Legal Corner
Sheila J. Levine
(212) 866-5353
E-Mail: sheillev.aol.com
Disclaimer
These Notes on contracts and other legal issues are prepared by Sheila J. Levine, Esq. for writers unfamiliar with the pitfalls of authorship and publication. They are more general in nature than intended to be definitive of the subjects examined, thus should not be taken as answers to particular legal problems. The Notes may not include exceptions to general rules or take into account specific factual circumstances that may result in a different conclusion. They are not intended as personal legal advice and should not be construed as creating an attorney-client relationship. Questions of law, construction of legal documentsand remedies for perceived violations of rights should be addressed to a publishing attorney.
Statutory Right to Terminate Exclusive Licenses
The Copyright Act of 1976 decrees that the author shall have a right exercisable only once for each separate literary work under exclusive license and for a brief window of time after 35 years from the date of a work’s publication to terminate a license. (There are some qualifications to this, but not necessary to explain the concept). There are two provisions concerning...
Revolutionary Times For Publishers, Writers and Readers
The publishing world is a vortex of change. There has been a steady flow of news reports, court filings by the Department of Justice, judicial decisions followed by settlements, merger announcements, controversial contract terms for new digital imprints and much more besides. We find publishers, brick and mortar bookstores, and distributors all trying to adjust their business...
Authors and Domain Names: Claiming Rights to Names and Titles
Productive authors increase in status and over time become recognized by the general public as the source of their literary works. At the beginning of a career authors simply start out as names. They become brands when readers recognize them as sources for goods and services in a trademark sense. Names can acquire value separate from the individuals who answer to them. Authors...
Creator’s Right to Compensation for Misappropriated Concept
A writer’s income generally comes from royalties and licensing revenues for works which are protected by copyright. Section 102(a) of the U.S. Copyright Act states that “original works of authorship fixed in any tangible medium of expression” are protected by copyright. By definition in Section 102(b) ideas and concepts do not have copyright protection. A writing known in the...
Writers Be-Wary: Distribution and Control of Creative Material
Originally published as a Guest Blog on Writer Beware® September 7, 2012
Authors create the content blog aggregators need for their web collections. Each gains in different ways. For the aggregator, the greater the variety of material and the steadier the receipt of content the more valuable the aggregated website. Because...
The (Un)Satisfactory Manuscript
The traditional publishing process begins with an editor’s enthusiastic response to an author’s outline, proposal, and sample chapter, followed by an offer and contract from the publisher. Once the contract is signed the focus shifts to the quality of the final manuscript. The publishing contract includes a “d...
What Rights Should an Author Grant in a Contract with a Traditional Publisher?
When lawyers talk about “standard” clauses and courts refer to publishing contracts as “standard agreements” it is not to suggest that there is a standard form such as we expect for certain real estate transactions. What we mean by “standard” is that the contract clauses address similar concepts of rights and duties expressed in language differently crafted by each publisher. ...
List, Net, Agency and Wholesale: How Authors Get Paid
Whether money is the motive for writing – “[n]o man but a blockhead ever wrote, except for money” (Samuel Johnson) – or only one of the rewards for those lonely hours of composition, how does the author get paid? Before she reaches the “royalties” clause in her publishing contract she has to negotiate the “grant of rights”. What is she giving up for what she is getting? In...
Ownership of Work Included in a Compilation
To have a work included in a compilation is a goal eagerly sought after by authors. It is a distinction for a story or article to appear in an anthology. What should the author be alert to? The question comes up in discussing digital aggregation of compilations in the context of authors’ rights under the Copyright Act. The answer is found in sections 103 and 201(c) of the...
Literary Agents: Performance and Entitlement to Commissions
Literary agents are the filters to the publishing industry; the first readers; and mainly indispensable. Acquisition editors rely on their tastes and take their calls. In relation to authors they are like as adventurers to booty: they seek and sell. Their fee, a commission for placing an author’s work, is spread over the economic life of the publishing contracts their efforts...
Reverting Literary Property When Publisher Allows it to Go “Out of Print”
In consideration for publishing and distributing an author’s work and for the risk that revenues from publication will fall short of expenses publishers take an exclusive license for the term of copyright subject to two forms of termination and reversion: by statute and by contract. I have discussed statutory termination in an earlier Note. Under that right authors have an...
Unintended Perils of Collaboration from Ambiguous and Incomplete Agreements
Literary collaboration is a marriage of convenience. The parties have to preliminarily agree to their separate and joint responsibilities for the completion and submission of their work. What they think they know and can trust about each other is likely to be more than their ignorance of the other person’s work habits and literary abilities. Past performance does not necessarily...
Protecting Creative Material in the Entertainment Industry: Not all Registers Are Equal
Authors ask whether they can protect their ideas by which they mean the conception rather than the expression. The answer is that copyright law protects ideas only to the extent they are organized in a creative way and fleshed out in language. When the question is put in the context of television and movie properties there is another consideration. Something tangible has to be...
Self Help: What is a Take Down Notice and How Does it Work?
The principal legal mechanisms for protecting copyright of works recopied on the Internet without permission and in violation of an author’s copyright is laid out in the Digital Millennium Copyright Act (DMCA). The major aggregators of content have developed policies and take down forms in compliance with the DMCA. If a copyright owner finds unlawful copying of her material she...
Copyright Protection of Works Included in Compilations and Collections
Copyright law protects authors who have registered their works. They are generally well attuned to copyright for their separately standing works, but less so when it comes to shorter works accepted for publication in compilations such as collections and anthologies. Section 103 (a) of the Copyright Act states that “[t]he subject matter of copyright … includes compilations.” A “...
Falling Into and Out of the Public Domain
Once in the public domain content (which includes characters) is free; to copy or create derivative works. P.D. James’ Death Comes to Pemberley and a continuing stream of novels featuring Sherlock Holmes are recent examples. Until works fall into the public domain content and characters are not free. They are copyright protected. Authors (defined in the broadest sense...
Ownership of Copyright for Joint Works
The Copyright Act §101 defines a “joint work” as “work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of the unitary whole.” Embedded here are several difficult concepts. “Intention” from whose perspective? And, what contributions qualify for joint authorship? The questions are important because “...
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