology. She also serves as Board Chair of Creative Commons.

The Copyright Office is considering whether U.S. Copyright law ought to recognize authorial attribution and integrity rights. Authors Alliance submitted comments in support of these rights—if they are carefully crafted and limited—but also proposes two other authorial rights: one to revive one’s work and the other to revise one’s work if the copyright is owned by another.

Here’s why:

Consider the plight of an author who has assigned her copyright to a publisher who is no longer printing the book or making it available online. Perhaps the publisher has lost interest because sales are low; but the author still maintains a strong interest in having her work available to readers. Authors Alliance member Paul Heald’s research suggests just how prevalent this problem is.

The only tool that U.S. copyright law currently provides to authors of works that are effectively locked up in a publishers’ vault is a right to terminate a copyright transfer 35 years later. In theory, authors could use the termination of transfer provision to revive works that have fallen out of print. In practice, the daunting intricacies of the scheme make it difficult for many authors to take advantage of their rights. These challenges are not insurmountable. Authors Alliance and Creative Commons are making efforts to help authors exercise their rights. But even if it works as smoothly as possible, the termination of transfer provision is an awkward solution for authors who want to revive their works. Most glaringly, termination does not take effect for decades after a work was created. In most cases this will be long after a book has gone out of print.

Now consider an author who has changed her mind, on the basis of new research, about an argument she made in a book to which a publisher owns the copyright. She wants to disseminate a revised edition but the publisher denies her permission to create a derivative work based upon the original. An author who is not the owner of copyright in her own work cannot insist, under U.S. law, on her right to revise that work beyond what is permitted by fair use. And, again, the termination right might not be a timely or practical solution.

The prospect of these dilemmas is one motivation for authors who are increasingly retaining and managing their own copyrights. Unfortunately, that movement comes too late for authors who have already assigned their copyrights to publishers. For some such authors, it may be possible to exercise a contractual right of reversion or renegotiate as described in the Authors Alliance Guide to Understanding Rights Reversion. But not every contract includes a reversion clause and not every publisher is willing to renegotiate—even assuming that the publisher is still the copyright owner and can be easily identified and located that purpose (not a safe assumption in light of the well-documented problem of orphan works).

Perhaps what these authors need—in addition to rights of attribution and integrity—are statutory rights to revive and revise their works. Although such rights are not separately identified as part of the authors’ rights tradition, there are some features of copyright laws of other nations that at least nod toward their importance. In a recent article in the Houston Law Review, I explain how the U.S. could borrow from and improve upon these approaches to prevent the dilemmas faced by authors for whom copyright stands as an obstacle to reaching readers with both their existing works and their new ideas.

For more in our series on moral rights, read on!

Pam Samuelson on “A Case for Recognizing Attribution and Integrity as Moral Rights”

Authors Alliance on “The Need for a Nuanced Approach to Attribution and Integrity Rights”

Our comments in response to the Copyright Office study on moral rights

“When Everything’s Made Up”: Authors Alliance
on the Free Press

Posted April 3, 2017

The following guest post was written by Thomas Leonard, University Librarian emeritus and Professor of Journalism emeritus at UC Berkeley, and a member of the Authors Alliance board of directors. Leonard is an expert in the history of American journalism; his books include The Power of the Press: The Birth of American Political Reporting and News For All: America’s Coming of Age With the Press

Some of the most damning lines about American media are gaining new currency these days:

“Nothing can now be believed which is seen in a newspaper,” President Thomas Jefferson said in 1807. Now, slightly revised, it is a Trump line.

“Whenever his liquor begun to work, he most always went for the government”—Huck Finn’s verdict on his father may be a fair statement about many of us, dazed by our new President’s administration.

It took some hard lessons before our Constitution’s glorious words about freedom of the press were understood as a libertarian sacrament in the early Republic. The John Adams administration managed the arrest of some two dozen critics under the Alien & Sedition Acts before the Constitutional principle of a free press took its modern shape, following the realization that this could happen to anyone not holding the reins of power.

Similarly, respect for the press was not robust at the creation of American government. This value developed through political struggle. The first U.S. copyright law of 1790 provided the privilege for books, maps and charts; just how authors of newspaper and magazine stories were to protect themselves was not addressed. The first Congresses did not report their own proceedings in any detail, let alone make it easy for journalists to hear what was going on. Rights for a free press and for the citizens who would need it were built over time, and with a variety of special interests doing much of the lifting.

Consistency and purity of motives have never been common features of our civil society, particularly in our history of a free press. Self-interest has been the anchor (perhaps a better one than idealism alone), and self-interest across the political spectrum is likely to deflect the harshest threats against the press today. Until recently, Donald Trump’s most noted attack on journalists was his statement in February, 2016 about how they could be brought to heel: “We’re going to open up those libel laws. So when the New York Times writes a hit piece which is a total disgrace or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”

Since taking office, the President has suffered from a case of libel nerves. Last week, he went after the New York Times with the tweet, “Change libel laws?” The question mark is significant. The Supreme Court’s New York Times v. Sullivan decision of 1964 famously protected journalists against libel actions.  But it protects politicians as well when they say harsh things about other public figures. Politico reported last week that Trump is hearing that he might be sued. Office holders would surely become large contributors to law firms in an attempt to protect themselves from defamation suits (especially if they were tweeters who did not weigh every word about public figures they dislike).

“Whose Line Is It Anyway?” was a game show that many will remember fondly. It had comforting rules: “Everything’s made up and the points don’t matter.” This is amusing but wrong in every respect when applied to politics. Holding all political actors to the law, and reminding them what they have to lose in dreaming up punishments for critics, matters tremendously. The age-old dispute between people in power and a press that would bring them to account, requires all the wisdom we can summon.  Authors Alliance, whose members share common values and diverse means of expression, must be ready to meet this challenge.

Authors Alliance Submits Comments on Moral Rights to the U.S. Copyright Office

Posted March 30, 2017
“Author from BL Harley 4425, f. 133” by Guillaume de Lorris and Jean de Meun is licensed under PDM 1.0

“Author from BL Harley 4425, f. 133” by Guillaume de Lorris and Jean de Meun is licensed under PDM 1.0

Today, Authors Alliance submitted comments in response to the U.S. Copyright Office’s study of moral rights. We support creators’ rights to integrity and attribution (subject to some limitations and exceptions that protect downstream creative reuse), and we believe that these non-economic authorial rights should be formally recognized in U.S. copyright law—as they are in many other countries. We also encourage the Copyright Office to consider recognizing other non-economic author rights, namely, the right to revive one’s work if it is no longer available commercially and the right to revise one’s work over time.

Hover over the document below to view in your browser, or download here. We will continue our series of posts on moral rights in the coming weeks and will keep our readers up to date on developments at the Copyright Office.

AuthorsAlliance_MoralRightsComment

A Nuanced Approach to Attribution and Integrity Rights

Posted March 28, 2017
“Author from BL Harley 4425, f. 133” by Guillaume de Lorris and Jean de Meun is licensed under PDM 1.0

“Author from BL Harley 4425, f. 133” by Guillaume de Lorris and Jean de Meun is licensed under PDM 1.0

Since our launch, Authors Alliance has endorsed the idea that Congress should extend statutory protections for attribution (the right of an author to be credited as the author of his or her work) and integrity (the right of an author to prevent prejudicial distortions of the work) as part of its copyright reform initiatives. In our Principles and Proposals for Copyright Reform, we wrote that the “law should recognize the right of authors to be acknowledged as creators of our works.”

Last week, Authors Alliance President Pamela Samuelson identified eight reasons why it is in the interest of authors as well as the public for authorial attribution and integrity to be statutorily recognized in U.S. copyright law. In this second post in our series on moral rights, we set out some additional contours for the scope of these rights.

Limitations and Exceptions

To prevent attribution and integrity rights from stifling onward creativity and speech, these rights should be carefully cabined through limitations and exceptions. Three of these limitations and exceptions are fair use, first sale, and “reasonableness.”

A Case For Recognizing Attribution and Integrity as Authorial Rights

Posted March 22, 2017

The following is a guest post by Authors Alliance President Pamela Samuelson. We welcome your comments as we continue to explore the topic of moral rights over the coming weeks.

In preparing Authors Alliance’s forthcoming comments in response to the Copyright Office’s Notice of Inquiry for its Study on the Moral Rights of Attribution and Integrity, I thought of eight reasons why it is in the interest of authors as well as the public for authorial attribution and integrity to be statutorily recognized in U.S. copyright law, as they are in the laws of virtually every other nation on earth.

First and foremost, many authors care deeply about having their names associated with the works they create and about their works being available to the public in the form in which their creators authorized dissemination. These authors experience lack of attribution and mutilation of their works as significantly injurious to their well-being.

Second, statutory recognition of attribution and integrity interests would send an important signal to the public about the respect that members of Congress have for the myriad contributions that authors make to the ongoing “progress of Science,” consonant with the constitutional clause under which Congress enacts copyright laws.

Third, recognition of authorship attribution and work integrity is in the public interest insofar as members of the public care about the authenticity of creative works with which they interact. Readers, viewers, and listeners want reassurance that the works to which they have access were created by specific individuals and have been vetted by the authors as the works authorized for public dissemination. For example, someone who has read several William Gibson novels and just purchased another will want to see Gibson’s name on the cover and be assured that the book just purchased is in the form the author wanted to reach his readers.

Fourth, being attributed as a work’s author and being able to control the integrity of one’s work is important to building and maintaining authorial reputations. Although it is often difficult to quantify the value to authors of reputation enhancement by virtue of public dissemination of their works, the value is real and meaningful to authors. It is indeed akin to the goodwill that firms build up over time associated with trademarks as the public comes to trust products or services bearing the protected mark.

Authors Alliance Supports Federal Funding for National Endowments

Posted March 16, 2017

When Authors Alliance launched in 2014, we announced that our mission would be “to further the public interest in facilitating widespread access to works of authorship by assisting and representing authors who want to disseminate knowledge and products of the imagination broadly.”

As an organization that advocates for the rights of authors and creators, we are shocked and saddened by the news that President Trump’s proposed federal budget for 2018, released earlier today, calls for a total elimination of the National Endowments for the Arts and Humanities. Although their share of the budget is vanishingly small, both programs support thousands of art, community, and cultural projects in all 50 states, and in every congressional district. The NEA in particular provides grants to support libraries, up-and-coming authors, new work, and small presses—all crucial to members of our creative community and to the overall health and well-being of a free and democratic society. The proposed cuts to these and other federal programs would hurt independent authors, creators, and the academic community, and impede the progress of the arts and sciences. Especially hard-hit will be thousands of creators in the heartland—the Midwest and the South—who have depended on these modest subsidies to enrich the cultural environment of their locales and enable them to sustain their creative work.

When the NEA and NEH were created by President Lyndon B. Johnson in 1965, the Act establishing the programs read in part: “The practice of art and the study of the humanities require constant dedication and devotion. While no government can call a great artist or scholar into existence, it is necessary and appropriate for the Federal Government to help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of this creative talent.”

Financial backing for cultural endeavors is often tenuous at best, but never before have the core assumptions about the inherent worth of the arts and humanities come under such vicious attack. We encourage our members and allies to resist this assault on the fundamental values that encourage and celebrate freedom of expression.

Resource Roundup: Fair Use

Posted March 8, 2017
 “"Rustam Lassos Rakhsh", Folio from a Shahnama (Book of Kings)” by Abu l Qasim Firdausi (935–1020) via The Metropolitan Museum of Art is licensed under CC0 1.0

“”Rustam Lassos Rakhsh”, Folio from a Shahnama (Book of Kings)” by Abu l Qasim Firdausi (935–1020)
via The Metropolitan Museum of Art, licensed under CC0 1.0

As many of our readers know, fair use is one of our favorite subjects here at Authors Alliance, and we enthusiastically joined with libraries and other like-minded organizations in the celebration of Fair Use Week last month. For this installment of our periodic Resource Roundup, we’ve compiled a collection of helpful online guides and tools on the subject of fair use. Although by no means comprehensive, we hope it will inspire you to explore and create using the incredible array of materials now available online!

Codes of Best Practices in Fair Use
Comprehensive guides for various creative communities from the Center for Media and Social Impact at American University

Fair Use Evaluator Tool
This step by step tool, created by the ALA, enables users to support and document their assertions of fair use

Fair Use Toolkit
A comprehensive collection from the ACRL of copyright and fair use tools and websites

Fair Use Week Resource List
Includes this year’s “Myths and Facts About Fair Use” infographic

U.S. Copyright Office Fair Use Index
A searchable database of legal opinions and fair use test cases

And, in case you missed it, here is a terrific new resource released last month that has no restrictions on reuse and remixing:

375,000 works from the Metropolitan Museum of Art, now freely available under CC0 license thanks to a partnership with Creative Commons

Got suggestions for other sites you depend on for quality content in your writing, teaching, or creative pursuits? Let us know, and we’ll feature them in a future Roundup!

Can Fair Uses Be Made of Copyrighted Works for Online Courses?

Posted February 23, 2017

fair-use-week-logo-sm

The following is a Fair Use Week guest post by Authors Alliance President Pamela Samuelson.

Faculty members who assign a few scholarly book chapters to their students for nonprofit educational purposes should be able to rely on fair use when posting them on course websites, according to the brief Authors Alliance filed in support of Georgia State University’s (GSU’s) fair use defense in the copyright lawsuit brought by Cambridge University Press (CUP).

GSU’s fair use defense was bolstered by various limits it put on the posting of copyrighted book chapters. Faculty members had to fill out fair use checklists, taking into consideration, among other things, whether the amount assigned was reasonable in light of the pedagogical purpose they had in assigning the materials. Only enrolled students could access the in-copyright materials, they could access them only through password-protected course reserves, and this access was only authorized during the term the students were enrolled in that class or seminar. For the most part, only one chapter per work was assigned. GSU faculty mostly used the online course websites for supplemental materials, having assigned readings from textbooks and other materials that students had to buy. The overwhelming majority of the chapters at issue were scholarly works written by academic authors on specialized topics used for small courses or seminars from works published a decade or more before. All of these factors supported the trial court’s fair use ruling.

The Authors Alliance brief explained that academic author incentives to write scholarly book chapters would, contrary to CUP’s claim, not be harmed and might well be enhanced by such uses of the chapters for GSU classes. Academic authors generally write scholarly book chapters to share the knowledge and insights they have attained with others and hope that publishing the chapters will enhance their reputations for contributions the authors made to their fields. In addition, publishers’ incentives to continue to publish scholarly books should not be harmed by the limited uses GSU faculty and students were making of the book chapters because publishers get the chapters for free and expect to derive revenues largely from sales of books.

The fair use calculus changes if course websites hosting such materials are open to the general public, if multiple chapters from the same book are utilized in online courses, if the chapters are from textbooks relevant to especially large enrollment classes, and if the online course is part of a for-profit enterprise.

This is not to say that such uses could not be fair, but faculty members would be well-advised to be more cautious in posting in-copyright materials, such as book chapters, on course websites under these circumstances.

Fortunately, the proliferation of scholarly articles and book chapters on pre-print servers in various fields, the adoption of open access policies by universities, leading foundations, and government granting agencies, and the greater willingness of publishers to agree to nonprofit educational uses or open access licenses means that there are many scholarly works available to be used for online courses these days. It is unfortunate for authors who assigned copyrights in book chapters or journal articles back in the days when pre-print servers and open access policies were not available that their works will be less widely read than they would wish, but it may be worth asking publishers to be willing to agree to at least limited nonprofit educational uses such as those being made by GSU faculty and students.

That being said, CUP has filed an appeal of the trial court’s findings of fact and conclusions of law that all but a few of the challenged GSU online course reserves uses were fair. Until the appellate court ruling comes down, one cannot be sure that GSU’s uses are fair. Still, the appellate court upheld much of what the trial court held about fair use the last time CUP ruled, and sent the case back for further proceedings under a somewhat revised framework that the appellate court spelled out. Because the trial court carefully followed that revised framework and made findings in line with the appellate court’s guidance, I am cautiously optimistic that the court of appeals will affirm.

For further reading on fair use, refer to the Fair Use FAQ on the Authors Alliance Resources page.

First Sale, Fair Use, and Digital Downloads:
Capitol Records v. ReDigi

Posted February 22, 2017

fair-use-week-logo-sm

In honor of Fair Use Week, we are delighted to feature this guest blog post from NYU Technology Law & Policy Clinic students Cassie Deskus and Kristen Iglesias discussing the role of fair use in the ReDigi case.

The Second Circuit will soon hear arguments in Capitol Records v. ReDigi, a case that will determine if and when consumers will be able to resell lawfully owned digital media. ReDigi provided an online marketplace for reselling music purchased from iTunes. ReDigi’s software allowed users to transfer music from their computer to ReDigi’s cloud servers, where it was offered for sale. Upon a subsequent sale, the software transferred the file to the buyer’s computer. The transfer process attempted to avoid copyright issues by employing strong verification safeguards and ensuring that there was only ever one full copy of the song in existence at any given time.

If ReDigi had been in the business of reselling physical CDs or books, resale would have been an uncontroversial application of first sale—a doctrine which permits the owner of any lawfully owned copy to dispose of that copy without restriction. The District Court, however, held that each song transfer was an unlawful reproduction, effectively preventing the owner of a digital work from reselling it. Unless the opinion is reversed, the only way consumers will ever be able to resell their digital music or books is to sell their entire digital device. In other words, to resell a $0.99 eBook you finished reading years ago, you’d have to sell your entire tablet and all of its contents!

This should be concerning to all creators of digital works. Without lawful resale, the “secondary markets” we enjoy in the physical sphere–libraries, used bookstores, garage sales, and even donations–cease to exist in the digital sphere. Not only will authors be unable to reach the same listeners and readers via digital publication that they might through analog publication, but those same listeners and readers won’t be able to easily share the digital works that they love.

That’s why the NYU Technology Law & Policy Clinic filed an amicus brief on behalf of over 20 copyright scholars, including several Authors Alliance members, arguing that any alleged unlawful reproductions are covered by either first sale or fair use.

As many Authors Alliance members know, the first factor of fair use is “the purpose and character of the use.” We argued that exercising a copy owner’s first sale rights, which have been recognized by courts and Congress for over one hundred years, is about as fair a purpose as can be. The public benefits resulting from digital secondary markets also favor this interpretation. The fact that ReDigi was a commercial enterprise does not change this outcome—indeed, many commercial uses of digital copyrighted works have been held to be fair use. ReDigi’s platform parallels secondary markets that have always existed in the physical realm; such markets are a testament to copyright law’s tolerance for, and accommodation of, robust resale rights. We hope that the Second Circuit reverses the lower court and preserves digital first sale, especially given the strong fair use arguments favoring ReDigi. If you’d like to read the rest of our argument, the entire brief is available here.