Category Archives: Managing Authors’ Rights

Creative Commons Summit Builds Momentum for Strengthening Author Rights

Posted May 8, 2018

We would like to thank Creative Commons General Counsel Diane Peters for contributing the following post, which originally appeared on the Creative Commons blog on May 7 under a CC-BY license.


The Creative Commons 2018 Global Summit in Toronto brought together a diverse group of stakeholders to explore strategies for increasing author choices for managing their copyright, and included the announcement of the new Creative Commons Rights Back Resource (beta) that will provide authors worldwide with information about how to regain copyright previously assigned away.

To facilitate momentum on the tool, Creative Commons, SPARC Europe and Authors Alliance convened an in-depth workshop involving more than 60 attendees focused on Giving Authors Control: How to Retain and Regain Your Copyright.

sparc-europeVanessa Proudman, Director of SPARC Europe, framed the workshop looking at the current context, goals and challenges with rights management. She shared ten prerequisites for making open the default, and talked of how the community might best enable open for academics and readers. Among other highlights, she provided an overview of funder and government mandates for open access and identified key goals and challenges to enable open.

authors-allianceBrianna Schofield, Executive Director of Authors Alliance, highlighted and explained existing legal tools that help authors make sound publication decisions and regain control of their works, sharing thoughts on the value of doing so in support of authors making their works available in the ways they want. She explained the complicated nature of termination rights that authors have in the United States and resources that Creative Commons and Authors Alliance have developed to help them navigate those provisions. Michael Wolfe, formerly of Authors Alliance and now at the University of California, Davis, gave a live demonstration of how the www.rightsback.org termination of transfer tool can help authors determine whether they have reversionary rights.

Creative Commons logoDiane Peters, General Counsel of Creative Commons, described CC’s work in open access in support of a more vibrant and usable commons. She focused on work, generously funded by Arcadia, a charitable fund of Lisbet Rausing and Peter Baldwin, to develop improved authors addenda that authors can use to retain some rights to their scholarly articles when submitting to traditional, non-OA publishers. She also announced the launch of a new legal tool under development and funded by Arcadia, the Rights Back Resource (beta). Authors and those who support them, such as librarians, will be able to consult the resource to understand reversionary and termination rights around the world.

Session attendees then broke into three working groups to conduct deep dives, exploring three important areas: knowledge gaps and what authors should know if they want to help change current open access practices by retaining rights; existing and future advocacy tools and campaigns that can affect real change in the OA ecosystem; and strategies for overcoming publisher obstacles to author tools. A complete list of resources, speaker presentations, and notes from the breakout working groups may be found here.

WHAT’S NEXT

The three organizations plan to continue coordinating their respective efforts on new and existing legal tools, outreach, education and advocacy. This will include focusing on tangible ways to push ahead on ideas generated during the CC Summit session.

Creative Commons also welcomes contributions to the new international Rights Back Resource (beta). We need experts to identify and contribute information about reversionary and termination rights around the world. Our goal is provide a comprehensive resource where authors can learn about rights they may have to retake control over publication rights to their works that they previously assigned away. Please join CC in this effort and contribute information here.

We are also working on updates to the Scholars Copyright Addendum Engine and the addenda templates found there. An open questionnaire will be published soon with the goal of learning more about the needs and preferred terms of addenda to be used by scholars, authors and academics.

Thank you to everyone who participated in our Summit session! We look forward to seeing your contributions.

Rights Reversion Success Story: Jessamyn West

Posted April 17, 2018

Headshot of Jessamyn WestAs part of our occasional Q&A series on alternative publishing models, we talked with librarian extraordinaire Jessamyn West, who successfully reverted rights to her book Without A Net, and released it under a CC-BY license on unglue.it, a website that uses crowdfunding to support the release of e-books that are made freely available by a variety of rightsholders.

Authors Alliance: Why did you decide to make Without a Net freely available, and how did you decide to use unglue.it to achieve this goal?

Jessamyn West: When I wrote Without A Net in 2011, I was a reluctant author. I like to share my writing as widely as possible, but sometimes it’s hard to tell if the best way to do that is through a major publisher or by reducing barriers (i.e., costs) to access. While I adored my editor, I had a frustrating experience with my publisher—a lot of pushback on minor issues, a lot of extra work on my part for a product where I was ultimately not the primary beneficiary—and would not choose to publish this way again.

I wanted to make the book available, but did not really know or understand the process of getting my rights “back” from the publisher. I’d known people who did it in one way or another, but had always assumed, somehow, that it was prohibitively expensive or would involve arguments or lawyers.

I’ve always been a fan of opening up access (my work with the Internet Archive’s Open Library project was primarily geared towards this), and when Eric [Hellman, unglue.it’s founder] approached me to try out Unglue.it, I was excited to help out. It combined my two loves, which are (1) open access, and (2) improving user experience design for community tech tools. I was pleased with how it all worked.

When I worked with the Authors Alliance to help authors share their books on Open Library I got more interested in finding a way to do this with my book. In conversation with Eric Hellman, whom I’ve known through library circles since the early library blogger days, I learned that it wouldn’t be as expensive as I’d previously thought. So I figured, “Hey, what the heck?”

AuAll: Can you walk us through the process of regaining rights from your publisher in order to make the book openly available?

JW: It was so simple! I just sent them an email saying, “Hey, I’d like to do this,” and they said, “OK, it costs $2,000.” We had to do a little bit of back and forth since they had to send me an official contract for all of this, but the bottom line is they are a business, my book was seven years old and not really all that current, and this was just another (good) business deal for them. The hardest part of the whole thing was obtaining an EPUB version. When they made a digital version of the book, it was just a PDF and they sent the book away to an ebook jobber to make the Kindle version. So they didn’t have an EPUB version to give me, and Eric had to do the EPUB creation on his own which was, honestly, probably the most difficult part of the whole thing. EPUB creation is challenging to do right.

AuAll: How did you decide which Creative Commons license to apply?

JW: I opted for the least restrictive I could be without putting it in the public domain, so it’s CC-BY. I wanted my name to stay attached to it, but I didn’t care if people remixed it, sold it, whatever. This took a little bit of thinking on my part, because we’ve all seen publishers who basically repackage public domain materials and sell them to people who are not savvy enough to realize they can get the same content for free . I dislike this, but I didn’t feel like it was my crusade with this particular activity. I also think there is a good argument to be made for CC BY-SA (a share alike) license, just to pay it forward, but again I feel like I was working with digitally divided folks and I wanted the license restrictions to be as easy to understand as possible.

AuAll: Is there anything that surprised you, or that you wish you’d known before you started?

JW: I tend to dive in first and read the fine print later. While it only cost $2,000 to get the rights from my publisher, there were some ancillary costs (sending out “premiums,” cash processing fees, etc, associated with the unglue.it crowdfunding model) that added up that I should have taken into account as part of this process. I had a very supportive community behind me, and could have crowdsourced more of the associated expenses if I had been more deliberate on how I went about it. I was also somewhat surprised how little my publisher cared, which made me feel better about severing my business relationship with them. Not that I had negative feelings about them, but their primary concern is money and not helping ease the digital divide. I’m the opposite, so this approach made sense for me.

AuAll: Have you received any feedback from readers who have benefited from finding your book online?

JW: Most of the people I have heard from are people who were involved in the process, people who helped support it or people who helped me go through this process. I feel in some ways like we’re in an age of aspirational texts. People like having books around “just in case,” or because they’re interested in the topic, and they’re certainly easy to accumulate, but I haven’t heard from anyone who has actually READ the book recently, though I’d certainly like to.

AuAll: Do you have any words of wisdom for other authors who are thinking of “ungluing” or otherwise making their books available under a Creative Commons license?

JW: I am happier not worrying if it’s going to be okay for me to send a PDF of my own book to someone who asks me about something in it. My book came out in 2011 in the same week my father died suddenly, so I was sufficiently distracted that I didn’t really give it the send-off that it deserved. This gave me a second chance to make a modest big deal about the work that I’d done and the ideas that I was hoping to spread, and I was glad I got a chance to do that. Eric was an incredibly engaged and helpful steward of this entire process, so if someone is thinking “I’d like to do this, but how?” I strongly urge them to get in touch with him.

Jessamyn West is a librarian and community technologist who lives in Central Vermont.

 

Readers And Book Markets Benefit From Authors Reclaiming Their Rights

Posted April 3, 2018

Headshot of Paul HealdThe following guest post by Paul Heald describes his recent analysis of the beneficial effect of rights reversion and termination of transfer in the traditional and ebook markets. Heald is the Richard W. and Marie L. Corman Professor of Law at the University of Illinois. He is also a fellow and associated researcher at CREATe, the RCUK Centre for Copyright and New Business Models in the Creative Economy, based at the University of Glasgow. His recent publications have focused on economic aspects of the public domain, patents, studies of best-selling fiction and musical compositions, and the behavior of famous trademarks in product and service markets. In addition to his scholarly work, Heald has published three novels.

Authors Alliance has been encouraging authors to recapture their copyrights in order to “free up” their works for new uses and wider distributions, either with new publishers or through online postings under Creative Commons licenses. Authors do benefit from rights reversions, but a recent empirical study, “Copyright Reversion to Authors (and the Rosetta Effect): An Empirical Study of Reappearing Books” shows that consumers of books are likely to experience a significant benefit from author rights reclaimings as well.

In my sample of 1,909 book titles, between 20-23% appear to be in print only because of rights reversion.

Here’s a reminder of the four ways that authors who have assigned their rights to a publisher can get back their copyrights:

1)  Ask the publisher nicely (always an option, and for help with this, see the Authors Alliance guide to rights reversions);

2)  File a notice to terminate an author’s prior transfer of rights under section 304 of the Copyright Act (a right which arises 56 or 75 years after publication for a work first published between 1923-77);

3)  File a notice to terminate an author’s prior transfer of rights under section 203 of the Copyright Act (a right which arises 35 years after the transfer of a work first published after Jan 1, 1978)  (for help with this, see the Authors Alliance/Creative Commons Termination of Transfer Tool at rightsback.org);

4) Exploit a key limit on grants under pre-digital era publishing contracts that did not effectively assign ebooks rights (a contract that merely assigns all rights to a work “in book form” does not effectively transfer ebook rights).

Authorial assertion of ebook rights under this fourth option is known as the Rosetta Effect, after a famous case which worked a surprise de facto “reversion” of ebooks rights to authors in 2002.

My study was undertaken to test the claim that a change in the ownership of copyright in a work from original publisher back to an author (or her estate) might lead to the better dissemination of out-of-print or otherwise commercially inactive works. The study focused on the availability of more than 1,909 new editions of books that had been at one time New York Times (NYT) bestsellers, titles by NYT bestselling authors (whether the book was a bestseller or not), and books reviewed in the NYT Book Review.

A close analysis of the identity of current publishers of older titles shows that the recapture of author copyrights through the termination rights of sections 203 and 304, along with author retention of ebook rights under Random House v. Rosetta Books (2002), have significantly increased the availability of book titles to consumers.

The data reveal a market for reverted books that is exploited by independent publishers. The most active, Open Road Media, describes its business model on its web site: “We are committed to bringing back the backlist, making reverted titles and works that have never been converted to digital format widely available as ebooks….This program is for authors whose rights have reverted, whose titles have not previously been digitized, or who are looking to have their works available as ebooks.”

One can see Rosetta at work in the first chart below and the effect of section 203 in the second chart. Both charts list the publishers of ebooks (“e”), bound volumes (“b”), and both ebook and bound versions of a title (“e/b”). Original publishers, almost all well-known traditional publishers, are denominated PUB, while new independent publishers like Open Road, are denominated IND.

None of the bestsellers in the chart above are yet eligible for termination, so in theory, all of the copyrights are still controlled by the original publishers, who seem only interested in keeping approximately 66% of the titles in print (other sub-samples of older bestsellers show original publishers keeping as few as 12% of titles in print).

What explains the 18% additional titles offered by new independent publishers? The 16% of titles available only as ebooks are most likely due to the holding in Rosetta which gave many (but hardly all) authors the chance to control digital (but not bound) versions of their works.  Beneficiaries of the ruling can partner with a new, sometimes digital-only press, to make their works available.

A look at reversion eligible books from the same era tells an additional story about the effects on availability based on section 203 termination rights:

All the works are termination eligible, but original publishers have decided to exploit about half of their older titles. (What author says “no” when Random House asks to make her out-of-print bestseller available in a new edition?) One sees reversion at work in the 9% of books offered by new independent publishers in both ebook and bound versions. The 22% available as ebooks only would seem to be in print as a result of Rosetta or of the termination threat of section 203. It’s hard to know which. But in any event, the good news is that more books are becoming more available through authorial reclaiming of rights and making new arrangements to publish them (a whopping 31%  in this sample!)

The full paper, which is available here, analyzes a number of different data sets and provides an appendix of rights reversion schemes around the world. The paper also notes that few authors bother making a formal termination filing with the U.S. Copyright Office (they should!). The sending of a termination notice to a publisher, or the looming likelihood of termination, seems to be enough to create this new market being exploited by independent publishers. The story in the U.S. seems fairly clear: Rosetta and the availability of termination under section 203 and 304 are helping bring older works back into print. It is less easy to track individual author rights reversions through asking publishers for rights, but the experiences of numerous Authors Alliance members in reclaiming copyrights in this manner suggest that this option should be more widely used and recognized.

Rights Reversion Success Story: Dale Cannon

Posted March 27, 2018

Photo of Dale CannonDale Cannon is Professor Emeritus of philosophy and comparative religion at Western Oregon University. In March of 2017, he reverted rights to his religious studies textbook, Six Ways of Being Religious and made the book available under a Creative Commons CC-BY-NC license in Western Oregon Library’s Digital Commons open access repository. During the past year, the book has been downloaded nearly 600 times. Professor Cannon shared his rights reversion experience for us in the following Q&A.

Authors Alliance: How did you first learn of rights reversion?

Dale Cannon: I first learned of rights reversion at a workshop/conference I attended for textbook authors the year after my book was published (1996).  It was all new to me.  The one thing that particularly stood out was the claim that absolutely none of the polished contract that I had received from Cengage Learning (at the time it was operating under the name Wadsworth Publishing) was “written in stone;” every word of the contract had been open to negotiation. (That, of course, doesn’t mean that Cengage would have readily accepted a rights reversion clause that favored my interests.)  About such matters I was completely naïve when I signed the contract.

I believed at the time that Cengage/Wadsworth was the best publisher I could have secured, as they had a track record of publishing several books closely related to the orientation and content of my book, and their publishing campaigns for those books seemed ideal.  So I’m skeptical that I would have had much leverage to get them to include a rights reversion clause, especially one favoring my interests.

AuAll: What motivated you to request your rights back?

DC: Several factors motivated my request.  One is that the book wasn’t selling well, due to a failure on Cengage’s part to mount a major sales campaign (as had been promised by my editor, who left the company shortly after the contract was signed).  The editor subsequently assigned to my book had no interest in books on religious studies and ignored the previous editor’s enthusiasm and promises.  On top of that, the original price of about $27.00 had long since been left behind and was 3 and 4 times that by the early years of the 21st century.  But I was very interested in having the book become better known and more widely used in university classrooms.  It wasn’t simply a textbook in the comparative study of religions; it was distinctly different and broke new creative ground in the theory of religions.

I have since learned more about self-publishing and how attitudes among academics toward self-publishing have changed a lot and become much more positive.  Of course, I could not consider any such option until I had rights reverted to me.

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

DC: I simply wrote to the editor (14 years after publication) requesting reversion of rights, explaining how sales had been very low for quite some time (especially for a textbook), with no prospect of that changing.  Clearly my publisher wasn’t making any money on the book, so warehousing remaining copies was becoming a problem, not to mention the prospect of a reprinting.

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

DC: There is a clause in the contract entitled “Reversion of Rights,” that seems to be entirely conditional upon the book being “declared out of print in the United States” plus 90 days after such declaration.  I did not appeal to this clause of the contract when I wrote requesting reversion.

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

DC: I did not face any obstacles.  I received communication back from my request within a week, as I recall, and the official reversion of rights within about a month.  The persons with whom I had communication regarding reversion were all cordial and easy to work with.  There is nothing I would have preferred doing differently regarding the process.

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

DC: There are several different circumstances that need to be taken into account.

Before the contract is signed, by all means try to have a reversion of rights included in the contract.  Do some research and have some alternative models at hand for how it might be worded.  Do take the publisher’s interests into account and, if possible, provide reasons for reversion that not only will be understandable to the publisher but also make it attractive to them.  Be prepared to go to another publisher.  It would be best if you have another acceptance offer in hand, or at least the strong likelihood of one.

After publication, a reversion of rights, in a situation where there is not a strong reversion of rights clause with clear conditions that are met, there should be no problem.  If there is no such clause, then you would need to establish that it would be in the publisher’s best interest to revert the rights to you—which could be a very tall order, unless the future prospect of sales, etc., is very dim, as was the case for me.

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

DC: Reversion has given me freedom to do what I want with Six Ways of Being Religious, including publishing it myself, and possibly finding another publisher. Currently, I have chosen to have it digitized and published on my university’s digital commons.

Since doing so, it has been downloaded more than 500 times in many different countries around the world.  I am considering offering print-on-demand and possibly an ebook version, both for a small price.

AWP Authors Inform Our Upcoming Guide to Publication Contracts

Posted March 22, 2018
Karen and Anna conducting their survey

An AWP attendee shares her contract story with Karen and Anna

Earlier this month, Authors Alliance attended the Association of Writers and Writing Programs (AWP) conference in Tampa, Florida. We presented a panel discussion on copyright basics with LeEtta Schmidt of the University of South Florida and Dave Hansen of Duke University, and staffed an information table at the conference bookfair. We were joined by UC Berkeley law students Karen Hagen and Anna Kuksenkova, who surveyed conference attendees in order to gather stories of authors’ real-world experiences with publication contracts. Some of those examples—from negotiation success stories to lessons learned the hard way—will be incorporated into our forthcoming guide to publication contracts.

Photo of Anna and Karen gathering survey dataThe survey results are still preliminary, but they revealed some key points that will be addressed in the guide. A number of authors shared successes and regrets about publication contract clauses relating to wide range of issues including pricing, cover design, royalties, audio rights, translations, and marketing. These considerations, and more, will be addressed in our forthcoming guide and will inform our tips for negotiating for author-friendly terms.

We are grateful to Karen and Anna for designing and administering the author survey and for their thoughtful engagement with authors at the conference. The final version of the contracts handbook will be even more useful and relevant thanks to their efforts!

 

Newly Updated: Fair Use FAQ

Posted February 28, 2018

Fair use has always been a key issue for Authors Alliance. When we launched in 2014, we created a Fair Use FAQ to help authors navigate this complex topic. Now, to celebrate Fair Use Week and our recently published guide to Fair Use for Nonfiction Authors, we’ve expanded and updated the FAQ to provide a comprehensive summary of key points. Read on to learn more!

  1. What is fair use anyway?
  2. What does it mean to say a use is “transformative”?
  3. What does it mean to say a use is “non-transformative”?
  4. Can I still claim fair use if I am using copyrighted material that is highly creative?
  5. Can I still claim fair use if I am using copyrighted material for commercial purposes?
  6. Can I still claim fair use if I ask the copyright owner for permission to use the material and permission is refused?
  7. Can I still claim fair use if I want to use copyrighted material that is unpublished?
  8. Are charts, graphs, and tables protected by copyright and, if so, can I rely on fair use to incorporate them into my nonfiction work?
  9. How does a work’s copyright status affect fair use?
  10. How does a work’s orphan work status affect fair use?
  11. Can contractual terms governing access to a work restrict the availability of fair use?
  12. Does the fair use analysis change when the copyrighted material I want to use is owned by a litigious estate?
  13. What can I do if my publisher asks me to obtain permission instead of allowing me to rely on fair use?
  14. Does fair use protect against claims based on legal rights other than copyright, such as privacy rights, trademark, defamation, right of publicity, and more?
  15. Is fair use really as unpredictable as some people say?
  16. What if there is no on-point best practice guide for me?
  17. Where can I learn more?

What is fair use anyway?

In U.S. copyright law, fair use is a use of a copyrighted work that does not infringe the exclusive rights that the law confers on authors and other rights holders.

Section 107 of the U.S. copyright act identifies four factors that courts should consider in determining whether a use is fair or infringing:

  1. The purpose and character of the challenged use;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the challenged use; and
  4. The harm the challenged use is likely to cause to the market or potential market for the work.

No factor is dispositive; all must be weighed together.

Uses for criticism, commentary, news reporting, research, scholarship, and teaching are identified in the statute as examples of favored uses. Noncommercial uses are generally more likely than commercial uses to be fair. Transformative uses are also more likely than non-transformative uses to be fair.

The scope of fair use tends to be somewhat broader for fact-intensive works, especially when done for one of the favored purposes.

A good shorthand way of considering whether a use you want to make of another’s work will be fair is whether the amount you borrowed from the other’s work is reasonable in light of your purpose and unlikely to supplant demand for purchase of the original.

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What does it mean to say a use is “transformative”?

A use will be considered “transformative” if it:

  1. Actually transforms expression in the work, as a parody of a song might do;
  2. Is included in a new work of authorship, as quoting from the writings of a person in a biography;
  3. Is used for a different purpose than the original, causing it to have a different meaning, as when a newspaper publishes a photograph that has become controversial.

Transformative uses will not always be fair. A new arrangement of a song, for instance, may well infringe the derivative work right. But especially when done for purposes of criticism or commentary, the transformativeness of a use will tend to tip in favor of fair use.

Courts have recently been receptive to the idea that copyright owners do not have the right to control all transformative uses of their works. Transformative uses are less likely than non-transformative uses to pose a risk of supplanting market demand for a work.

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What does it mean to say a use is “non-transformative”?

A use will be considered “non-transformative” if it is, for example, an exact copy of a work or part of a work. Making a time-shift copy of a television program is an example of a non-transformative use that courts have deemed fair. Posting a chapter of a book on an electronic course reserve system is another example of a non-transformative use. (The Cambridge University Press v. Becker case, which is presently pending before an appellate court, is testing whether this kind of use is fair.) Scanning a photograph you like and posting it online is a third example of a non-transformative use.

Non-transformative uses may be and often are fair uses, but they are somewhat less likely to be fair uses insofar as they pose a stronger risk of harming the market for the work. If someone makes a copy of a movie or computer program, for instance, instead of buying a copy of his own, that non-transformative use is more likely to have a negative effect on the copyright owner’s market. Even though one person’s peer-to-peer file-sharing of music or a movie would seem to be relatively trivial, courts take into account that if they say this use is fair, then many others will do the same thing and the aggregation of these uses are likely to cause market harm.

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Can I still claim fair use if I am using copyrighted material that is highly creative?

Yes. While courts do consider whether the copyrighted material used is primarily factual or creative under the second factor, “the nature of the work,” this factor is rarely decisive on its own. Courts still must weigh all four factors, including the “purpose of the use.” Where the purpose of the use is transformative, such as when a nonfiction author comments on copyrighted material or uses copyrighted material to support a point, and the amount used is reasonable, the second factor rarely affects the final outcome of fair use cases.

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Can I still claim fair use if I am using copyrighted material for commercial purposes?

Yes. While “noncommercial” uses may be a plus in a fair use analysis, there are no categorical rules: Commercial uses can be fair use, and not all noncommercial uses will be fair use. In fact, some of the important court victories for fair use over the past two decades have been won by defendants whose activities were commercial, including musicians, publishers, and artists who sell their work (sometimes at substantial prices).

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Can I still claim fair use if I ask the copyright owner for permission to use the material and permission is refused?

Yes. You do not have to ask permission or alert the copyright holder when a use of materials is protected by fair use. But, if you choose, you may inquire about permissions and still claim fair use if your request is refused or ignored. In some cases, courts have found that asking permission and then being rejected has actually enhanced fair use claims. In fact, the Supreme Court has said that asking for permission may be a good faith effort to avoid litigation.

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Can I still claim fair use if I want to use copyrighted material that is unpublished?

Yes. Congress amended the Copyright Act in 1992 to explicitly allow for fair use when using unpublished works after several court decisions suggested that the use of unpublished materials would rarely be fair use. Under current copyright law, the fact that a work is unpublished “shall not itself bar a finding of fair use if such finding is made upon consideration of all the [fair use] factors.”

While a court may still consider a work’s unpublished status to weigh against fair use when evaluating the “nature of the work,” this factor is rarely decisive on its own and courts still must weigh all of the fair use factors, including the purpose of the use. The purpose of the use may weigh against fair use if the unpublished material is being used in a frivolous or exploitative manner. On the other hand, the purpose of the use may weigh in favor of fair use if the unpublished material transforms the original material (by, for example, using the original material as the object of criticism or commentary) and contributes to the public’s interest in advancing knowledge.

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Are charts, graphs, and tables protected by copyright and, if so, can I rely on fair use to incorporate them into my nonfiction work?

Charts, graphs, and tables may be protected by copyright, but the underlying facts are not copyrightable. Creative choices in the way that facts are presented in a chart, graph, or table may be sufficiently original to warrant copyright protection. That said, where applicable, you may still be able to rely on fair use to use a chart, graph, or table that includes expressive elements.

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How does a work’s copyright status affect fair use?

Copying of works that are not protected by copyright is not copyright infringement, regardless of fair use. But sometimes it can be difficult to determine whether a work is protected by copyright. For example, you may not be able to determine whether a work’s copyright has expired, or you may not be sure whether a scientific chart has the requisite level of creativity to warrant copyright protection. Even where you cannot determine a work’s copyright status, you may still want to understand whether the use of the material would be permitted by fair use should the material be protected by copyright. In fact, in some cases determining whether the use would be permitted by fair use may be easier than resolving the work’s copyright status.

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How does a work’s orphan work status affect fair use?

Orphan works are works for which it is difficult or impossible to identify or locate the work’s copyright owner, even after a diligent search. The use of an orphan work may be permitted by fair use, just like any other work. In fact, orphan works often have characteristics that make fair use more likely. For example, orphan works are by definition not active in the market, limiting any resulting economic harm to rightsholders. In some cases, determining whether the use of an orphan work would be permitted by fair use may be significantly easier than securing permission from a rights holder that, by definition, is difficult or even impossible to track down.

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Can contractual terms governing access to a work restrict the availability of fair use?

Yes. For example, some archives, museums, and commercial collections that control access to works place contractual restrictions on the use of those works, even when use of the work would otherwise be permitted by fair use (and, in some cases, even when the work itself is in the public domain!). This is beginning to change, and some archives and museums have already abandoned these practices. However, if you are a party to such a contract, your ability to use materials you’ve accessed may be limited by the terms of the contract. For example, a biographer who accesses her subject’s personal papers through an archive may find that, as a condition of accessing those materials, the subject’s estate forbids quoting from the materials without the express permission of the estate. Similarly, an art critic may find that he has agreed to terms governing the use of photographs he accessed through an online archive.

At least some courts have held that such contracts may be enforced, even if the restricted use would be fair use as a matter of copyright law. In these cases, nonfiction authors cannot rely on fair use since demands for permission in this context are based on contractual claims, not copyright. As such, nonfiction authors should pay careful attention to the conditions of access to source materials and may want to consider negotiating for better terms that do not restrict their research and writing goals.

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Does the fair use analysis change when the copyrighted material I want to use is owned by a litigious estate?

No. Some estates are notoriously aggressive in trying to prevent the use of materials to which they own the copyrights. However, just because a copyright owner is forceful in asserting copyright claims doesn’t make fair use any more or less likely. It may, however, change your assessment of the practical risk that a copyright owner might complain or sue. Authors in this situation may be especially interested in obtaining errors and omissions coverage prior to publicizing their work.

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What can I do if my publisher asks me to obtain permission instead of allowing me to rely on fair use?

Some publishers may require that authors get permission to use copyrighted materials in their works instead of allowing them to rely on fair use. If you find yourself in this situation, you may find it helpful to ask your publisher to reconsider its position and to explain why you think your intended use is protected by fair use. You may also want to share with them related codes of best practices, if relevant. If fair use is important to you or essential to your project, you may want to search for a publisher that recognizes fair use before signing a publishing contract.

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Does fair use protect against claims based on legal rights other than copyright, such as privacy rights, trademark, defamation, right of publicity, and more?

No. Fair use is a limitation on exclusive right under copyright and does not apply to other legal claims. When using third party materials, authors should consider legal issues beyond copyright, such as contractual restrictions, privacy rights, trademark law, right of publicity, and defamation; and community norms, like rules against academic plagiarism.

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Is fair use really as unpredictable as some people say?

It is sometimes said that fair use is unpredictable. Larry Lessig, for instance, spoke of fair use as “the right to hire a lawyer.” For some people, this perception of unpredictability has a chilling effect (that is, they are unwilling to take the risk that the use will be held unfair).

To provide guidance, the Center for Media and Social Impact at American University has published some “best practices” guidelines to help people become more comfortable with making fair uses, including one for documentary filmmakers and one for user-generated video content (remixes and mashups). The Center for Media and Social Impact has published a template to help users in particular communities to form their own best practices guidelines.

The “best practices” approach is catching on.  In fact, Authors Alliance published a guide to Fair Use for Nonfiction Authors, which features guidance based on a meta-analysis of existing best practices guides.

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What if there is no on-point best practice guide for me?

Even if no best practice guidelines exist for your community, it is worth knowing that there is more predictability in the fair use caselaw than some have suggested. As noted above, a use is likely to be fair if done for a purpose such as criticism, comment, news reporting, scholarship, teaching and research as long as what you take from another’s work is reasonable in light of your purpose. Here are some examples:

  • Quoting small amounts of text (8% or less) from each of 25 writings in a critical biography of L. Ron Hubbard was held a fair use in New Era Publications Int’l ApS v. Carol Publishing Group in 1990.
  • Reproducing seven posters in significantly reduced sizes that had once advertised Grateful Dead concerts in a 480 page book on the cultural history of the band was held to a fair use in Bill Graham Archives v. Dorling Kindersley in 2006.
  • Preparing a reference work about the characters, plot, and special features of fictional works was held to be fair use in Warner Bros. Entertainment v. RDR Books (although RDR had to change some places where there was very close paraphrasing of passages from Harry Potter novels) in 2008.
  • Scanning student papers into a database designed to detect plagiarism was held fair use in A.V. v. iParadigms in 2009.
  • Retelling the story of Gone With the Wind from the vantage point of a slave was held a fair use in Suntrust Bank v. Houghton Mifflin Co. (However, an unauthorized sequel to Catcher in the Rye, imagining Holden Caulfield as an old man, was held unfair in Salinger v. Colting. Sequels, in general, are likely to be considered infringing derivative works. One reason the use was fair in Suntrust was because of it was a critical commentary on the original and the Mitchell estate made clear it would never have licensed this kind of use of the famous novel.)

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Where can I learn more?

For further reading on fair use, we recommend:

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Copyright Registration Part 2:
How to Register Your Copyright

Posted February 21, 2018

Last week we outlined the benefits of registering your work with the U.S. Copyright Office. If you missed it, start here to learn why registration is an advantageous practice for authors. In the second half of this two-part series, we explain how to register your works with the U.S. Copyright Office.

Copyright registration is a claim to copyright filed with the Copyright Office which creates a public record of facts about a copyrighted work, including authorship and ownership information. Copyright registration includes three essential elements: a completed application form, a filing fee, and a “deposit” (a copy of the work submitted to the Copyright Office). Each of these steps are outlined below. Authors, their agents, and owners of an exclusive right in a work can register a copyright. Often, but not always, if you are publishing your work, your publisher will register the work for you—but it is best to check, especially if you are retaining your copyright or publishing with a smaller press. If you are self-publishing your work, it will be up to you (or your agent) register the copyright to your work.

Registration can be made at any time within the life of copyright, but some benefits of registration are contingent upon timely filing, as described in last week’s post.

Application Form

Application forms for copyright registration can be completed and submitted online or through a paper application. The Copyright Office encourages authors to register online, where possible. Advantages of registering online include lower filing fees, faster processing times, and the ability to track the application status.

Online applications for copyright registration can be accessed from the Copyright Office’s Registration Portal, paper forms are available on the Copyright Office’s Forms page, or you can request forms through the mail by calling (202) 707-3000.

Before you begin an application, you will need to select the category of work that best corresponds to the work you want to register (e.g. literary works, visual arts, motion pictures, photographs, etc.). The information collected on the form is based on the type of work you are registering, but generally includes information about the work (such as the title, completion year, and publication year, if applicable), the author, and the copyright owner. Once the application is submitted to the Copyright Office, the application is a part of the public record, meaning anyone can request to see a copy of your application.

Filing Fee

The filing fee for online applications is currently $35 (single application) or $55 (standard application). The filing fee for paper applications is currently $85. If you are submitting your application online, the Copyright Office accepts credit cards, debit cards, or electronic checks. Fees accompanying paper forms must be paid by check or money order (unless the registrant maintains a deposit account with the Copyright Office).

Deposit Copy of the Work

You normally must submit a copy or copies of your work (known as a “deposit”) to complete the application process.

Some works, such as unpublished works and works published only in an electronic format, may be submitted electronically with an online application form. If you are submitting a work electronically, make sure that you submit it in an electronic file type acceptable to the Copyright Office. The maximum size for an uploaded file is 500MB.

If you are registering a work first published in the United States after January 1, 1978, you may be subject to “best edition” and mandatory deposit requirements. In this case, you must submit two complete hard copies of your work (or, in the case of certain types of published literary works and musical compositions, a single copy). If there are multiple editions of your work, you may be required to deposit the “best edition”. The best edition is the edition published in the United States at any time before the date of deposit that the Library of Congress determines is most suitable. For example, the Copyright Office’s Best Edition Statement requires that you submit the hard cover edition of your work rather than the soft cover edition, if your work is available in both forms. If multiple versions of your work are published, review the Best Edition Statement to determine which edition to submit.

Hard deposit copies can be mailed to:
Library of Congress
U.S. Copyright Office
101 Independence Avenue SE
Washington, DC 20559

If you are mailing a hard copy of your work after submitting an online registration form, be sure to include the shipping slip that was created when you filled out the application on your computer. If you are filing for registration using a paper form, send the work, the completed application form, and the fee in one package.

Please note that some works have special rules, considerations, or exemptions from the deposit requirement. For example, if you are registering a sculptural work or a computer program, you generally should submit “identifying material” (like photographs or drawings in the case of a sculptural work or source code in the case of a computer program) instead of the work itself. To learn more, read Copyright Office Circular 7D.

Processing time

As of February 2018, the average processing time for online applications is 6-8 months and for paper applications is 8-10 months. If your registration is approved, the Copyright Office will mail a registration certificate to the address specified in your application form and the effective date of registration will be the date that the Office received all of the required elements (the application, fee, and deposit).

For more information on copyright registration, see the Copyright Office Circular 2.

Last updated February 20, 2018.

We are grateful to Allison Davenport, former Authors Alliance Research Assistant, for her help with researching and drafting this post.

Copyright Registration Part 1:
Why Register Your Copyright?

Posted February 14, 2018

Under today’s copyright laws, copyright protection for original, creative works is automatic from the moment the work is “fixed in a tangible medium” (e.g., as soon as the author puts pen to paper, paintbrush to canvas, or saves a computer file). Although authors do not need to register their works in order to enjoy the protection of copyright law, registration has several benefits which make it an advantageous practice.

In this first article in a two-part series, we outline some of the benefits of registering your copyrights. Next week, we’ll explain how to register your works with the U.S. Copyright Office.

Copyright registration is a claim to copyright filed with the Copyright Office which creates a public record of facts about a copyrighted work, including authorship and ownership information. Copyright registration includes three essential elements: a completed application form, a filing fee, and a “deposit” (a copy of the work submitted to the Copyright Office). We’ll cover those steps in more detail in next week’s post on how to register copyrights. Authors, their agents, and owners of an exclusive right in a work can register a copyright. Often, but not always, if you are publishing your work, your publisher will register the work for you—but it is best to check, especially if you are retaining your copyright or publishing with a smaller press. If you are self-publishing your work, it will be up to you (or your agent) register the copyright to your work.

Registration can be made at any time within the life of copyright, but some benefits of registration are contingent upon timely filing, as described below.

Registration Establishes a Public Record of Ownership

Registering your work—and recording subsequent transfers of ownership—creates a record of copyright ownership that allows the public to identify and locate copyright owners. This benefits both authors and the public, and it helps prevent works from becoming orphans. Ownership records enable would-be users of works to locate the copyright owner in order to ask for permission or a license to make uses that are within the copyright owner’s exclusive rights, to provide attribution to the author, or to discover when a work is in the public domain. In the absence of a public record of copyright ownership, would-be users of a work may not know whom to contact, and may abandon potential onward uses of your work. This means that you could lose revenue from licensing opportunities and miss out on the chance to grant permission for uses which you would welcome (even without payment); consequently, your work may not have the vibrant life you hoped for in years to come.

Flora Foxglove retained all of the copyrights to her book of gardening tips and registered the work with the Copyright Office. Horace Horticulture wants to copy and share the book with his community gardening class, so he searches the Copyright Office’s records to find out how to contact Flora. He sends a request to Flora’s PO Box, asking for her permission to copy and distribute her work with his students. Delighted to share gardening know-how with budding enthusiasts, Flora gives Horace her permission to reproduce the work so long as he includes her name on the copies.

Blaine Blockbuster thinks that a movie adaptation of Betsy Bestseller’s latest novel would make the next Hollywood hit. He searches the Copyright Office’s records, and finds that Percy Publisher owns all of the exclusive rights in the work. Blaine contacts Percy and negotiates for a license to make a movie adaptation of the novel.

Registration is Necessary Before Initiating an Infringement Suit

In addition to facilitating downstream uses of a work, registration gives you additional rights in the event that your work is infringed. In fact, registration is a necessary precursor to a copyright infringement lawsuit: If someone uses your work in a way that you think infringes on your copyright and you want to initiate a copyright infringement lawsuit, you must register your copyright before you can do so.

Registration Within Five Years of Publication Provides Favorable Presumptions

If a work is registered before or within five years of publication, registration brings with it the presumption that the work is copyrightable and that the facts stated in the registration certificate are true. This may include information such as the name of the author, the name of the copyright owner, the title of the work, the date the work was published, and the effective date of registration. This means that in an infringement suit, if your registration was timely, the burden of proving your copyright is invalid will fall on the defendant. If you do not register within five years of publication, you can still do so, but how much weight a court will give the facts stated in the registration is at its discretion.

Registration Within Three Months of Publication, or Prior to Infringement of the Work, Opens Up the Possibility of Statutory Damages and Attorneys’ Fees

If registration is made within three months of publication of the work, or prior to the infringement of the work, statutory damages (predetermined payments established by law) and attorneys’ fees are available to the copyright owner in the event of an infringement lawsuit. Statutory damages typically range from $750 to $30,000 per infringed work (though they can be as high as $150,000 per infringed work for willful infringement, or as low as $200 where the infringer was not aware and had no reason to believe the use was infringing.) Timely registration also allows you to request reimbursement of your attorneys’ fees and costs of filing the lawsuit. If you do not register your work prior to the infringement or within three months of publication, your remedy in an infringement action is limited to the actual damages you suffered from the infringement (and any of the infringer’s additional profits that are attributable to the infringement), as well as injunctive relief (e.g., a court order restraining the defendant from copying the work).

Last updated February 13, 2018.

We are grateful to Allison Davenport, former Authors Alliance Research Assistant, for her help with researching and drafting this post.

Rights Reversion Success Story: David G. Ullman

Posted January 31, 2018

Headshot of David UllmanDavid G. Ullman is Professor Emeritus of Mechanical Engineering Design at Oregon State University and an expert on product design and decision-making best practices. After securing a reversion of rights, Ullman published the sixth edition of The Mechanical Design Process, a leading text used to teach mechanical engineers the processes of product design. We asked Professor Ullman to share his rights reversion success story with us.

Authors Alliance: What motivated you to request your rights back?

David Ullman: When The Mechanical Design Process was first introduced in 1992, I insisted that it be priced at less than $50. I felt this was a fair price for a university text on the topic. McGraw-Hill, the publisher, agreed and released it at $49. Over the years, McGraw-Hill steadily raised the price over my protests. By 2017 the list price was $166. University bookstores sold it for $149. I contacted McGraw-Hill, protesting the price increases. I told them that I did not understand their business model, the price was usury, and they were killing the sales of the book. Where inflation would have taken the book to $85, they had nearly doubled that. Finally, in early 2017, when the annual sales for the fifth edition (2015) had dropped from 4,000 copies per year to 1,000, I offered to buy the copyright, and they agreed, at no cost to me. Thus, in November 2017 I released a new edition of the book at a price practitioners and students can afford: $49.95. It is interesting to note that as soon as the agreement was signed, McGraw-Hill’s list price was lowered by $30.

AuAll: How and when did you first hear about rights reversion?

DU: I always knew that it was possible to buy back rights. When I decided to request the rights back, I did a lot of online reading to be sure I understood the ins and outs.

AuAll: Could you walk us through the process of requesting your rights back?

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Model Publishing Contract Features Author-Friendly Terms for Open Access Scholarship

Posted December 14, 2017

The University of Michigan and Emory University have teamed up to create a Model Publishing Contract for Digital Scholarship designed to aid in the publication of long-form digital scholarship according to open access principles. It’s a terrific new resource for authors and publishers alike!

Developed by a team of library and university press professionals, the model contract takes into account the needs of a variety of stakeholders. The contract is shorter and easier to understand than typical publishing contracts, and it offers authors more rights in their own work, while still allowing publishers sufficient rights for commercial uses and sales. Associated documents include:

  • An introduction to the project
  • A guide to using the model documents
  • A customizable contract template in Word format
  • A sample letter for requesting permission to create and distribute digital copies of a copyright owner’s work
  • A glossary of legal terms

All of the documents are available online under a CC0 license, so they can be tailored to meet an author’s or institution’s specific needs. Even for those not currently negotiating a publishing agreement, the model contract provides useful information and sample language demonstrating author-friendly terms.

The model publishing contract is a great complement to one of our current projects here at Authors Alliance. We’re hard at work on a guide to understanding publication contracts—the fourth volume in our series of educational handbooks, due to be released in 2018. Our guide will explain various contractual terms from an authors’ rights perspective. We recommend the model contract project as an excellent example of a fair and workable document with a special emphasis on open access scholarship.