In a much-anticipated press event, Apple today introduced a textbook app it calls iBooks2. The company described it as an educational tool and, given how quickly and completely kids take to the iPad, it may well crack open the e-textbook market in a way that all prior efforts failed to. (See Surprise: Students Prefer Print Textbooks.)

One significant feature of iBooks2 is that it enables students to create their own books, enhance them with pictures, music, movies, videos, and texts from other sources and publish them, thus “inspiring kids to want to discover and want to learn,” as the Apple executive put it.

All well and good.  But isn’t it likely that the pictures, music, movies, videos, and texts from other sources published in these books will belong to somebody else?

These books will be published, uploaded into the iBooks store and sold there.  Unless the authors clear the rights to that content, such sales may be infringements of someone’s copyrights and Apple will be faced with the same kind of spamming that Kindle is combating.

Apple has the obligation to review the content it posts on the iPad and make sure that it does not infringe on the copyrights of others.  Will Apple have the time and manpower to police countless books and vooks, texts and theses? Not likely.  But surely they will not risk incurring liability for selling stolen goods.

If kids want to discover and learn, then the most important educational tool Apple could offer, as an adjunct to its iBooks2, is a primer on copyright. If Apple doesn’t instruct users on that fundamental legal principle, it will need to create an app for defending itself and its authors against copyright infringement lawsuits.

Richard Curtis

Outliving your copyrights sounds like a curse but for Bruce Springsteen, Billy Joel, Tom Petty and other songwriters it may prove a blessing.  It could be a blessing for a lot of aging authors, too, if they step through the window in the US copyright law that allows them to terminate book contracts 35 years after the contract date. Even agreements that originally conveyed rights to publishers in perpetuity cannot trump these termination rights.

Though authors and agents have been aware, for several years, of the impending impact of the law, the time to take action has arrived.  So we thought we’d reprint the blog we posted about a year ago, Rights Bump Swells Bigger and Bigger.

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Are you ready for The Big Bump?

Those of you who read our posting in September (Copyright Asteroid Hurtling Towards Earth) know that The Big Bump is a major copyright event shaping up for the near future. As copyright attorney Lloyd J. Jassin informed us, thanks to a provision of the US Copyright code authors will be able to terminate contracts negotiated in the late 1970s even if those contracts appear to give the publisher rights forever.

“Starting in 2011,” Jassin writes, “the publishing and entertainment industries will be looking at the possibility of thousands of negotiations with copyright owners seeking to recapture their rights. Some call it ‘contract bumping.’ This powerful ‘re-valuation mechanism’ found in the Copyright Act allows authors (and their heirs) to terminate contracts 35-years after the contract date. The termination right trumps written agreements — even agreements which state they are in perpetuity.” [Italics ours]

Though nobody has panicked, the news has begun to percolate and publishing people and their lawyers are beginning to review their old contracts to determine what books are affected and to institute damage control measures.

For publishers the strategy is to commence negotiations with authors and agents now to extend or renew the old contracts or negotiate brand-new ones. Because e-books and print on demand, two products essential to extending the life of a contract, did not exist pre-1978 (or pre-1998 for that matter), publishers will insist that renewals provide for them.

The big question however is, once authors know they can recapture their old contracts, will they blithely sign their e-book and POD rights away?

Authors who exercise their “bump” right will realize what a treasure the copyright law has bestowed on them. Why would they bestow it back on their publisher, especially if their publisher is paying a lower e-book royalty than is being offered down the street by some independent e-book publishers. (Full disclosure. E-Reads is down the street.)

Which means that independent e-book publishers might be in for windfalls starting 2013.

Publishers, authors and agents have a lot to think about between now and 2013, and it isn’t too soon to start thinking about it now.

For the full text of Article 203 of the 1978 Copyright Act, the provision that is causing all this turmoil, click here.

And for attorney Jassin’s detailed instruction for recovery of your rights, read Copyright Termination: How Authors (and Their Heirs) Can Recapture Their Pre-1978 Copyrights.

Richard Curtis

A fully copyrighted Macaque

After observing how a photographer took his picture, a macaque monkey snatched the camera, posed, aimed and clicked. Unlike a lot of amateurs he didn’t put his paw in front of the lens, or photograph his fur or his foot. He photographed his face -  and produced an absolutely memorable picture.

Okay, beginner’s luck. Hell, everyone knows that if you put enough macaques and cameras in a room the odds are that one of them will take a Pulitzer Prize-winning photograph. But the monkey’s next trick defies credibility: he assigned the picture’s copyright. At lease, he seems to have. Otherwise, how would Caters New Agency have ended up controlling the rights? Mike Masnick, writing for TechDirt.com, speculates:

“So here’s the legal question: how did the copyright get assigned to Caters? I can’t see how there’s been a legal transfer. The monkeys were unlikely to have sold or licensed the work. I’m assuming that it’s likely that the photographer, Slater, probably submitted the photos to the agency, and from a common sense view of things, that would make perfect sense. But from a letter-of-the-law view of things, Slater almost certainly does not hold the copyrights on those images, and has no legal right to then sell, license or assign them to Caters.”

The photo accompanying our article is NOT the self-portrait in question.  We don’t dare publish it because we’re afraid the monkey will lawyer up and sue us for copyright infringement.  But TechDirt doesn’t seem to have any such scruples, so you can admire the macaque’s handiwork by clicking here.

Richard Curtis

Are you ready for The Big Bump?

Those of you who read our posting in September (Copyright Asteroid Hurtling Towards Earth) know that The Big Bump is a major copyright event shaping up for the near future. As copyright attorney Lloyd J. Jassin informed us, thanks to a provision of the US Copyright code authors will be able to terminate contracts negotiated in the late 1970s even if those contracts appear to give the publisher rights forever.

“Starting in 2011,” Jassin writes, “the publishing and entertainment industries will be looking at the possibility of thousands of negotiations with copyright owners seeking to recapture their rights. Some call it ‘contract bumping.’ This powerful ‘re-valuation mechanism’ found in the Copyright Act allows authors (and their heirs) to terminate contracts 35-years after the contract date. The termination right trumps written agreements — even agreements which state they are in perpetuity.” [Italics ours]

Though nobody has panicked, the news has begun to percolate and publishing people and their lawyers are beginning to review their old contracts to determine what books are affected and to institute damage control measures.

For publishers the strategy is to commence negotiations with authors and agents now to extend or renew the old contracts or negotiate brand-new ones.  Because e-books and print on demand, two products essential to extending the life of a contract, did not exist pre-1978 (or pre-1998 for that matter), publishers will insist that renewals provide for them.

The big question however is, once authors know they can recapture their old contracts, will they blithely sign their e-book and POD rights away?

Authors who exercise their “bump” right will realize what a treasure the copyright law has bestowed on them.  Why would they bestow it back on their publisher, especially if their publisher is paying a lower e-book royalty than is being offered down the street by some independent e-book publishers. (Full disclosure. E-Reads is down the street.)

Which means that independent e-book publishers might be in for windfalls starting 2013.

Publishers, authors and agents have a lot to think about between now and 2013, and it isn’t too soon to start thinking about it now.

For the full text of Article 203 of the 1978 Copyright Act, the provision that is causing all this turmoil, click here.

Richard Curtis

“The copyright termination time bomb is ticking away,” writes Lloyd J Jassin in the summer 2010 Authors Guild Bulletin. Jassin is a publishing and entertainment attorney and an authority on copyright, and “time bomb” may be an understatement.

“Starting in 2011,” he writes, “the publishing and entertainment industries will be looking at the possibility of thousands of negotiations with copyright owners seeking to recapture their rights. Some call it ‘contract bumping.’ This powerful ‘re-valuation mechanism’ found in the Copyright Act allows authors (and their heirs) to terminate contracts 35-years after the contract date. The termination right trumps written agreements — even agreements which state they are in perpetuity.”

If you are a member of the Authors Guild you may read it in the organization’s invaluable magazine. Though we are not yet able to access it on the Guild‘s website Jassin has posted it on his own. You may – should – must – read it here.

That said, you can read here the piece we posted a piece in the spring of 2009, which we reproduce below in full. The issues raised a year and a half ago are even more critical today as the e-book industry matures and skirmishes have begun breaking out everywhere over reversion of rights to backlist titles.

The clock is ticking on the time bomb as we talk, and any author or agent who is not aware of the issues may pay a dear price for his or her ignorance.

Richard Curtis

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May 2009

Evan Schnittman observed it as a smear of light on the fringe of our galaxy, but it took media guru Mike Shatzkin to fully articulate its significance. And significant it is, a possible game-changer in the internecine struggle among authors, publishers, and Google. It has to do with a little-known provision of the US Copyright Act of 1978.

Schnittman, a Vice President of Business Development and Rights for Oxford University Press, mentioned it almost as an afterthought at the end of “There Will Be Disintermediation”, the final installment of a brilliant three part analysis in his Black Plastic Glasses website. “Mark your calendars, folks,” he declares, “the disintermediation begins on January 1, 2013. What happens on January 1, 2013? See for yourself in the US Copyright Act of 1978, section 203. {…Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant…}” [bold print is Schnittman's.]

“What if this change,” asks Schnittman, “was so significant that it could possibly even spawn an industry wide reset of the way we do things?” He leaves us panting for an answer, and Shatzkin provides it:

“It turns out there is a clause in the 1978 copyright law that allows any author to reclaim any copyright despite any contract with a publisher, simply by serving notice. The copyright can be reclaimed no less than 35 years and no more than 40 years from the book’s original publication. So books published in 1978 can be reclaimed by their authors from 2013-2018.”.

“One wonders” Shatzkin ruminates, “how many agents are aware of this law and are preparing for it.”

Actually many agents have been aware of it for years, and a number have invoked it. It’s commonly referred to as the “Widows and Orphans Provision,” because it entitles immediate family members to recover from publishers or certain derivative licensees (like movie companies) the copyrights to works published by a deceased author. (Don’t worry, men, widowers are included!) What some agents may not be aware of is that an author doesn’t have to be dead for the reclamation to take place; he or she simply has to live long enough to take advantage of the provision. For books licensed to publishers after January 1, 1978, the law is effective “thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.”

What surprises Shatzkin is that Article 203 has not come up in discussions about the Google Settlement, and we owe him and Schnittman a debt of gratitude for placing it on the table.

Until recently we’d have said that (except for a small number of evergreen backlist books) most titles coming up for reclamation under the Act are worth little or nothing. But with Google’s push to monetize old books, even moribund ones may have value either to their authors, their publishers, or Google. As Shatzkin puts it, for some old books “it looks like a new payday has been set up.”

For the full text of Article 203 of the 1978 Copyright Act, click here.

Richard Curtis

§ 203. Termination of transfers and licenses granted by the author

(a) Conditions for Termination. — In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions:

(1) In the case of a grant executed by one author, termination of the grant may be effected by that author or, if the author is dead, by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s termination interest. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it; if any of such authors is dead, the termination interest of any such author may be exercised as a unit by the person or persons who, under clause (2) of this subsection, own and are entitled to exercise a total of more than one-half of that author’s interest.

(2) Where an author is dead, his or her termination interest is owned, and may be exercised, as follows:

(A) The widow or widower owns the author’s entire termination interest unless there are any surviving children or grandchildren of the author, in which case the widow or widower owns one-half of the author’s interest.

(B) The author’s surviving children, and the surviving children of any dead child of the author, own the author’s entire termination interest unless there is a widow or widower, in which case the ownership of one-half of the author’s interest is divided among them.

(C) The rights of the author’s children and grandchildren are in all cases divided among them and exercised on a per stirpes basis according to the number of such author’s children represented; the share of the children of a dead child in a termination interest can be exercised only by the action of a majority of them.

(D) In the event that the author’s widow or widower, children, and grandchildren are not living, the author’s executor, administrator, personal representative, or trustee shall own the author’s entire termination interest.

(3) Termination of the grant may be effected at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.

(4) The termination shall be effected by serving an advance notice in writing, signed by the number and proportion of owners of termination interests required under clauses (1) and (2) of this subsection, or by their duly authorized agents, upon the grantee or the grantee’s successor in title.

(A) The notice shall state the effective date of the termination, which shall fall within the five-year period specified by clause (3) of this subsection, and the notice shall be served not less than two or more than ten years before that date. A copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect.

(B) The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.

(5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.

(b) Effect of Termination. — Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors, and other persons owning termination interests under clauses (1) and (2) of subsection (a), including those owners who did not join in signing the notice of termination under clause (4) of subsection (a), but with the following limitations:

(1) A derivative work prepared under authority of the grant before its termination may continue to be utilized under the terms of the grant after its termination, but this privilege does not extend to the preparation after the termination of other derivative works based upon the copyrighted work covered by the terminated grant.

(2) The future rights that will revert upon termination of the grant become vested on the date the notice of termination has been served as provided by clause (4) of subsection (a). The rights vest in the author, authors, and other persons named in, and in the proportionate shares provided by, clauses (1) and (2) of subsection (a).

(3) Subject to the provisions of clause (4) of this subsection, a further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is signed by the same number and proportion of the owners, in whom the right has vested under clause (2) of this subsection, as are required to terminate the grant under clauses (1) and (2) of subsection (a). Such further grant or agreement is effective with respect to all of the persons in whom the right it covers has vested under clause (2) of this subsection, including those who did not join in signing it. If any person dies after rights under a terminated grant have vested in him or her, that person’s legal representatives, legatees, or heirs at law represent him or her for purposes of this clause.

(4) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the persons provided by clause (3) of this subsection and the original grantee or such grantee’s successor in title, after the notice of termination has been served as provided by clause (4) of subsection (a).

(5) Termination of a grant under this section affects only those rights covered by the grants that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws.

(6) Unless and until termination is effected under this section, the grant, if it does not provide otherwise, continues in effect for the term of copyright provided by this title.

Okay, copyright mavens, it’s time to play Steal From The Stars. For a chance to beat the other couple and go to the playoff round, all you have to do is correctly rule on the following case:

Michel Houellebecq is a bestselling French novelist whose just-published thriller, La Carte et le Territoire, is “a runaway favorite to win the most prestigious of French literary prizes, the Prix Goncourt, this autumn,” according to John Lichfield writing in The Independent. However, Houellebecq has been accused of lifting verbatim several lengthy passages from Wikipedia. Wikipedia is the collaborative Internet encyclopedia, using anonymous contributors, that has virally grown into a proleterian alternative to the Encyclopedia Brittanica.

But here’s the wrinkle: Houellebecq freely admits that he lifted the passages,which include a word for 200-word Wiki piece about the sex life of flies. Furthermore, he does not consider what he did to be plagiarism. And neither does his publisher, the distinguished house of Flammarion. The author says the accusations are “ridiculous” and his use of the material was “artistic”; his publisher says Houellebecq’s lifted texts are stylistic eccentricities but not theft.

To understand their rationales you can read Lichfield’s article here. But don’t peek yet – you haven’t answered the quiz, remember?

The question is, did Houellebecq plagiarize?  Can Wikipedia sue him?

The answer is no and no. What he did may have been immoral, unethical or reprehensible. Or for all we know it was indeed artistic.  But it was not illegal.

The content published in Wikipedia is not copyrighted in the usual sense – that is, it is not covered by the US Copyright statutes designed to protect intellectual property.  That is because contributors are required to leave their claim to copyright ownership at the door, as it were, when their text is accepted for inclusion in the Wiki “book”.

Here’s how Wikipedia describes your right to use texts published on its website:

The licenses Wikipedia uses grant free access to our content in the same sense that free software is licensed freely. Wikipedia content can be copied, modified, and redistributed if and only if the copied version is made available on the same terms to others and acknowledgment of the authors of the Wikipedia article used is included (a link back to the article is generally thought to satisfy the attribution requirement; see below for more details)*. Copied Wikipedia content will therefore remain free under appropriate license and can continue to be used by anyone subject to certain restrictions, most of which aim to ensure that freedom. This principle is known as copyleft in contrast to typical copyright licenses.

* In compliance with the terms of Wikipedia’s license I am hereby linking back to the source of the above quote: http://en.wikipedia.org/wiki/Wikipedia:Copyrights

Contributions to Wikipedia do however come under the provisions of another body of copyright law known as the Berne Convention, but it is “formally licensed to the public under one or several liberal licenses including something called the “Creative Commons Attribution-Sharealike”. You can look it up on Wikipedia but for a clear-as-crystal exposition you can read this essay by Cory Doctorow.

Finally, here in its entirety is Wikipedia’s statement on copyright. We’re not sure Monsieur Houllebecq and his publisher read it before undertaking to use Wikipedia texts because they did not attribute their source.  So, technically they violated their Creative Commons license. Do you know a good avocat?

Richard Curtis

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Important note: The Wikimedia Foundation does not own copyright on Wikipedia article texts and illustrations. It is therefore pointless to email our contact addresses asking for permission to reproduce articles or images, even if rules at your company or school or organization mandate that you ask web site operators before copying their content.

The only WP content you should contact the Wikimedia Foundation about is the trademarked Wikipedia/Wikimedia logos, which are not freely usable without permission.

Permission to reproduce and modify text on Wikipedia has already been granted to anyone anywhere by the authors of individual articles as long as such reproduction and modification complies with licensing terms (see below and Wikipedia: Mirrors and forks for specific terms). Images may or may not permit reuse and modification; the conditions for reproduction of each image should be individually checked. The only exceptions are those cases in which editors have violated Wikipedia policy by uploading copyrighted material without authorization, or with copyright licensing terms which are incompatible with those Wikipedia authors have applied to the rest of Wikipedia content. While such material is present on the Wikipedia (before it is detected and removed), it will be a copyright violation to copy it. For permission to use it, one must contact the owner of the copyright of the text or illustration in question; often, but not always, this will be the original author.

If you wish to reuse content from Wikipedia, first read the Reusers’ rights and obligations section. You should then read the Creative Commons Attribution-ShareAlike 3.0 Unported License and the GNU Free Documentation License.

Google, the Authors Guild, and publishing industry leaders have filed a revised and sweetened settlement with the court. To those who are still opposed to it despite every reasonable effort to placate them, a request:

Spare us the hypocrisy.

You can dress up your objections to the Google settlement in legal niceties and pious pleas for fairness, but the truth is you’re just jealous that Google took initiatives that you lacked the vision to take – until it looked like there was money to be made. So now you want to gut the settlement so you can get a piece of the action you didn’t raise a finger or spend a dime to earn.

Where were you when a treasure house of literary works was abandoned? And isn’t it odd that now that someone has come along with a viable plan to recover that treasure and wants to make a reasonable profit, you have suddenly become passionate bibliophiles and champions of fairness?

Google, the publishing industry, and the Authors Guild have walked an extra mile to satisfy your so-called “concerns”. A revised and sweetened settlement has been presented to the court. Do the right thing: honor the men and women of good will who have forged it, the corporate leaders who deserve to profit from it and the generations of humanity that stand to benefit from it.

Read the sweetened terms of the settlement here. For additional observations read Google Settlement Under Attack for Making Treasure Out of Trash.

Richard Curtis

Pardon me, but do you have any legal training? I’m thinking of suing someone. My lawyer thinks I’m a crackpot, so I need a second opinion.

Listen to this:

About twenty years ago when I was a volunteer 4th grade teacher I created an adventure aimed at teaching children about government. I instructed the kids to pretend to be on a cruise ship that is blown off course by a storm. They ended up shipwrecked on a tropic island, and in order to survive they had to develop a government.

Fifteen years later, Lost was launched on television and guess what? It’s about a passenger jet that crashes on a topical island. Obviously, to cover their trail they changed my cruise ship into an airplane. Other than that it’s my exact same idea. And look at the similarities! In my story the kids have to organize; On Lost they have to organize. In my story the kids have to eat disgusting things – same as on Lost. So, I’m thinking of suing the producers of Lost for copyright infringement. Do I have a slam-dunk case or what?

Actually, I hadn’t thought of suing until I read that an author named Jordan Scott has brought a lawsuit against bestselling Twilight author Stephenie Meyer alleging copyright infringement. According to Gil Kaufman of MTV. com, Meyer allegedly plagiarized something called The Nocturne written by Scott when was fifteen. She posted it one chapter a time on her website. Here’s what Kaufman writes about Scott’s claim: “Though Scott’s book is set in 15th-century France and details a love affair between a young sorcerer and a teenage girl and Meyer’s book chronicles a doomed teenage love triangle between a human, a vampire and a werewolf set in modern times, Williams said the plot lines and some developments — detailed in more than a dozen examples in the suit — match too closely to be a coincidence.”

A major literary agency is urging its authors to opt out of the Google settlement. A lawyer is planning to file his opposition to the settlement.

Where were they when, year after year and decade after decade, a treasure house of literary works was abandoned? Along comes Google with a plan to recover those treasures from the trash heap and now those who abandoned them have become passionate bibliophiles. Or have they just become jealous that someone figured out how to make a profit on properties in which they had no interest?

From where I sit it’s not about books, it’s about money. In the course of rescuing countless works from the public domain and adding value to works that publishers, agents and authors deemed commercially valueless, Google figured out how to monetize those works. And now those selfsame parties want a piece of something they so recently turned their backs on. It reminds me of the oil producers who abandoned tracts because they couldn’t get oil from shale. Then someone figured out how to get oil from shale and now the oil companies claim they’ve been duped.

Perhaps a better analogy is the story of the Little Red Hen. None of her friends – the cat, the duck, the rat – offered to help her to sow the seeds, water the plants, till the soil, pull the weeds, harvest the wheat, thresh the grain, grind the flour or bake the bread. But when the bread was baked, all her friends wanted a piece.

The Little Red Hen said to them, “You shall have no bread.” And the moral of this classic childrens tale is that she had every right to say it to them.

So – why do I smell a cat, a duck, and a rat?

Though Google has sown the seeds, watered the plants, tilled the soil, pulled the weeds, harvested the wheat, threshed the grain, ground the flour and baked the bread, it has, after a concerted effort by responsible author and publisher organizations, worked with our community to make sure that everybody gets a piece of bread. But that doesn’t seem to be enough for some who have conveniently forgotten who did all the work, invested all the money, developed the technology, and embarked on a stupendous effort to identify the priceless treasures of civilization’s literary heritage and see to it that they will never be lost.

Google also did it to make a profit. And for that they are under attack. Forgive me for wondering about the profit motives of these knights who belatedly ride into our midst with flags of righteous indignation unfurled.

Richard Curtis

Cover of The Little Red Hen, Usborne First Reading series,