There Are Rights and Then There Are Rights...

by Janis Patterson

Early this year I was talking with a dear friend of mine, a very successful romance writer who is so successful that she has her own Kindle World. For those who don’t know what KW is, it’s sort of a legitimized fan fiction scheme. A world is based on a popular book/series. People who want to write in that world can – as long as they follow certain contractual restrictions. If accepted by a Kindle committee, the book will be published, with half the income going to the original author. A different concept, but so far, so good.

To a point.

As I said, I was talking with my friend and we agreed that it would be a fun thing for me to come play in her world. She’s a multi-NYT, USA bestseller, so it would have been good for me. I wrote a book – and had a marvelous time doing it, as her fictional world is set in one of my favorite places in the real world, so it was sort of like a mini-vacation. Then, while finishing the book, I thought I should take another look at the KW rules before submitting, as I had only glanced at them before.

What a shock. Copied from the KW ‘how it works’ page :

You will own the copyright to the original, copyrightable elements (such as characters, scenes, and events) that you create and include in your work, and the World Licensor will retain the copyright to all of the original elements of the World. When you submit your story in a World, you grant Amazon Publishing an exclusive license to the story and all of the original elements you include in that story for the term of copyright. This means that your story and all of the new elements must stay within the applicable World, and you can use only this platform to write about them. (Emphasis mine.)

Whaaaat? You own the copyright, but grant them exclusive license to the story and ALL original elements in your story for the life of the copyright? (That is 75 years after your death, in case you didn’t know.) And if you want to write more using those characters they not only have to be exclusive to Amazon, but to KW? Worse still, if Amazon decides to end KW, or pull your book from the canon, your characters and original elements are still under their control. They can vanish from public view forever and contractually you can’t do a thing about it.

Amazon goes on to say :  

We recommend that you do not incorporate an original character or elements unless you want them to become an exclusive part of that World. In short, Kindle Worlds is a place to be creative and explore a popular World, but anything you create will become part of that World. (Emphasis mine.)

And, to be fair, they do say :

If this is not right for you, Amazon has many platforms (including Kindle Direct Publishing and CreateSpace) for writers who want to be creative with original ideas but do not want their work under this kind of license.

What I don’t understand is why would anyone give away their rights for what is pretty much perpetuity like this? Especially for just HALF of the royalties? Amazon even says bluntly that no rights will be reverted before the end of copyright. Period. I know there has been a trend lately among traditional publishers to hold on to (sometimes to the point of refusing to return them no matter what the contract says) or demand longer terms on rights, but I find this is incredible.

Needless to say, I called my friend and said that I would not be putting anything into her world, that I could not simply give away my rights like that. I do intend to publish the book, but I was very careful to scrub it of any reference to her world or her characters, except for the physical location, which actually exists and has been used in books for at least a century. I offered to send her a manuscript copy so that she could be sure that there was no overlap with her work, but she most graciously said it wasn’t necessary. (We have been friends for many years…)

So while I can only goggle at anyone who would simply hand over the rights to their characters and ideas as well as their right to publish anywhere they want, such a rights confiscation apparently is not illegal. The writer has to submit and sign of their own free will, which makes the contract (however unfair I regard it) valid. I don’t have the right to order anyone not to accept such an arrangement (not that they would listen to me) because it’s their business, not mine. All I can do is beg everyone to read the FAQs and the contracts very carefully and make sure they completely understand just what they are signing away and for how long. Then I would remind them that they should do the same with every contract offered them, no matter from whom it comes. If there is the slightest question, they should turn to their agent (if they have one) or talk with an intellectual property lawyer. Or both.

Unfortunately the publishing world – like the world of movies and TV – is just brimming with sharks waiting to gobble up the creativity of the naïve. You the writers are the only ones who can protect yourselves and your creations. Make sure that any choice you make is a good one.

Just Whose Side Are They On, Anyway?

by Janis Patterson

I’m angry. Again. But this time it is something that really affects all of us and our industry.

The New York District Appeals Court has ruled against the Author’s Guild about Google’s scanning of books. Part of the ruling says :

"…the purpose of copyright law is not to guarantee authors a living, nor is it to give them exclusive control over who uses their work and how. The purpose of the law is to provide an incentive for people to create artistic works because doing this benefits society." 

Excuse me?

We are supposed to be writing for the benefit of society? I hope someone can explain why taking away control of our work and the money it should be generating for us is an incentive for us to ‘create artistic works.’

That kind of thinking smacks of the old idea of writers as starving in a garret while writing something just for the purpose of creating something for the ages. Yes, I know there are some people who call themselves writers who do write for no purpose other than wanting their deathless prose to be read by the general populace, but (and I’m getting snarky here) they usually aren’t very good writers, just wannabes who want to be thought of as a published author no matter what. And they certainly aren’t professional writers.

Most writers I know write not only because they love it, but because it is their job. They expend effort and creativity, and deserve fair recompense. If someone can just come and take something we have worked to create and give it away to all and sundry without our permission or profit, why should we do it? To benefit society? Give me a break. Try that booshwah on a plumber. Or a carpenter. Or a stock broker. Or just about any other field.

But you do get paid, someone said. You get an advance (which is very often little more than pocket change, if that) and you do get royalties. How long do they think people will buy books so we can get royalties if they discover it is available for free? There is an ‘entitlement mentality’ in our society today where there are those who think everything should be free – birth control, cell phones, college, health care, medicine, whatever. I think in their greed and lack of self responsibility they haven’t thought it out that nothing is ever really free – someone somewhere has to pay for it. The writer pays with his time and imagination and plain hard work, but the court says negating the writer’s rights is a victory for ‘fair use.’

Fair to whom? Certainly not to the writer. Google is a $450-billion web giant copying millions of books, and then using them in part to feed its massive, money-generating search empire. They say this benefits the author because it will make his work easier to find. Perhaps – but what difference does it make if the author cannot retain control of his creation? Pierre Leval, US Circuit Judge, said “While authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public.”

I do not write to benefit the public. I write because it is my work, and from it I earn my income. To remove control of a writer’s work from the writer and make it free to the public might benefit the public in the short term, but what happens when the working professionals quit writing because they no longer earn even part of a living from it? Obviously the gap will be filled with those writers who do write just so that people can read their words and thoughts without regard for a career or proper recompense. Some of them might be good, but I’ll bet that most won’t. And that dissolution of standards will truly not be to the benefit of the public or even to literature itself.

Today on some of my writers loops there were attorneys doing apologia for this, saying that this was nothing new, that ‘fair use’ has been part of the law since the days of the Constitution. Perhaps it has, but that does not necessarily make it right. One thing that became evident is that there is no legal definition of ‘fair use.’ Is it a basic premise? An overarching idea? A phrase? A catchphrase? What? And even if it has been around from the beginning, I’m not sure writers are helped or protected by this sad legal situation being publicized.

This misbegotten ruling eviscerates the very concept of copyright, is a complete negation of the principle of copyright. Several someones have suggested that perhaps we should stop copyrighting our books with the government. At $35 per registration and with all the books being published now, that could add up to a fair amount of money. They have suggested that hitting them in the pocketbook might make the government re-think the proposition. I disagree. Monetary concerns might work with a private entity, but our government seems to thrive on overspending and then simply printing great amounts of money to make up for it. The few hundred thousand such a boycott would generate wouldn’t even be noticed. Besides, in cases of theft and/or piracy by others than the government-sanctioned ‘fair use’ crowd, you have a much smaller chance of justice and fair recompense if your work is not copyrighted through the government. The writer is going to be screwed either way.

We created our books and our characters. They are our property, and we should be in control of how and when and under what circumstances people have access to them. Writing is work, and the hire should be worthy of the work and the workman.

A Case for Copyright

By Mark W. Danielson

Certainly, the most important aspect of writing is for an author to register his or her work with the Library of Congress. Doing so copyrights your work and, in theory, protects you from infringement and plagiarism. The process has never been easier since it can be accomplished on line at: http://www.copyright.gov/forms/ For a mere thirty five dollars, your work is instantly protected. Your confirmation letter will come via snail mail.

But make no mistake about it, a copyright is not a guarantee. The high-profile case of author/Claimants Michael Baigent and Richard Leigh versus author Dan Brown and powerhouse publisher Random House proves this. You see, Baigent and Leigh had filed a non-textual infringement suit against Random House claiming that Brown’s The Da Vinci Code was inspired by their non-fiction book, The Holy Blood and the Holy Grail (HBHG). The law suit eventually made its way to the high courts where it was heard before Justice Smith. Unfortunately, this case didn’t bode well for the Claimants. Here are some excerpts from Justice Smith’s 51 page report and the OUT-LAW News report on Why The Da Vinci Code Lawsuit Failed. (10/04/2006)

While Baigent and Leigh acknowledged that copyright should not protect against the borrowing of an idea contained in a work, they argued that their book consisted of a sequence of connections no one had previously made. Among them was that the Holy Grail was actually a metaphor for Mary Magdalene rather than a physical artefact. According to the Claimants, Dan Brown copied this conjecture along with 15 other key points that formed The Da Vinci Code’s “central theme”.

Justice Smith accepted that "the facts and the themes and the ideas cannot be protected, but how those facts, themes and ideas are put together … can be." He later added that, "It must be shown that the architecture or structure is substantially copied."

Drawing on other cases, Justice Smith observed, "When a book is put forward as being non-fictional and contains a large number of facts and ideas, it is always going to be a difficult exercise in trying to protect against copying those facts and ideas because they cannot be protected. It is the effort and time that has gone into the way in which those ideas and facts are presented that is capable of protection."

Later, Smith added, "It seems to me … that the Central Theme is not a genuine Central Theme of HBHG and I do not accept that the Claimants genuinely believe it as such. In my view, it is an artificial contrivance designed to create an illusion of a Central Theme for the purpose of alleging infringement of a substantial part of HBHG."

The one central theme that Justice Smith did identify in HBHG was the merger of the Merovingian bloodline with the Royal Bloodline of Mary Magdalene. "As such, it is self evident in my view that is an idea which is of a too general level of an abstraction to be capable of protection. Nor is there any architecture or design in HBHG if that were the theme which can be said to have been appropriated. The Claimants simply do not reveal how they came to their idea or conjecture as they prefer to call it. It not being revealed, it cannot be appropriated."

Lee Curtis, an intellectual property specialist with Pinsent Masons, the law firm behind OUT-LAW.COM, said the ruling came as "no surprise to lawyers and authors." Pointing out that copyright protects the expression of an idea, not the idea itself. Curtis added that, "Brown didn't infringe copyright in the earlier book, he just created a new expression of its idea."

Now, here’s the kicker: As a result of this law suit, Baigent and Leigh face paying their own legal costs plus 85% of Random House's legal costs. Their total bill has been estimated by The Times at £2 million. Clearly, there was no divine intervention in this case. I don’t know about you, but I certainly can’t afford this expense.

So, what can authors learn from this? That a copyright can protect you from infringement, and that your chances of winning a suit against someone who you perceive has created a smilar novel is slim. Interestingly, this has happened to me twice now. First, in my novel whose central theme paralleled the movie Swordfish. In this case, I chose not to seek publication because I may have been accused of infringement, even though my copyright was registered long before the movie came out. Second, a year after my Diablo’s Shadow novel was released, another book was released with a strikingly similar plot. Here, I chose to ignore it.

The bottom line is authors can certainly have similar thoughts, and as such, can create similar stories. What sets them apart is the author’s ability to convey their thoughts in a thoughtful and entertaining manner.