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In 2019, Authors Alliance celebrated five years of providing resources that empower authors to make—and keep—their works available in the ways they want. We’ve taught you about copyright and fair use, we’ve strategized with you to secure fair contract terms, and we’ve celebrated with you when you got your rights back.
Our commitment to authorship for the public good is stronger than ever, but we cannot continue our work without your support. Please consider making a tax-deductible donation today to help us carry on our work in 2020 and beyond. Every contribution enables us to do our part to help you keep on writing to be read!
The termination system was designed to protect authors and their heirs against unprofitable or inequitable agreements. But the report argues it is failing to protect the very people termination was designed to serve: artists and creators. According to Dylan Gilbert, Policy Counsel at Public Knowledge and co-author of the report, “Unfortunately, numerous problems—from legal cost and complexity and imbalances of power to scarce public information—are combining to create dysfunction in the system, which appears to be preventing artists from effectively using their termination right.”
The report critiques the complex eligibility, timing, and filing formalities for termination, which are exacerbated by ambiguities in the law and its application. On top of the onerous procedural requirements, the report highlights power asymmetries governing the negotiation, assignment, and reversion of ownership rights that also harm authors—particularly creators of color—who seek to exercise their termination rights.
The report recommends six policy actions to help restore fairness and functionality to termination of transfer rights:
Revise the Copyright Act so that the termination right vests automatically;
Revise the Copyright Act so that the termination right vests sooner than 35 years after a grant of rights under § 203 or 56 years after the copyright is first obtained under § 304;
Eliminate or revise the “work made for hire” exception or statutory definition;
Mitigate the need for artists to litigate ownership disputes prior to exercising their termination right by revising the statute of limitations or clarifying that the mere act of registering an adverse claim with the Copyright Office is not an effective repudiation of an ownership claim;
Address derivative works issues through statutory clarification; and
Conduct a formal study on the exercise and administration of the termination right, including the effects of the termination right on contract negotiation and renegotiation.
Authors Alliance and our partners have created tools to help authors unpack the complex termination provisions. To learn more about termination of transfer and how to evaluate whether a work is eligible for termination under U.S. law, authors can explore the Termination of Transfer Tool, developed by Authors Alliance and Creative Commons. Authors can also refer to Authors Alliance’s guidance and templates for how to provide notice of termination to rightsholders and record the termination with the U.S. Copyright Office.
The following post by Authors Alliance Copyright Research Assistant Nicolas Charest provides an overview of Georgia v. Public.Resource.Org Inc. Today, the Supreme Court of the United States will hear oral arguments in this case, which examines whether the “government edicts” doctrine extends to the Official Code of Georgia Annotated, rendering it uncopyrightable.
The Code Revision Commission (the “Commission”), an arm of the State of Georgia’s General Assembly, is mandated to ensure publication of the statutes adopted by the General Assembly. It does so by contracting with the LexisNexis Group (“Lexis”) to maintain, publish, and distribute the Official Code of Georgia Annotated (“OCGA”), an annotated compilation of Georgia’s statutes. Following guidelines provided by the Commission, Lexis prepares and sells OCGA, which includes the statutory text of Georgia’s laws and annotations (such as summaries of judicial decisions interpreting or applying particular statutes). Lexis also makes unannotated versions of the statutes available online.
Public.Resource.Org (“PRO”) is a non-profit organization that promotes access to government records and primary legal materials. PRO makes government documents available online, including the official codes and other rules, regulations, and standards legally adopted by federal, state, and local authorities, giving the public free access to these documents. PRO purchased printed copies of the OCGA, digitized its content, and posted copies online through its own website.
Georgia filed suit against PRO claiming copyright infringement. Before the lower courts, PRO invoked the judicially-created “government edicts” doctrine. As a matter of public policy, courts have held that government edicts having the force of law, such as statutes and judicial decisions, are not eligible for copyright protection. While the court of first instance agreed with the State of Georgia and the OCGA was found to be copyrightable, on appeal the Eleventh Circuit held that under the government edicts doctrine, OCGA is not copyrightable and rejected Georgia’s infringement claim against PRO. Now, the issue before the Supreme Court is whether Georgia can claim copyrights over the OCGA annotations or if it is prevented from doing so because the annotations are an edict of government.
Position of the Parties
The State of Georgia and the Georgia Code Revision Commission submit that the annotations are not excluded from copyright protection; the annotations lack the force of law and therefore do not trigger the government edicts doctrine. Georgia also argues that the annotations are “derivative works” from the statutes and though published alongside materials in the public domain, they nonetheless are produced by a private entity. Finally, Georgia states that copyright in the annotations is the underlying incentive for its partnership with Lexis and, absent copyright protection for OCGA, Lexis would lose incentive to produce the annotations unless Georgia used taxpayer funds to directly pay for the services.
Public.Resource.Org argues that, in addition to texts with binding legal effect, any works that represent an “authentic” exercise of state legal authority, including legal works adopted or published under the authority of the state, are uncopyrightable edicts of government and therefore cannot be copyrighted. They posit that as long as the documents embody the authority of the state, such works would not be subject to copyright, even if they do not have legal force. PRO concludes that since the OCGA is an official legal document that holds itself out as “published under the authority of the State,” it is therefore a government edict that is ineligible for copyright protection.
Audio of the oral arguments in Georgia v. Public.Resource.Org should be available on the website of the Supreme Court on Friday. We encourage members of Authors Alliance to contact us at email@example.com to share your views on the implications and outcome of this case. We will provide an update once the Court issues its decision in this case.
As Samberg and Hennesy write, “currently, many [ ] researchers programmatically access and download copyright-protected works—even when it potentially violates copyright, licenses, privacy, or computer fraud law—because it is technically feasible. Few of these researchers are malicious in intent; rather, they may lack the necessary training or support to safely navigate the obscure regulatory environment of the field.”
Samberg and Hennesy’s survey of copyright and other legal issues affecting text data
and Fair Use: Samberg and Hennesy review several cases where courts have
considered the intersection of full text searching a corpus and fair use and
found non-consumptive text mining to be fair. They caution that researchers
should understand that while it may be fair use in some cases to create and
utilize a database for text data mining, further publishing that database may
exceed the bounds of fair use.
Law: Samberg and Hennesy discuss how contract law may define how researchers
can access materials and what use they can make of them, and may even supplant
fair use rights. They review the effect of database license agreements, website
terms of service, and agreements with archives and special collections on text
and Hennesy consider the best practices in responding to requests from web hosts
relating to scraping content from the site.
Samberg and Hennesy use this framework to define literacies for
researchers based on three stages of outreach and education further articulated
in the chapter: use of precompiled corpora, corpus creation, and corpus publishing.
The authors conclude that the key literacy is for researchers “to understand
the need for a workflow [ ] and to explore a tailored approach in consultation with their librarians.”
This chapter is a valuable contribution towards helping scholars using text data mining to acquire the skills they need to understand and approach the legal implications of their work. Law and Literacy in Non-Consumptive Text Mining: Guiding Researchers Through the Landscape of Computational Text Analysis is available to read in full under a CC-BY license.
Do you want to help authors understand and enjoy their rights and promote policies that make knowledge and culture available and discoverable? Are you a passionate advocate for the positive role that authors can play in advancing access to knowledge and culture? Come join our team as our first staff attorney!
Learn more about the position and how to apply on our jobs page. Applications will be considered on a rolling basis beginning February 3, 2020.
We are grateful to Anita Walz, Assistant Director of Open Education and Scholarly Communication Librarian at Virginia Tech, for sharing the following rights reversion and open access success story. Anita worked with the authors of an out-of-print textbook to make a digitized version available online under a Creative Commons license for a new generation of students—not only at Virginia Tech but around the world. This guest post is published under a CC BY-NC-4.0 license.
“I want to assign this book as required reading for my graduate class. However, there are 125 students and I can’t find enough copies for students to access, borrow, or purchase. You’re a librarian. Can you help?” Librarians often field such inquiries. Depending on the situation, such inquiries may lead to nuances of copyright, ebook acquisition, a search for substitute titles, assertion of fair use and exploration of more ideal scenarios: open access works and open educational resources. Sometimes such inquiries lead us outside of libraries to fact-find with authors and publishers on behalf of library users. The example of Veterinary Epidemiology: Principles and Methods is one such case.
In 2015 and 2016 I worked on my first rights reversion digitization project, inspired in part by the Authors Alliance’s publication Understanding Rights Reversion: When, Why & How to Regain Copyright and Make Your Book More Available. Of course, I didn’t know that it was a rights reversion scenario when I first started. A new faculty member had approached me with a copyright quandary: She wanted to use an out-of-print seminal work from 1987 for her class of 125 students. The six copies owned by the library and the several used copies available for sale would not be nearly enough. A thorough check indicated that a digital version was not available for purchase. We also explored working with the Copyright Clearance Center, but the cost was exorbitant. Wanting to honor the professor’s selection of this particular text, my colleagues and I aided her in conducting an informed fair-use analysis and the library displayed selected chapters one-chapter-at-a-time via the library’s secure eReserve system. With the book obviously out of print, and wondering who owned the rights, I contacted the book’s authors in September 2015.
As a follow up to our recent coverage of the fair use issues in the Chronicle Books v. Audible Inc. case, Authors Alliance Copyright Research Assistant Nicolas Charest provides an update on three current cases involving the doctrine of fair use. Click on each case name below to learn more.
Dr. Seuss Enterprises v. ComicMix LLC.
Oh, the Places You’ll Boldly Go! (“Boldly”) is
a book that combines the use of imagery, characters, and other visual elements
from the Star Trek franchise and the works of Dr. Seuss (most notably Oh,
the Places You’ll Go!). In 2016, Dr. Seuss Enterprises sued the creators of
Boldly, alleging that the work infringes
on Dr. Seuss’ works. (The plaintiffs also brought trademark and unfair
competition claims, which are not reviewed in this post.) As for the copyright
claim, the defendants argued that the use was permitted under the fair use
In March 2019, the district court held that the use of elements of Seuss’s work in Boldly is a fair use. Under the first fair use factor (the purpose and character of the use), the court found that although defendants borrowed from Dr. Seuss’ work, these elements were always adapted and the work is highly transformative, thus favoring fair use. Because Dr. Seuss’ work is highly creative, the court found that the second factor (the nature of the work), slightly favored the plaintiffs. Under the third factor (the amount and substantiality of the portion taken), the court found that because the elements are similar, but not replicated, the third factor does not weigh against the defendants. The court explained that while some shapes were borrowed, they were adapted to the Star Trek universe; for example, the narrator is transformed into Captain Kirk and instead of a Seussian landscape, the cover image is set in space. Under the fourth factor (the effect of the use on the market), the court found that the plaintiff failed to introduce evidence demonstrating that Boldly will substantially harm the market for Oh, the Places You’ll Go!, concluding that the fourth factor therefore favors neither party. Balancing all factors together, the court concluded that Boldly is a fair use of Dr. Seuss’ literary universe.
Dr. Seuss Enterprises appealed the decision, and the case is now before the US Court of Appeals for the Ninth Circuit. In its opening brief filed in August, Dr. Seuss Enterprises argues that the four factors do not lead to a finding of fair use. They argue that Boldly is not transformative since it does not parody, comment, criticize or comment on Oh, the Places You’ll Go!. They argue that the defendants “merely aped the purpose of Go!: entertaining the readers (mostly graduates starting out in the world) with an uplifting story.” They further highlight that Dr. Seuss’ works are substantially borrowed because elements central to the Seussian universes are taken, and that merely putting Star-Trek elements in what is otherwise a Seuss world does not result in any transformation. Finally, Dr. Seuss Enterprises argues that Boldly is likely to harm the market for authorized mash-ups.
Recently, the defendants filed a reply brief maintaining that Boldly makes fair use of Dr. Seuss’ books. We will follow developments in the Ninth Circuit.
De Fontbrune v. Wofsy
In the late 1990s, Alan Wofsy, a San Francisco-based art gallery and art book publisher, published and distributed in France The Picasso Project, a catalogue containing reproduction of photographs of Pablo Picasso’s works. These photographs were taken from another catalogue initially published by Christian Zervos (the Zervos Catalogue). Yves Sicre De Frontbrune then acquired the rights into the Zervos Catalogue, and later filed a copyright infringement claim against Wofsy on the basis that The Picasso Project infringed on the copyrights over the photographs. In 2001, a judgment of copyright infringement was obtained in France against Wofsy which also ordered an “astreinte” that required the defendant to pay €10,000 for each future act of copyright infringement in the works. In 2011, copies of The Picasso Project were again found in France and De Fontbrune sought enforcement of the astreinte and consequently a French court awarded €2 million to De Fontbrune in 2012.
Recognition of the 2012 judgment in California was
then sought to enforce the award of money. As part of its analysis to determine
whether a foreign judgment can validly be recognized and enforced in the United
States, a court must determine whether the judgment is repugnant to the public policy
of the forum state or the United States. Wofsy argued that, based on the same
facts in the United States, the use of
the copyrighted photographs was protected by US fair use and there would be
therefore no finding of copyright infringement, which would mean that the astreinte
judgment issued by the French court was “repugnant” to US public policy.
The California district court analyzed the four fair use factors to assess whether a conduct constitutes fair use. The Court decided that the first (purpose and character of the use) and fourth (the effect of the use on the potential market) factors weighed strongly in favor of fair use. The Picasso Project is a reference work intended for libraries, academic institutions, art collectors, and auction houses, which demonstrates that it has an educational purpose, despite the concurrent commercial nature of the work. The Court also found that The Picasso Project and the Zervos Catalogue were destined to disparate markets and were offered at wildly different price points, Zervos being sold as high as $100,000 at auction while The Picasso Project’s volume can be purchased at $150 a piece or as a set ranging from $2,780 to $3,780. It appeared unlikely to the Court that one would ever compete against the other. The court found the second factor (the nature of the copyrighted work), to slightly disfavor fair use, because while the photographs are creative works, the goal was to faithfully reproduce Picasso’s work, not to showcase the original artistic expression of the photographer. Finally, the court found that the third factor (the amount and substantiality of the portion taken), weighs in favor of fair use because Wofsy copied less than ten percent of The Zervos Catalogue’s photographs. The court ultimately concluded that it would not recognize the 2012 judgment because The Picasso Project’s use of copyrighted photographs qualifies as fair use.
On September 12th 2019, the district court granted summary judgment in favour of Wofsy on the basis of the fair use doctrine, and partly in favour of the representatives of De Fontbrune on other procedural grounds. Both parties have appealed.
Sketchworks Industrial Strength Comedy, Inc. v. Jacobs
Sketchworks, an Atlanta-based sketch comedy company, wrote and produced a play titled Vape: The Musical. Vape follows the narrative arc of the hit musical Grease, but brings the cast of characters into the modern day by integrating elements such as online dating, millennial slang, and vaping. A link to the full performance can be found here.
Sketchworks performed Vape in Atlanta in 2018 with enough success to warrant a production of the play in New York, which was scheduled to open in August 2019. Prior to the show’s opening, Sketchworks received a cease-and-desist letter from the copyright holders in Grease, claiming that Vape infringes on Grease and demanding that the production immediately be stopped. Shortly after, the New York theatre cancelled the performances. On August 9th 2019, Sketchworks filed a motion for a declaratory judgment, asking a district court in New York to find that to the extent that Vape uses copyrightable elements from the play Grease, it is fair use under the exception of parody in copyright law.
Sketchworks argues that Vape is a deliberate parody of Grease
that is intended to criticize its misogynistic and sexist elements, which the
creators argue have not aged well. At the same time, the play is set in modern
times and attempts to show that the struggles of contemporary teenagers are
similar to what their Grease-counterparts experienced in their time. As
stated in the complaint, “Vape not
only comments on the controversial themes in Grease, it also explores whether modern society has progressed at
all by pointing to current systemic issues that still exist based on the
misogyny of the era in which Grease
was written and is set.” Sketchworks concludes that any elements that may be
copyrightable are used in a sufficiently transformative manner and are used for
parody purposes which justify a finding of fair use on its play’s use, if any, of
copyrightable elements borrowed from Grease.
To learn more about fair use, we recommend taking a look at our Fair Use FAQs. Nonfiction authors can explore Authors Alliance’s Fair Use for Nonfiction Authors, a guide that helps nonfiction authors make confident fair use decisions when incorporating source materials into their writings. Other communities of creators can learn how their communities apply fair use in situations typical to their given community through best practices documents developed by those communities.
Authors Alliance was pleased to partner with Rebecca Giblin of the Author’s Interest Project to host a side panel at the SCCR/39, “Supporting Authors in a Digital Age.”
Giblin shared preliminary results from a study of more than 50 years of publishing contracts from the archive of the Australian Society of Authors. The research revealed that publication contracts are often insufficient to protect authors’ interests. For example, 14% of the contracts examined by Giblin and her colleague Joshua Yuvaraj did not include out-of-print rights, and only 6% of contracts used objective criteria (such as sales or revenue numbers) to define out-of-print status.
Giblin described how reversion rights give authors fresh opportunities to financially benefit from their works, open up new investment opportunities for publishers, and promote ongoing availability to the public. Giblin explained that their research suggests that there is a need to investigate minimum reversion rights addressing books that have reached the end of their commercial life, uses that are not being exploited, situations where publishers go into liquidation, and term limits akin to US termination of transfer laws.
Brianna Schofield discussed how reverting rights can help authors to reach more readers, continue to contribute to scholarly and cultural discourse, and ensure that their works’ continuing impact and relevance are not limited by their commercial lives. She shared examples of authors who have regained rights and subsequently released their books on open terms, self-published their works, and placed their books with a new publisher. Schofield explained that, because of the tremendous benefits of reversion for authors and the public, Authors Alliance supports statutory termination rights for authors, as well as strengthening provisions governing reversion rights in publication contracts.
Open Access Week 2019 takes place from October 21-27. To mark the occasion, we’re featuring a series of Open Access Success Stories that shine the spotlight on noteworthy OA books, authors, and publishing models. In today’s post, Barbara Kline-Pope, Director of the Johns Hopkins University Press, provides updates about the Press’ open publishing initiatives for scholarly books.
Authors Alliance: We were interested to hear about the new HOP 100 and Encore Editions projects that JHU Press is working on with Project MUSE. Can you tell us more about these two projects?
Barbara Kline-Pope: HOP stands for Hopkins Open Publishing and is the overarching name for all of our open book projects. The HOP 100 represents a low-risk experiment to determine the effect on audience engagement and on sales when opening up books published by Johns Hopkins University Press on MUSE Open. We chose 100 books from our list that were near the end of their sales lives, having sold 10 or fewer copies a year for the past couple of years.
What happened when we opened up those books? Let’s first explore engagement. Of the 100 titles, 54 lived on Project MUSE as gated books prior to being opened. They were available to read for people whose libraries had purchased them either individually or in a collection. Once opened and available on MUSE Open, these books experienced an average of three times more engagement per month as compared with the time period in which they were gated on Project MUSE.
Open Access Week 2019 takes place from October 21-27. To mark the occasion, we’re featuring a series of Open Access Success Stories that shine the spotlight on noteworthy OA books, authors, and publishing models. Today’s post features Calvin L. Warren, Assistant Professor in the Department of Women’s Gender, and Sexuality Studies at Emory University. His book Ontological Terror: Blackness, Nihilism, and Emancipation (Duke University Press, 2018) examines how all humanism is based on investing blackness with nonbeing—a logic which reproduces antiblack violence and precludes any realization of equality, justice, and recognition for blacks. Ontological Terror is available under a CC BY-NC-ND license, supported by Emory University as part of the TOME initiative. We recently sat down with Professor Warren to discuss his decision to make Ontological Terror openly available.
Authors Alliance: Given that many (if not most) humanities monographs are still published via traditional channels, why did you choose open access publishing for Ontological Terror?
Calvin Warren: Unfortunately, academic knowledge is becoming increasingly inaccessible, and this “epistemological exclusivity” is resulting in disturbing patterns of asymmetry. Journals require membership to read current scholarship, and this financial barrier prevents students and scholars from resource poor institutions from acquiring information. The cost of academic books is equally exorbitant, reinforcing the dynamic that knowledge acquisition requires money. I’ve grown uncomfortable with this dynamic and had been searching for a mechanism to make my work more accessible to high school students, lay readers, community colleges, and institutions with limited resources. Open access provided such a mechanism and addressed the inequity of knowledge acquisition. Accessing my book for free has increased my readership and made it possible for black nihilism, as an idea, to expand its horizon.
AuAll: Did the subject matter of your research and/or your audience influence your decision to publish openly? If so, how?
CW: I’ve developed a philosophical perspective “black nihilism” that presents contemporary problems of black existence, anti black violence, and black suffering as deep philosophical issues. Because my work is in constant dialogue with the unceasing, ubiquitous, and regenerating problem of anti blackness, I wanted my work to reach as many people as possible—especially young people who live under the press of anti black terror. My subject matter required a platform widely accessible because people within and outside the academy were searching for answers to difficult questions.
AuAll: Before this book project, what was your impression of open access publishing?
CW: Open access was unfamiliar to me when I began my academic career, and I wish I’d known about it in graduate school. I do hope the [TOME] program recruits early career scholars, who are often producing the most provocative and groundbreaking work. I’m very grateful that Emory University invested time and resources for me to publish with open access.
AuAll: What results have you seen from publishing your book openly?
CW: Open access has widened my readership, exposing my work to artists, scientists, ministers, politicians, people I hadn’t expected to read my work. When access is open, more democratic, ideas can travel without restriction. And this has been my experience.
AuAll: What advice do you have for scholarly authors who want to make their ideas widely available?
CW: My advice to any authors with important ideas, especially those that speak to contemporary concerns, is to consider open access. Make an appointment with open access staff and discuss the possibility of this platform. It will create unexpected opportunities. Also, publishers often consider the open access funds “book sales” so it reduces some pressure from young scholars who need book sales for career stability. In short, open access is a gift to the academy and will lead the way in democratizing knowledge accessibility.