Showing posts with label copyright. Show all posts
Showing posts with label copyright. Show all posts

01 June 2016

The Truth Is Plain To See

by Robert Lopresti

A couple of warnings: I am not a English copyright attorney.  (I'm sure that astonishes you.)  And I am discussing a court case that could easily fill a book.  So take this for what it is worth.  You can read more about it here and here.

Do you remember "A Whiter Shade of Pale?"   It was a huge hit for Procol Harum in 1967, and is one of the most played and recorded songs of all time (almost 1,000 covers).  Can you call up the tune to memory?  If not, try this:


Most people I have talked to, if they remember it at all, remember that ethereal organ part.  And that is what we are here to discuss (don't worry; it will connect to the subject of this blog eventually.)

According to 40 years of labels and liner notes, Pale was written by two members of the band: Gary Brooker (piano and vocals)  and Keith Reid (lyricist).

But neither one of them was responsible for  that famous organ part. That was Matthew Fisher who played Hammond organ in the band.  He stayed with the group for three albums and then split.  His first solo record included a number with the refrain "Please don't make me play that song again."  What could he have been referring to, I wonder?

He rejoined the band when it reformed in the 1990s, but quit in 2004 and filed  a lawsuit, asking to be recognized of co-creator and co-owner of Pale.  (It turns out that this was not the first time someone threatened to sue over this ditty, by the way: "Where there's a hit, there's a writ.")   After Fisher's case bounced from venue to venue the highest court in England, namely the Law Lords (sounds like a rock band, doesn't it?) got to make their first ever ruling on a copyright case involving a song.  (It turned out to be that court's last decision as well, being then replaced by a Supreme Court.)

So what does it mean if Fisher were to win?  According to his opponent, Gary Brooker: "Any musician who has ever played on any recording in the last 40 years may now have a potential claim to joint authorship.  It is effectively open season on the songwriter."

A strong argument.  But I felt there had to be some reasonable middle ground between "Joe went twang on the chorus so he's entitled to ten percent" on  the one hand, and on the other "the composer of the most famous organ solo in pop music contributed nothing to the  song."  And sure enough, the Law Lords, clever folks that they are,  agreed with me.

They ruled that Fisher should have a credit and 40% of the music royalties, starting with the day he filed the suit.  He gets nothing for the years before he went to court, which seems reasonable.

So what does that have to  with the subject of this blog?  Glad you asked.  Before I send a story to an editor I first send it to R.T. Lawton.  He does the same with me.  We read the stories, make suggestions and corrections and generally help each other's literature inch ever closer to perfection.

But we don't get paid for that.  At what point does a helpful first reader become a co-author?

When I sent my story "Street of the Dead House" to the anthology nEvermore! the editors, Nancy Kilpatrick and Caro Sole, made significant suggestions that improved the tale.  Without them would my tale have been selected for two Best of the Year collections? 

I don't know.

Did they get a share of the reprint money?

That I know.  They didn't.

But I think editors are a special case, somewhat like record producers.  They get their appropriate fee but don't expect a writing credit.

Speaking of books, I revised this piece after discovering Procol Harum: The Ghosts of A Whiter Shade of Pale by Henry Scott-Irvine.  He makes it clear that the story is even more complicated than I thought.  Any fan of the band should read the whole book.  Anyone interested in copyright issues should at least read the last two chapters.

I want to give the last word to Chris Copping. Copping replaced Fisher in the band in the 1970s which means he probably played that organ part more than anyone else alive.  He perhaps has a less romantic view of that melody than most of us.

In this essay he discusses joining Procol Harum and then analyzes the song virtually note for note, explaining what he thinks Fisher created and what he borrowed from Bach.

His conclusion on what Fisher is owed? "Let him have the ring tones."

06 January 2016

Mixed Feelings, Copyright Edition

by Robert Lopresti

"There are so many grey areas in Copyright Law that the publishing industry looks like a lint trap." -Peter Berryman

I had better start this thing by saying that I am neither a lawyer nor a copyright expert, although I know more about copyright than the man on the street. (I also know it's dangerous to be on the street. Get up on the sidewalk, man!)

Where was I? Oh, yes.

It happened that I was telling a friend of mine about a story I wrote many years ago, and I wanted to email her a copy. However, it turned out I had no electronic copy (it having been born several computer systems ago). Instead of digging up a paper copy to scan for her I thought I would try to find it on the web.

That may sound odd, but it happens that the original publisher (I will call them BuyerCo) purchased it specifically to run it on the web. I hadn't seen it on their website in years, but you never know.

BuyerCo
Well, it wasn't at BuyerCo's page, but it was up on the web. Specifically I found it on the site of a middle school English teacher in another country. She had a unit about mysteries and she had chosen my story as an example.

Talk about mixed feelings. I was honored to have been selected, and pleased that students were reading my story, but had she put it up without permission? What exactly was that teaching the students?

The more I pondered the more entangled I got. After all, I couldn't exactly complain because my story was on the web. I had sold it specifically for that purpose! Maybe BuyerCo had a legitimate complaint against her (although I don't know what the fair use rules are for educators in her country), but they weren't paying me to patrol the web, were they?

After a long thinking session I sent a note that read pretty much like this:

Hello,

I was surprised yesterday to find my story, "Title," on your website. While I am gratified to see students reading it, I am wondering who gave you permission to put it up for the public? I don't recall doing so. Perhaps it was BuyerCo, who has the right to publish it online?

In case you are interested, here is another story of mine, one that is available with no rights issues.

Best wishes,

The link connects to "Shanks Holds The Line," a story I had given Alfred Hitchcock's Mystery Magazine permission to put on their website Trace Evidence.

I received a reply the next day. The teacher explained that she had retired three years earlier and had had no idea the webpage was still up at all. A colleague had sent her a copy of the story for use in her unit on mystery and she had no idea how/where the colleague had acquired it. She told me she had just spent an hour figuring out how to get into the software, found her password, and taken down the page. And she thanked me for offering a different story to use.

I sent her a thanks for her service to all those students.

And so the story has vanished from the web once again, which brings up three questions:
  1. Am I better off because the story has returned to obscurity?

  2. Is BuyerCo better off because their property, which they have not used in years as far as I know, is once again hidden?

  3. And isn't copyright interesting?

03 January 2016

Darkness and Light

by Leigh Lundin

On the 1st of January, two seminal and opposing books entered the public domain. One of these books transmuted the world. The other, which came about as an indirect result of the first, transfigured it.

Mein Kampf
When Self-Publishing Goes Horribly Wrong

Mein Kampf was actually published by private press, Franz Eher Nachfolger GmbH, purchased in December 1920 by the fledgling Nazi party. Hitler’s original title, Viereinhalb Jahre (des Kampfes) gegen Lüge, Dummheit und Feigheit, or, Four and a Half Years of Struggle Against Lies, Stupidity and Cowardice… You begin to see the problem of a book written by an angry, poorly educated man. Publisher Max Amann quickly shortened the title to Mein Kampf (My Struggle), but it would take subsequent editions to correct the many grammatical and spelling errors.

Hardly a runaway best seller, Nazi party members were its intended audience. As Hitler gained power and prominence, sales increased and during the Third Reich, the book was often given as awards and gifts. The government gave special boxed editions to wedding couples.

Hitler expressed later regret, saying he’d never have written the thing if he’d known he’d actually ascend to supreme leadership in Germany. Part of that regret was that he’d too clearly spelled out his plans for what he considered Germany’s historical enemy, France, and his intentions for Russia, Poland, Britain, the Jews and the Slavs.

Few Germans actually read the book and even Mussolini admitted he hadn’t been able to wade through it. Foreign translations were deliberately softened. Houghton-Mifflin offered an ‘official’ abridged English translation that omitted Hitler's most anti-Semitic and militaristic statements. When a small Pennsylvania publisher, Stackpole and Sons, released a complete translation by William Soskin on that same day, Houghton-Mifflin sued and won, claiming exclusive rights.

An alarmed American UPI reporter in Germany took action of his own. A young Alan Cranston (yes, THAT Alan Cranston, later to become Senator Cranston of California), issued his own translation, the parts Houghton-Mifflin left out, that more accurately reflected Hitler’s horrific vision. Again Hitler’s publishers sued in American courts and won– but not before Cranston managed to get a half-million copies into readers’ hands.

From the end of WW-II until now, the state of Bavaria has held the copyright and refused to allow re-release of Mein Kampf in Germany, although with millions in print during the war years, copies were readily available. Now that copyright has expired. Bavaria will authorize annotated editions, printings that contain critical assessments.

A corollary to Godwin’s Law says that mention of Hitler or Nazis brings discussion to an end, but better is to come.

Diary of Anne Frank
The Girl Who Would Be Famous

For her bat mitzvah, Dutch schoolgirl Annelies Frank received a red-and-white plaid diary, one that would become known around the world. For two years, Anne bared her soul about her feelings and thoughts of those around her and the outside world. Her dream was to become a famous writer and journalist. And so she did.

It turns out the edition of Anne Frank’s Diary students read in school from the 1950s through the 1970s was edited to remove criticism of Anne’s mother and observations about her own, growing sexuality. A few parents (usually without sullying their minds by reading the text), have attempted to ban the book from American schools as recently as 2010 and again in 2013, calling the writings ‘pornographic’.

In fact, multiple editions are known to exist, at least two in Anne’s handwriting. In March 1944, Gerrit Bolkestein, a minister of the Dutch government in exile, announced on the underground Radio Oranje that diaries would be collected after the war to memorialize the suffering of the Dutch people. Upon hearing that, Anne began to rewrite her diary on loose-leaf sheets.

In August 1944, an unknown party betrayed the Frank family to the occupying Nazis. Six months later, Anne and her sister Margot died in Bergen-Belsen weeks before the camp was liberated by Allied troops.

Former Hitler Youth, Nazis, neo-Nazis, right-wing extremists and holocaust deniers have repeatedly contended the book is a forgery. Multiple examinations, forensic tests, handwriting analysis, and court-directed studies have shown otherwise.

Now comes a disturbing claim from the Anne Frank Fund in Switzerland: In fighting off the loss of copyright (and loss of royalties), they now assert Anne’s father, Otto Frank, was co-author. They also argue that their copyright claims should start the clock in the 1980s, the first appearance of the unexpurgated version.

The foundation’s short-term greed threatens to dilute the message and meaning of those precious writings. Fortunately, courts have ruled that an editor is not a co-author. Nevertheless, the Swiss foundation continues to lay claims to copyrights.

Two historically significant documents that could hardly be more different, one born in darkness, the other forged with hope. Have you read either? Or both? Which do you recommend for school curricula?

26 July 2015

Copyright? Elementary, My Dear Watson.

by Dale C. Andrews

Arthur Conan Doyle published his first Sherlock Holmes story in 1887 and his last in 1927. There were 56 stories in all, plus 4 novels. The final stories were published between 1923 and 1927. As a result of statutory extensions of copyright protection culminating in the 1988 Copyright Term Extension Act, the American copyrights on those final stories . . . will not expire until 95 years after the date of original publication -- between 2018 and 2022 . . . . The copyright on the 46 stories and the 4 novels, all being works published before 1923, [has] expired.
                                                 Klinger v. Conan Doyle Estate, Ltd.
                                                 755 F. 3d 496, 497 (7th Cir. 2014)
                                                 per Judge Richard Posner
Is there anything left to say about Sherlock Holmes? The fame of Arthur Conan Doyle’s iconic detective has now stretched across three centuries, with no expiration date in sight. . . . Recent books and graphic novels find the detective trading bon mots with Henry James, escaping the island of Doctor Moreau and squaring off against a zombie horde. One can also pick up Sherlock-themed tarot decks, rubber duckies, crew socks and — for undercover work — a “sexy detective” outfit featuring a deerstalker and pipe. And, needless to say, the digital landscape is ablaze with blogs, fanfic, Twitter feeds, podcasts and innumerable tributes to the cheekbones of Benedict Cumberbatch. What’s left? As Professor Moriarty once remarked, “All that I have to say has already crossed your mind.” 
                                                Daniel Stashower
                                                The Washington Post, July 12, 2015
                                                Reviewing The Amazing Rise and Immortal Lives of Sherlock Holmes                                                  by Zach Dundas

Sir Ian McKellen in Mr. Holmes
       This week’s summer movie roll-outs included Mr. Holmes, which features Sir Ian McKellen’s highly anticipated take on Sherlock Holmes at 93 —  battling age and dementia as he tries to unravel one last case. The movie, based on the 2005 Holmes pastiche A Slight Trick of the Mind by Mitch Cullin, actually offers the viewer two takes on Holmes, since the cinema version of the story features a “movie within a movie” in which Nicholas Rowe, who earlier portrayed the detective in Young Sherlock Holmes, once again assumes the role in Watson’s version of the mystery that confounds the elderly Holmes.  (Holmes views the movie version, based on Watson's account, in an attempt to jump start his failing memories of the case.)  The fact that the movie offers a new take on Holmes —  indeed, two new takes, and that the same week yet another Holmes retrospective hit the bookstores —   Zach Dumas' The Amazing Rise and Immortal Lives of Sherlock Holmes — is hardly surprising. For 130 years Sherlock Holmes has been, well, ubiquitous.

       Ellery Queen had this to say in his (err, “their”) introduction to The Misadventures of Sherlock Holmes:   "more has been written about Sherlock Holmes than about any other character in fiction. It is further true that more has been written about Holmes by others than by Doyle himself."  We will return to that Ellery Queen anthology, but for now the important point is that no other detective  —  not Miss Marple, nor Hercule Poirot, nor Ellery himself  —  has so tempted other authors to lift their pens in imitation and tribute.  And all of this begs a legal question:  How, pray tell, have these new takes on Sherlock Holmes been reconciled with the copyright protection originally secured for the character by Arthur Conan Doyle?

     A Proviso before going forward here: While I am a lawyer, I am NOT a copyright and intellectual properties lawyer. So, a caveat  when I discuss copyright rules it may be a little like asking your family doctor to perform brain surgery.  But with that in mind, the simple rule is that in the United States under the terms of the 1998 Copyright Terms Extension Act the author has copyright protection for 95 years following the publication of the author’s work. So if you are inclined to dabble in pastiches (and I plead guilty on that one), well, you need to do this only with the permission of the original author (or their estate) if the character you are using was created less than 95 years ago.

       How easy is it to run afoul of copyright rules? Well, as promised above, lets return again to our old friend Ellery Queen for the answer to that question. In 1944 Queen published an anthology collecting most of the Holmes pastiches and parodies then in existence, The Misadventures of Sherlock Holmes. Of all Ellery Queen volumes this one is likely the rarest. If you want to secure a copy on Amazon it will probably set you back around $150.00.  Why? Well, the anthology, it turns out, was published without first securing a license from the estate of Arthur Conan Doyle. As a result, it was quickly pulled from publication when the estate threatened to sue, and only a limited number of volumes ever reached book stores.   (As an aside, notwithstanding all of the above, a rough version of The Misadventures of Sherlock Holmes is, as of this writing, rather mysteriously available for downloading on the internet!  Just click here.)

       But, in any event, Ellery's stumble over the copyright rules was way back in 1944, right? Back then the first Sherlock Holmes stories were not even 60 years old. What about today? In 2015 almost 130 years separates us from the first Holmes adventure, A Study in Scarlet. So Sherlock should have squared his tweed-draped shoulders and marched into the public domain almost 35 years ago, right?  Well, not so fast. The Doyle estate has historically taken a different (and predictable) approach when it comes to counting those intervening years.

       As the quote at the top of the article points out, the “last bows” of the Sherlock Holmes stories were the ten final mysteries written by Arthur Conan Doyle between 1923 and 1927.  And, counting it up, the 95 year copyright on those stories has yet to expire  and won’t begin to for another three years. The Doyle estate has argued that a “fully rounded” (their words) Holmes and Watson arose only upon completion of the entire Doyle canon.   Thus, the estate argues, copyright protection continues until 2022, i.e., 95 years after the last story was published in 1927.  Pause and think about this:  The Copyright laws speak of a protection period running for 95 years from the first appearance of a character, but the Doyle estate argues that this in fact means 95 years from the last appearance of the character.  The argument sounds more like George Orwell than it does Sherlock Holmes!

       The Doyle estate implemented their concededly expansive view of copyright protection in a rather clever manner. The estate decided to charge $5,000 in licensing fees for every use of Holmes and Watson, reasoning that the amount, while substantial, was far less than the cost of subjecting the “fully rounded” theory to a test in litigation. So their assumption was that those wishing to write about Homes and Watson might grumble, but they would pay.  All went well with this approach until Leslie Klinger came along.

       Klinger co-edited an anthology of Sherlock Holmes pastiches and parodies in 2011 titled A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon. Klinger dutifully paid the $5,000 demanded by the Doyle estate before publishing that collection. But when he and his co-editors decided to proceed with a sequel, In the Company of Sherlock Holmes, they also decided that enough was enough and refused to pay for a license. The Doyle estate escalated the dispute, threatening to sue if publication occurred without a license. Klinger responded by suing the estate, claiming that Holmes and Watson were in the public domain and had been since 1982, that is, 95 years after A Study in Scarlet was published. As a result, Klinger argued, no license was required.

       A federal district court, and ultimately the Seventh Circuit United States Court of Appeals, eventually settled the matter. In May of 2014 the Seventh Circuit agreed with the district court’s decision and held that the Doyle estate’s argument was wrong. The court instead agreed, as Klinger had argued, that Sherlock Holmes entered the public domain, and became “fair game” for other writers, 95 years following the publication of the first Holmes story.

       But how does one handle the refinements to Holmes and Watson that occurred in those later stories, that is, the “rounding” of the characters on which the estate had relied? Well, the court answered that question by concluding that only Holmes and Watson as portrayed in the original series of stories by Doyle are currently in the public domain; that is, the characters as portrayed prior to 1923. And any subsequent nuances to the character  those “well rounded” attributes on which the estate’s arguments were based  remain protected by the copyright laws.

       How does this work in practice? Well, as Barack Obama, among others, has observed “a good compromise leaves everyone unhappy.” The estate doesn't get its $5,000, but the author of a pastiche nonetheless writes at his or her peril since the use of attributes only arising in the last 10 Holmes mysteries infringes the continuing copyright on those stories.

       The Seventh Circuit’s opinion only identifies a scant few areas in which Doyle’s characters became "more rounded” in the later Holmes stories that are still copyright protected: First, Holmes (apparently) likes dogs; Second, Watson was married twice. (On that latter point, I think W.S. Baring-Gould set the number of marriages at three, but I won’t argue the point  particularly without a license!)  So the “rounding” of Sherlock Holmes and Watson may be limited, but what does this rule mean for other characters who appeared in a series of works over the years?  Let us take, for example, my old friend Ellery Queen.

       Ellery’s earliest appearance was in The Roman Hat Mystery, which was published in 1929. Thus, all of the Queen canon is still copyright protected. But what happens in 2024, when the first appearance of Ellery reaches its 95th birthday and the canon begins its seriatim march into the public domain? Arguably under the Seventh Circuit’s reasoning Ellery can be used freely by other authors as of that date.  But beware:  Ellery better be wearing pince-nez glasses, and he might be advised to only employ a Duesenberg for transportation.  He should also have retired, with a wife and son, to Italy. All of those early aspects of Ellery disappeared by the middle of the Queen canon as Ellery Queen and the Inspector were "rounded" by Frederic Dannay and Manfred B. Lee.  In fact the first evidence of the Ellery of the latter half of the canon did not appear until about 1936, with the publication of Halfway House. So unlike Sherlock, there are unmistakable differences between early and late Ellery!

       And if all of this were not confusing enough, let’s throw into our copyright primer the fact that parodies of copyrighted materials, unlike pastiches, fall completely outside of the protection of copyright without worrying at all about the passage of time.  This exception to copyright protection is established and was famously re-invigorated in 2001 when the Eleventh Circuit held that The Wind Done Gone, a re-telling of Gone With the Wind from the perspective of the enslaved residents of Tara, did not infringe Margaret Mitchell’s copyright of the original story.

       So let us return again to Queen and see how that rule would work.  Well, apparently the great Jon L. Breen could have freely published his humorous short story mystery “The Lithuanian Eraser Mystery,” (EQMM March, 1969), in which “E. Larry Cune” solves a New York City theatre murder.  That story is a parody, no question.  Tongue is firmly planted in cheek.   But, by contrast, Breen needed a license in order to publish “The Gilbert and Sullivan Clue,” (EQMM Sept. 1999) since Ellery himself solves that theatrical-based mystery. And what about Francis Nevins famous pastiche “Open Letter to Survivors” (EQMM May, 1972), a story that, while clearly featuring Ellery, never in fact names him as the young detective? I asked Mike Nevins, a copyright professor himself, whether he secured a license for that story and his reply was that Frederic Dannay, then the editor-in-chief of EQMM, never brought up the matter one way or the other when the story was accepted by EQMM for publication.

       But back to Sherlock  when you see that new movie, Mr. Holmes, you might reflect on all of this, and what it can take to breathe new life into another author's character.   And think about the "rounding" of Holmes that had nothing to do with Arthur Conan Doyle  particularly Sherlock Holmes as portrayed in the movie and in Mitch Cullin's original pastiche.  As Holmes explains in each, part of his task in telling this story on his own, without Watson as narrator, is setting the record straight, removing the "excesses" of the Watson versions of his stories.  As an example, you will note that Sir Ian McKellen’s Holmes prefers cigars to a pipe. That “rounding” of the famous detective’s character has absolutely no precedent in the Arthur Conan Doyle canon, either before or after 1923. So at least when Sherlock enjoys his cigar we needn't go back to the Holmes canon looking for references that might prove significant for those pesky copyright laws.

       Come to think of it, a similar observation might be made concerning the title of this article.  Arthur Conan Doyle's Sherlock Holmes never once used the phrase "elementary my dear Watson!"

04 August 2011

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