Category Archives: Blog

Q&A with Dr. Elizabeth Vercoe on Terminating Transfers of Copyright

Posted October 20, 2020
Photograph of Elizabeth Vercoe
photograph courtesy of Dr. Elizabeth Vercoe

Called “one of the most inventive composers working in America today” by The Washington Post, Dr. Elizabeth Vercoe has been a composer at the St. Petersburg Spring Music Festival in Russia, the Cité Internationale des Arts in Paris, and the MacDowell Colony. Her music is published by Noteworthy Sheet Music, Certosa Verlag (Germany), and Arsis Press and is recorded on the Owl, Centaur, Navona and Capstone labels. We recently sat down with Dr. Vercoe for a Q&A about her efforts to terminate the transfer of copyright to six of her nine early musical compositions published by Arsis Press, including Herstory II (1982).

Authors Alliance: Can you share why you were motivated to explore the possibility of terminating the transfers of copyrights for your works? What problem did you hope to solve?

Dr. Elizabeth Vercoe: As a composer of nine pieces published by Arsis Press, I was appalled when the successor publisher (Empire Publishing Services) ceased filling orders for our music and gave no notice or explanation for the apparent demise of the business. Because I was also a former associate editor of Arsis, I felt some responsibility for keeping the other composers informed and helping them in any way I could. We were unable to make copies of our own work legally since the press owned our copyrights, and we were unable to enter into recording contracts and other agreements without the consent of Empire. Moreover, Empire continued receiving half of our performance royalties from ASCAP and BMI while doing nothing for us. We were angry and upset at the injustice and decided to investigate what we could do about the situation.

AuAll: What steps did you take to initiate the termination of transfer process? Are there resources that you found particularly helpful?

EV: Initially we consulted several copyright lawyers to see what options were open to us to retrieve our copyrights. We were told that the lawyers could negotiate with Empire or they could facilitate copyright terminations for work eligible under current copyright law. On discovering the expense of even minimal action to negotiate with Empire or file copyright terminations for us, we were grateful that one attorney referred us to the website rightsback.org as a starting point for doing the work ourselves. We also studied the instructions for terminations on the Copyright Office website, pooled our information, and began helping each other with the paperwork.

We also spent a day at the Library of Congress looking through the 25 boxes of records of Arsis Press. The records were preserved by the library since the press is of historical interest as the first publisher in the U.S. devoted to women’s concert music. We hoped to find a contract between Arsis Press and the successor owner enumerating the terms of agreement. Unfortunately, we found no contract, and BMI was clear that it was obligated to continue to send half of our performance royalties to Empire.

AuAll: Do you have advice for other creators considering terminating their transfers of copyright? Are there things that policymakers could do to make copyright work better for creators?

EV: As a relatively naïve graduate student, I knew little or nothing about the risk of publication by a small press when Arsis Press began publishing my music. Someone could have suggested an additional sentence in a contract requiring that copyrights revert to the author if the press ceased doing business. If we had done this, we would have had some protection if the press failed. But nobody told any of the 40 composers published by Arsis Press that we should request such language in our contracts. I don’t think the founder of Arsis Press thought about this either or she would have insisted upon it. Organizations for composers like the Society of Composers and the International Alliance for Women in Music could help their members by providing guidance about such matters as could BMI and ASCAP.

“Orphan works” live in limbo after a press fails. Apparently, this is a massive problem for composers, film makers, and authors throughout the world as well as in the U.S. The Copyright Office has issued an extensive report about the matter that suggests solutions, primarily in the form of changes to the copyright law. However, the proposed copyright laws are themselves in limbo since Congress has not enacted the needed reforms. A future project could be organizing composers and authors to complain to their representatives in Congress about inaction on the proposed bill.

AuAll: Is there anything that you wish you knew prior to signing your early publication contracts, or that you would do differently today?

EV: Of course, we wish we had known how to protect our rights before signing contracts. All of us are now very wary of such agreements, but it is too late for the 140 works published by Arsis Press. In the case of the dozen composers in the catalog who are deceased, we know of only a few beneficiaries to fight their copyright battles for them. All we can do is proceed with copyright terminations for those works published 35 year ago or less in order to take advantage of the brief 5-year window allowed for such action under current law. But the process is complex and few of the composers are sufficiently persistent to jump over the hurdles required to file for terminations.

It is worth mentioning that there are some publishers who do not take ownership of copyrights for music in the first place. I am published by two of them: Certosa Verlag in Germany and Noteworthy Sheet Music in the U.S. Again, these are small presses like Arsis Press, but anyone published by them retains copyright ownership.

AuAll: When you do regain your rights, what do you hope to do with your musical compositions?

EV: Once my Arsis copyrights revert to me, I will either assign the music to the American Composers Alliance or publish with a company that allows me to retain the copyrights to my music. The ACA also has a legacy program that continues to keep one’s music available into the distant future, so at age 79 that is an attractive possibility for me as well.

* * *

We thank Dr. Vercoe for generously sharing her experiences and hope that her efforts inspire our members, readers, and allies to advocate for sound contract terms and to consider the options available—including termination of transfer and rights reversion—to ensure the long-term availability of their works. Authors can also consult the Authors Alliance/Creative Commons Termination of Transfer Tool at rightsback.org to learn more about termination of transfer.

For more about Dr. Vercoe’s experience with termination of transfers, we encourage readers to check out her article, The Perils of Publishing, in the Fall 2020 issue of the Journal of the International Alliance for Women in Music.

Judge Amy Coney Barrett’s Record on Copyright

Posted October 13, 2020
“President Trump Nominates Judge Amy Coney Barrett for Associate Justice of the U.S. Supreme Court” by The White House is marked with CC PDM 1.0

On October 12th, the Senate Judiciary committee began its discussion of the nomination of the Honorable Amy Coney Barrett to a seat on the U.S. Supreme Court. Prior to her nomination to the Court, Judge Barrett served as a judge in the 7th Circuit Court of Appeals after being nominated to that court by President Trump in 2017. While her three year tenure means there are few clues as to her views on intellectual property, three copyright decisions out of the 7th Circuit, for which Judge Barrett was one of three judges on a panel considering the cases, shed some light on how she might rule in copyright cases. With approximately 40 copyright petitions currently before the Supreme Court, the stakes are high for rights holders and policy makers. It should be noted that Judge Barrett did not write any of the below opinions herself, but participated in deliberations and joined each of them in full. While Judge Barrett’s nomination has been subject to controversy in some circles, there is reason to be optimistic about her views on copyright law.  

Rucker v. Fasano

Rucker v. Fasano was a case in which an author of an unpublished work alleged that an author of a similar published work had infringed her copyright. In 2010, author Kelly Rucker submitted a chapter and synopsis for a novel, The Promise of a Virgin, to a fiction contest sponsored by Harlequin Publishing, a popular trade publisher of romance novels. Then next year, Rucker learned she was not a finalist in the competition. Then, in 2013, Rucker found a book on Amazon entitled Reclaim My Heart written by defendant Donna Fasano. After purchasing a copy and reading the book, she discovered “several similarities between the plot of the novel and her work.” Both novels told “a tale of a wealthy teenage girl who falls in love with a boy of Native American heritage and becomes pregnant, before they are cruelly parted[,]” before “the lovers are reunited years later and . . . rekindle their fiery romance while their child explores his indigenous heritage with his father’s guidance.” Rucker believed that these similarities showed that Harlequin must have given her synopsis and sample chapter to Fasano, forming the basis for her copyright claim.

Ultimately, Rucker’s claim was found to be meritless. After a district court ruled in Fasano’s favor, finding that Reclaim My Heart did not infringe upon Rucker’s copyright in The Promise of a Virgin, Rucker appealed the ruling to the 7th Circuit. The district court had concluded that the novels “were not strikingly similar,” despite sharing some common themes, since “Rucker’s book was a ‘highly sexualized romance’ while Fasano’s was more of a ‘courtroom drama.'” The district court was also persuaded by the fact that Fasano finished a manuscript for a work that later became Reclaim My Heart in 2007—before Fasano began writing The Promise of a Virgin. Fasano also submitted a synopsis of the work to Harlequin in 2006, but her book was ultimately published by Amazon. 

In the 7th Circuit, a three judge panel including Judge Barett affirmed the district court’s holding, focusing on the impossibility of copying where Fasano’s book was written before Rucker’s and where there was not only no evidence of copying, but no possibility that Rucker could have copied Fasano’s work based on the timeline. The court stated summarily that given the factual record, “it is established that Fasano did not copy Rucker’s work,” without which “there can be no viable claim for copyright infringement.” Rucker’s claim that she “‘believe[d] upon reliable information’ that Fasano had access to the submissions to the Harlequin contest” was found to be insufficient to support an inference that this was the case. 

Vernon v. CBS Television Studios

In Vernon v. CBS Television Studios, writer Antonio Vernon sued several television networks for copyright infringement, alleging that they had stolen his idea for a television show called Cyber Police, for which Vernon had unsuccessfully submitted three scripts to a production company. Vernon alleged that a multitude of television shows on these networks including Intelligence, CSI: Cyber, and Cybergeddon infringed his copyright in Cyber Police based on the similarities between his work and these shows. After a district court dismissed his claims on grounds that his complaint was inadequate, Vernon appealed to the 7th Circuit. 

A three judge panel including Judge Barrett affirmed the district court’s dismissal of Vernon’s complaint. It found that the supposedly copied features of his work, such as “agents fighting cybercrime, ‘romantic strife,’ and ‘computer hijacking'” were “too common and standard to plausibly suggest that defendants’ shows were ‘substantially similar’ to his.” Such elements are known as scènes à faire—features standard to certain types of works, like marriages at the end of romantic comedies and shoot-outs in western films—and are as a rule not protected by copyright. In holding that there was no valid claim for infringement, the court underscored this principle and applied it to a relatively new type of work: technology-driven police television shows. This application of scènes à faire relaxes the threat of litigation for authors that seek to use familiar scenes and elements in their works, even when those scenes and elements involve new and emerging fields and technologies.

Sullivan v. Flora, Inc.

Sullivan v. Flora concerned the question of what constitutes a “work” for the purposes of a copyright infringement suit when the allegedly infringing materials consist of multiple images registered for copyright under a single application. While this may seem overly technical, there are wide-ranging implications for rights holders subject to meritless copyright claims.

In 2013, graphic artist Amy Sullivan entered into an agreement to produce original artwork for two informational videos for Flora, Inc., an herbal supplement company, though she retained the copyright in her work. Later that year, Sullivan discovered that Flora had used her artwork in promotional advertising, which the agreement between the parties did not authorize. Sullivan contacted Flora about the matter, and some of the images were removed from the promotional advertising materials. Sullivan proposed a licensing agreement whereby Flora could pay for the continued use of her artwork in the promotional materials. Flora refused, whereupon Sullivan filed suit. A jury ruled in Sullivan’s favor, finding Flora had infringed Sullivan’s copyright in 33 individual illustrations and awarding her $3.6 million in statutory damages. Flora then appealed the determination to the 7th Circuit.

One issue that loomed large in the litigation was the question of whether the 33 images used by Flora without proper authorization constituted a single work, or 33 separate works, for purposes of copyright. All the illustrations were registered on the same copyright application, but on the other hand they were separate, discrete illustrations. Because statutory damages in a copyright infringement lawsuit are calculated on the basis of the number of works infringed, the question had serious implications for Flora’s financial obligations but also for copyright claimants more broadly. This was the question before a three judge panel including Judge Barrett. The 7th Circuit considered, as a matter of first impression for that circuit, “what constitutes ‘one work’ in a fact pattern where a jury found infringement on multiple works registered in a single copyright application.”  The court held that this inquiry should ask whether the works have substantial independent economic value on an individual basis, or if the value lies in their compilation and relies on the presentation of all works in concert. This fact-sensitive analysis makes it more difficult for a copyright claimant to prevail on large damages awards based on infringement of multiple images where the images function as a compilation. After laying out this test, the court remanded the case to the district court for application of the proper analysis to Sullivan’s claim, vacating the $3.6 million damages award. 

Sullivan v. Flora is still ongoing—in early 2020, the parties submitted their briefs to the district court for the Western District of Wisconsin in support of their positions regarding damages.

Key Takeaways for Authors

While it is difficult to extrapolate a comprehensive view of copyright law from copyright decisions Judge Barrett participated in during her time in the 7th Circuit, a theme of skepticism of overbroad copyright claims and excessive damages emerges from these three decisions. In both Rucker v. Fasano and Vernon v. CBS, the court rejected copyright infringement claims based on tenuous similarities between two works, signaling that more is required than mere thematic similarity to prevail on a copyright infringement claim. Together, the cases make clear that a belief that a later work is simply too similar to the author’s own work alone cannot be the sole basis for a successful copyright claim in the 7th Circuit. 

Sullivan v. Flora also has important implications for authors, since the judges in the case demonstrated a concern about excessive damages in copyright actions. One of Authors Alliance’s founding principles is ensuring copyright’s remedies protect our members’ interests, and this decision serves as an obstacle for excessive damage awards in the 7th Circuit: a claimant must prevail on proving that each compiled work has independent economic value before being awarded damages based on multiple incidences of infringement: multi-million dollar awards like the plaintiff in that case received cannot be the default in such situations.

House Judiciary Committee Hears Testimony on Revisions to Section 512 of the Digital Millennium Copyright Act

Posted October 6, 2020
Photo by Louis Velazquez on Unsplash

On September 30th, the United States House of Representatives’ Judiciary Committee heard testimony from a variety of stakeholders regarding potential reforms to Section 512 of the Digital Millennium Copyright Act (“DMCA”), a law passed in 1998 which made reforms to U.S. Copyright Law. Section 512 provides for—among other things—a so-called “safe harbor” from copyright liability for online service providers (“OSPs”) that host user-generated content, provided those OSPs have a system in place that allows rights holders to request that infringing content be removed and follow other requirements outlined in the statute. This has given way to the current system of notice and takedown, whereby copyright holders formally request the removal of allegedly infringing content, and with which many who create, post, and access content online are all too familiar. 

Background

In May of this year, the Copyright Office released a report five years in the making, evaluating the effectiveness of Section 512. In the report, the Copyright Office concluded that the balance Congress sought to achieve in Section 512 is, in its view, “askew,” concluding that many creators are struggling to earn a livelihood in light of the pervasiveness of online infringement and the practical difficulties of having infringing content removed. 

Authors Alliance has written before about the issuance of the report, as well as the impact of Section 512 on non-infringing creators and universities and research libraries. While Authors Alliance embraces the underlying premise that Section 512—now more than 20 years old—is in need of updating to meet the demands of the modern information society, we believe reforms should focus on protecting creators’ interests in making their works available online. Last week, industry representatives, content creators, and policy advocates testified as to the advantages and challenges of Section 512 as it currently stands.

The Hearing

Six stakeholders testified at the hearing and provided additional written testimony: representatives from the Library Copyright Alliance, the Copyright Alliance, Public Knowledge, and the Computer & Communication Industry Association in addition to an individual singer-songwriter and a visual artist who is the leader of the PLUS Coalition. The hearing was polarizing, with two distinct ideological camps emerging, disagreeing both on whether reforms were needed to Section 512 as well as what reforms would address the various problems posed by the provision. On the one side, represented by the Library Copyright Alliance and Public Knowledge, witnesses expressed doubt about the Copyright Office’s conclusion that the “balance” Section 512 sought to achieve between facilitating free speech online and protecting copyrights is askew, tilting too far in favor of speech at copyright holders’ expense. Public Knowledge further proposed a need for reform in the opposite direction, i.e., making it more difficult to get allegedly infringing content removed, due to the current notice and takedown regime being over-broad as well as posing a threat to free speech online and the lawful fair use of others’ work. 

On the other side, the remaining witnesses argued that the current notice and takedown system hurts creators, who must vigilantly search for infringement online and request removal of infringing content through what they described as a highly burdensome “constant whack-a-mole” process which can require consulting legal counsel. They argued that this can result in less time for artistic endeavors and can compromise an already fragile income stream for creators. Both the visual musical artists testified that they had had such experiences. 

Members of the committee seemed similarly divided in their sympathies to the two camps. Some representatives expressed concern for the depressing effect that infringement could have on content creators’ income, and others focused on overzealous takedown notices and the negative impact that could have on add-on creators—such as YouTube personalities that rely on fair use to comment on culture—and internet users at large. 

Many of the stakeholders discussed whether technical solutions could go some of the way towards ameliorating the problems posed by Section 512, but disagreed over whether a technical solution was possible. Stakeholders and members of the committee emphasized the overwhelming amount of takedown notices the largest platforms like YouTube receive, as well as the imperfection of existing algorithms to correctly detect infringement on these platforms.  The representative from Public Knowledge echoed Authors Alliance’s concerns about the missing stakeholders at the hearing: internet users whose access to non-infringing content is disrupted when it is removed due to overzealous takedown notices as well as add-on creators whose speech is suppressed.

What’s Next?

Senate and House Committees are continuing to review the provisions of the Digital Millennium Copyright Act with an eye towards proposing reforms. We will keep readers informed about major developments. Recently, the Copyright Office also launched a new website on the DMCA and its key provisions, including Section 512. For more information, watch the full hearing and read written testimony on the House Judiciary Committee’s website. 

Authors Alliance Voices Concerns About the Copyright Small Claims Tribunal to Senate Committee

Posted September 30, 2020
U.S. Capitol
photo by Martin Falbisoner | CC BY-SA

Tomorrow, the Senate Judiciary Committee will consider S. 4632, the Online Content Policy Modernization Act, which would establish a small claims tribunal within the Copyright Office as an alternative to federal court for pursuing copyright claims. Authors Alliance has concerns with the provisions in the current draft.

As we’ve previously written, Authors Alliance supports reducing barriers to copyright enforcement for those with limited financial resources by providing a faster and cheaper avenue to remedies. Today, the high cost of litigation keeps many independent authors and other creators from enforcing their copyrights. A well-designed copyright small claims process could fix this but, unfortunately, the copyright small claims dispute provisions in S. 4632 invite abuse and pose a high likelihood of harm to authors as both claimants and respondents in the proposed tribunal.

To address problems with the current draft of S. 4632, we urge the Committee to:

  • Limit statutory damages to cases where it is impossible or cost prohibitive to prove actual damages and develop principles to guide awards of statutory damages;
  • Remove restrictions on the grounds for judicial review of the tribunal’s decisions;
  • Include additional safeguards to deter copyright trolls and preserve the utility of the small claims tribunal for independent authors and creators;
  • Require potential respondents to affirmatively opt-in to the small claims process; and
  • Narrow the jurisdiction of the small claims tribunal.

Read more about these recommendations in our letter to the Committee.

Independent authors and creators should have access to a low cost way to enforce their copyrights and vindicate their right to use others’ copyrighted works in lawful ways. We urge the Committee to modify the bill to better serve the creators it is intended to benefit.

Authors Alliance Congratulates Shira Perlmutter, New Register of Copyrights

Posted September 23, 2020
photo by Carol Highsmith | public domain

Authors Alliance congratulates Shira Perlmutter on her appointment as the Register of Copyrights and director of the U.S. Copyright Office.

Earlier this year, in response to the Librarian of Congress’ request for public input, Authors Alliance emphasized the importance of appointing a Register who is willing to take into account the diversity of viewpoints among creative communities. Ms. Perlmutter’s record gives us confidence that she will do just that by bringing an open-minded and balanced approach to her new role.

While at the U.S. Patent and Trademark Office, Ms. Perlmutter co-led a task force charged with consulting a wide range of stakeholders and drafting a White Paper on Remixes, First Sale, and Statutory Damages. The white paper recognized the importance of fair use in allowing remix culture to thrive, recommended amendments to the Copyright Act to address concerns with excessive and inconsistent statutory damages awards, and acknowledged library concerns with e-book licensing agreements. Ms. Perlmutter also co-led the U.S. delegation that negotiated the Marrakesh Treaty, which created a set of mandatory limitations and exceptions for the benefit of blind, visually impaired, and otherwise print disabled readers, helping authors’ works to reach a wider audience around the world in accessible forms. As a supporter of the importance of limitations and exceptions, statutory damages reform, and library lending practices, Authors Alliance is heartened that Ms. Perlmutter’s record reflects a nuanced consideration of stakeholder input.

We look forward to working with Ms. Perlmutter to promote a fair and balanced copyright ecosystem and to supporting the Office’s plans to modernize its registration and recordation infrastructure.

Appeals Court Affirms that Facts and “Asserted Truths” Are Not Protected by Copyright

Posted September 22, 2020
“Jersey Boys @ August Wilson Theatre on Broadway” by BroadwayTour.net is licensed under CC BY-SA 2.0

A recent decision from the Ninth Circuit Court of Appeals, Corbello v. Vali, may finally put to bed over a decade of litigation over alleged copyright infringement in the hit Broadway musical, Jersey Boys. The play depicts the history of the musical quartet, Four Seasons, which rose to prominence in the 1960s. The Ninth Circuit held that historical facts—even those which an author later claims are untrue—are not entitled to copyright protection, and cannot form the basis of a successful copyright infringement claim. The decision provides substantial clarity for authors wishing to use historical facts from other works in their own later works, and affirms that facts are not copyrightable—full stop. 

Background

The case concerned several alleged similarities between Jersey Boys and an unpublished autobiography written by Four Seasons member Tommy DeVito and a ghostwriter, Rex Woodward. The autobiography purported to be a “straightforward historical account,” and describes itself at the outset as the “complete and truthful chronicle of the Four Seasons,” narrated by DeVito. The work was completed in 1991, but Woodward died shortly thereafter, and DeVito and Donna Corbello—Woodward’s widow and the plaintiff in the case—were unable to find a publisher for the work. 

In 2005, Jersey Boys debuted on Broadway, where it ran for 12 years. The musical also toured North America and the United Kingdom several times and won four Tony awards—by all accounts a huge success. Corbello believed that the success of Jersey Boys could lead to increased interest in the band, and in 2007, sought to confirm the copyright registration for the unpublished autobiography, but discovered that the copyright for the work had been erroneously registered in DeVito’s name only. After re-registering the copyright for the autobiography in both authors’ names, Corbello learned that the play’s writers were given access to the work to use in their research.

In 2007, Corbello sued DeVito for breach of contract, various forms of copyright infringement, equitable accounting, and other causes of action. After multiple proceedings, the case proceeded to trial, where the jury found that Jersey Boys infringed the unpublished autobiography and that 10% of the play’s success was attributable to the autobiography.  However, the district court subsequently found that Jersey Boys’ use of the copyrightable portions of the autobiography was fair use—a doctrine which allows creators to use brief portions of copyrighted works without permission or payment for certain purposes, such as criticism, news reporting, or parody. Unsatisfied with this finding, Corbello appealed to the Ninth Circuit, which heard the case in June 2019.

The Decision

In a decision by Circuit Judge Marsha Berzon, the court rejected Corbello’s argument that the similarities between the Jersey Boys and the autobiography infringed Corbello’s copyright in the autobiography, overturning the jury’s finding of infringement altogether without discussing whether fair use would have applied. This was because each of the elements that the Jersey Boys creators took from the autobiography were historical events and facts, which are not protected by copyright—a basic tenet of copyright law. 

The court examined in detail each of the alleged similarities between the autobiography and the play—including certain dialogue, origins of Four Seasons songs, and the occurrence of a particularly raucous party—and concluded that the similarities were due to the use of the same historical facts in both works. In some cases, the similarity was even based on a well-known event that DeVito had recounted elsewhere, such as a staged murder in one of the band member’s cars. The court concluded that each similarity between the two works was based on historical facts as well as shared common phrases and what are known scènes-à-faire—ideas and scenes that are standard in the treatment of a certain topic, such as a shoot-out in a western film.

“Asserted Truths”

Judge Berzon rejected Corbello’s argument that because some of the facts Jersey Boys took from the autobiography were apparently fabricated by DeVito, those should be entitled to copyright protection as non-factual creative expression. In what it called the “asserted truths doctrine” (known as “copyright estoppel” in other jurisdictions), the court stated that where a text represents itself as historically accurate—and therefore factual in nature—the copyright holder cannot later claim that the work was fictionalized in order to obtain copyright protection. 

The court examined both the text of the autobiography and the manner in which it was submitted to publishers and found it was represented as fact: the work explicitly represented itself as factual, and pitch letters emphasized that the autobiography would disclose “the truth” about several events and reveal “the secret past that the performers successfully hid for almost three decades.” The fact that Corbello now claimed that some elements of the autobiography were fictionalized or inaccurate and that these same elements were present in the play did not change the court’s analysis: what matters is how the text is presented, not how it is later characterized by the copyright holder. 

Finally, the court rejected the argument that the “asserted truth doctrine” did not apply to an unpublished work, finding that regardless of whether the audience for the work is “a few actual readers” (for unpublished works) or “the general public,” the representations of truthfulness determine the factual nature of the work for purposes of copyright protection. It is thus the apparent nature of the work—in this case, a factual autobiography—and not whether it is in fact fully accurate or factual, that determines whether it is entitled to copyright protection, or unprotected as factual in nature.

Implications for Authors

This decision clarifies the bounds of unprotected facts under copyright law and simplifies the process a court must undertake to determine whether allegedly infringing uses are factual in nature, or events recounted actually happened—it need only look to the work itself to see if it represents itself as factual. It also underscores the important point that facts are not protected by copyright law, and makes it easier for creators to use facts from other works in their own works without fear of copyright liability. The decision serves as an obstacle for those who seek to bring copyright infringement suits based solely on factual information, strengthening protections for authors who seek to use facts present in copyrighted works to contribute knowledge and scholarship to their communities. It also makes clear that these creators will not be held liable for using factual information from other works that later turns out to be untrue, further easing the threat of copyright liability when nonfiction works are relied upon as accurate.

Authors Alliance Welcomes Staff Attorney Rachel Brooke

Posted September 16, 2020

We are thrilled to announce that Rachel Brooke has joined Authors Alliance in the role of staff attorney.

Rachel Brooke comes to Authors Alliance from The Center for Investigative Reporting, where she served as the inaugural First Amendment Fellow. In this role, she appealed and litigated Freedom of Information Act requests, advised on access-related issues, and provided other legal support to a bustling newsroom. Prior to attending law school, she worked as a literary agent in a small New York City agency.

Rachel holds a J.D. from NYU School of Law and is licensed to practice law in California.

“I’m excited to join the team at Authors Alliance and use my legal skills and publishing background to support authors and advocate for policies that balance knowledge-sharing and the enjoyment of rights,” says Rachel.

Rachel’s passion for serving authors will be a tremendous boon as we advance our mission by continuing to develop educational resources and advocating on behalf of authors who write to be read. We look forward to introducing Rachel to the Authors Alliance community!

Authors Alliance Petitions for New Exemption to Section 1201 of the DMCA to enable Text and Data Mining Research

Posted September 8, 2020
Photo by Andrew Buchanan on Unsplash

Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, filed a petition with the Copyright Office for a new three-year exemption to the DMCA as part of the Copyright Office’s eighth triennial rulemaking process. Our proposed exemption would allow researchers to bypass DRM measures in order to conduct text and data mining research on both literary works that are published electronically and motion pictures. Further details can be found in the full text of the petition, available here.

Text and data mining allows researchers and others to gain new insights into language and culture, scientific inquiry, and civic participation. For example, text and data mining can be used to examine the evolution of language over time or to identify important but overlooked findings in scientific papers.

While the possibilities of text and data mining are great, researchers face limitations in their ability to use the technique. They must either rely on collections of works created by others, which may be missing important, relevant works, or they must build their own collections, a prohibitively time-consuming process in which researchers manually scan printed books or capture video playback in real time.

Authors Alliance believes that researchers building their own collections of works should be able to bypass DRM measures to extract data directly from sources such as eBooks and DVDs. The DMCA prohibits such circumvention, even if the intended use would not infringe anyone’s intellectual property rights. If this exemption is granted, researchers will be empowered to build relevant collections and conduct this important research.

How you can help

Historically, the Copyright Office has scrutinized the factual record when deciding what exemptions ought to be granted. Assuming the Copyright Office considers our exemption request, we will need to make a more detailed submission to the Copyright Office later this year that fully sets out the legal and factual basis for the exemption. If your research has been impacted by the inability to access electronically published literary works or motion pictures, we want to hear from you. Please reach out to us at info@authorsalliance.org and share your story.

Authors Alliance is grateful to Clinic students Jason Francis and Alistair McIntyre, supervised by Clinic Director Catherine Crump and Teaching Fellow Gabrielle Daley, at the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law for their assistance filing this petition and for this blog post.

Shaping Your Publication Contract to Meet Your Goals: Part 2

Posted September 1, 2020
Shelf with colorful books and Authors Alliance logo on blue background

Book publication contracts deserve careful attention because their terms control the rights and obligations of authors and publishers for the life of the relationship between the parties, which can potentially last for decades. Our guide to Understanding and Negotiating Book Publication Contracts helps authors to understand common clauses in publication contracts, recognize how the terms might affect their goals for their books, and negotiate for author-friendly variations of those terms.

In this two-part series, we apply the lessons from our guide to real-life contract terms and illustrate how authors can consider the implications of contract terms and formulate author-friendly variations that advance their interests. This second post covers options, non-competes, the look and feel of a work, and assignment of the agreement. To read the first post addressing grant of rights clauses, subsidiary rights, and rights reversion, click here.

Future Works: Options

Sample Term: “Author agrees that it will offer Publisher the first right to publish Author’s next work […] on the same terms and conditions as those contained herein […].”

Why it could be problematic: The term above could be problematic because it doesn’t give the author the opportunity to decline the publisher’s offer, purporting to lock the author into working with the publisher on his next book. It also could be problematic because it says that the second book’s contract will have the same terms as the first book’s contract. This could be bad for an author whose first book is wildly successful and who may attract an offer of higher royalties for the second book, but must accept the royalty rates agreed upon in the contract for the first book. (Of course, the opposite could be true: the performance of an author’s first book could mean that the terms offered for a second deal may be lower than those offered for the original deal: But this clause doesn’t help with that situation, either, as it gives the publisher the right but not the obligation to publish the author’s next work.)

How to make it better: Options clauses can be softened in a number of ways. For example, authors can limit the definition of the “next work” for which the publisher’s option applies to something closely related to the original work (such as the next book in a series), and authors can even include a right to refuse the publisher’s offer. For more information on options clauses, see pages 131-134 of Understanding and Negotiating Book Publication Contracts.

Future Works: Non-Competes

Sample Term: “The Author agrees that during the term of this Agreement the Author will not, without the Publisher’s prior written consent, participate in the preparation or publication of, or otherwise be interested in or connected with matter that may, in the Publisher’s judgment, conflict or compete with the sale of the Work.”

Why it could be problematic: “Non-compete” clauses can be problematic because they can prevent the author from publishing any books that are of a similar character, ignoring that some authors may write exclusively on a niche topic, for example, because it’s their area of study as a scholar. This term is especially concerning because it explicitly leaves the decision of whether another book by an author will compete with the contracted book at the complete discretion of the publisher.

How to make it better: Ideally, an author will avoid agreeing to a non-compete clause in their contract at all. But publishers may feel strongly about protecting their investment in publishing the author’s book, and don’t want sales to be undermined by competing books. This term could be made better by instead using the phrase, “may reasonably be expected to interfere with the sale of the work” instead of being at the publisher’s sole discretion. And as the term of the agreement can be for a very long time, another improvement is to put a time limit for how long the author must refrain from publishing competing works, such as for one year after the contracted book’s publication. For more information on non-compete clauses, see pages 137-141 of Understanding and Negotiating Book Publication Contracts.

Look and Feel

Sample Term: “The [Publisher] shall have entire control of such production and publication in all forms and media. The paper, printing, binding, title, design, jacket and/or cover […] shall be in the [Publisher’s] sole discretion.”

Why it could be problematic: Typically, authors hand over the manuscript to the publisher and the publisher takes care of the “business” end of actually producing, distributing, and helping with the marketing of the book. However, some authors may want to have at least some input over the “look and feel” of their book. The term above gives total control to the publisher, regardless of how the author may feel about the publisher’s decisions.

How to make it better: If an author is concerned about having no say whatsoever in the look and feel of her book, she can negotiate for the publisher to agree to at least consult with her to get her opinions, or even get a right of approval about things like the design, jacket, and cover of her book. For example, if the publisher presents a book cover that the author loathes, the author can express that opinion and maybe veto the cover. That said, it is important for authors to remember that a publishers’ business is to sell books, and that publishers rely on their extensive experience in how to best accomplish that goal. To learn more about negotiation options for the look and feel of a book, review pages 153-57 of Understanding and Negotiating Book Publication Contracts.

Assignment of Agreement

Sample Term: “The Publisher shall have the right, without approval of the Author, to assign this Agreement.”

Why it could be problematic: Assignment is when a party to the contract (here, the publisher) gives all of their rights and obligations in the contract to someone else. Typically, publication contracts restrict an author’s ability to assign a contract without the publisher’s permission. This is unsurprising—after all, authors are individual people with particular skills, styles, and ideas, and the publisher contracted to work with that specific author. The potential problem with the term above is that the publisher can assign the contract without the author’s approval, meaning that the author has no influence whatsoever on who a future publisher may be. If the author chose the publisher because it’s prestigious, for example, but the publisher wants to assign the contract to a less prestigious publishing house, then the author will probably want to veto the transfer. But the contract says the publisher can assign the agreement no matter how the author feels.

How to make the term better: Ideally, the term will say that the publisher cannot assign the agreement without the consent of the author, though it is likely that the publisher will insist that consent cannot be unreasonably withheld. But this still gives the author the opportunity to consider the deal and the ability to reject the assignment for valid reasons, and balances control because the author must have a reasonable justification for vetoing an assignment. To learn more, check out pages 244-49 of Understanding and Negotiating Book Publication Contracts.

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The examples of covered in this series are just that—examples. Every contract looks a little different, depending on the kind of publisher and the kind of book. While this two-part series on book publication contracts has covered some of the most common terms used in contracts, there are many more that may appear, such as outlining royalty rates or marketing terms. For a deeper dive into contract terms and options for negotiation, be sure to check out Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts.

Authors Alliance is grateful to Diana Buck, Copyright Intern, for researching and drafting this post.

Alison Mudditt and MacKenzie Smith Join the Authors Alliance Board of Directors

Posted August 25, 2020

Authors Alliance is pleased to welcome Alison Mudditt and MacKenzie Smith to our Board of Directors. Alison and MacKenzie join Carla Hesse, Thomas Leonard, Jeffrey MacKie-Mason, Pamela Samuelson, and Molly Van Houweling in guiding the strategic decisions and activities of Authors Alliance.

Alison Mudditt is the CEO of the Public Library of Science (PLOS), where her primary role is to ensure PLOS’s continuous innovation, bold leadership, and mission-driven differentiation in the field of scientific communication. Prior to PLOS, Alison served as Director of the University of California Press where she ushered in new strategies to lead the company into the digital age, including the innovative journal and monograph Open Access programs Collabra and Luminos. Alison’s 30 years in the publishing industry also include leadership positions at SAGE Publications, Blackwell Publishers, and Taylor & Francis.

“The Authors Alliance has been doing critical work at both a policy and a pragmatic level to help authors share their works widely to benefit us all,” says Mudditt. “I’m delighted to be joining the Board and supporting their mission at a time when the importance of open and equitable access to knowledge and creativity couldn’t be more important.”

MacKenzie Smith is the University Librarian and Vice Provost of Digital Scholarship at UC Davis. As one of the nation’s leading experts in digital libraries, MacKenzie has defined and implemented a strategic framework and organizational design that integrates digital resources and information technology with traditional library services to better serve the UC Davis academic community. Prior to her role at UC Davis, MacKenzie spent nearly three decades on the East Coast working at the libraries of Harvard University and the Massachusetts Institute of Technology.

“Publishing is a very complex business that is changing rapidly in the digital age so it’s critical for academic authors to have a voice,” notes Smith. “I’m delighted to work with the Authors Alliance on these issues, from the perspective of academic research libraries that are also experiencing a rapid shift to digital. The Authors Alliance is an important ally in ensuring that publishing and scholarly communication continue to be effective for research and education.”

Alison and MacKenzie’s extensive knowledge and experience in scholarly communication, publishing, and authorship for the public good will be a tremendous asset to the Authors Alliance Board. We look forward to working with Alison and MacKenzie to advance our mission.