Monthly Archives: August 2011

Nyah Nyah JahJah, Says Judge Dismissing Copyright Suit

The laws governing copyright infringement are complex, confusing and sometimes contradictory.  Underlying them, however, is a simple concept that anyone in doubt can rely on to keep out of trouble.

But all too many authors and artists waste their money, and that of those they accuse of stealing their work, in lawsuits that ignore the common sense rule that the broader and more general the idea, the harder it is to claim ownership. Conversely, the more specific the expression of that idea, the easier it is to prove plagiarism and similar infringements.

The latest example of this obtuseness is the action brought against photographer Ryan McGinley by one Janine Gordon, who is better known as JahJah. Her photographic stock in trade, writes the New York Times’s Randy Kennedy, is youth culture, including such subjects as “concert mosh pits and bull-riding rings and …glue sniffers in Brazil.”

In his self-defense McGinley said that his pictures and Gordon’s did not “look alike in the slightest.” What she was really complaining about is “the images share the same fundamental idea.” The judge expressed it far more explicitly than McGinley dared: JahJah Gordon’s “apparent theory of infringement would assert copyright interests in virtually any figure with outstretched arms, any interracial kiss, or any nude female torso. Such a conception of copyright law has no basis in statute, case law or common sense.”

Perhaps the most damning evidence was that of the judge’s own eyes: “The dictates of good eyes and common sense lead inexorably to the conclusion that there is no substantial similarity between Plaintiff’s works and the allegedly infringing compositions of McGinley.” (See Copyright Lawsuit Against Ryan McGinley Dismissed by Randy Kennedy.)

So, if you feel your work has been plagiarized, before reaching for your lawyer revisit the common sense guideline laid down by copyright.gov:

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. http://www.copyright.gov/help/faq/faq-protect.html

Richard Curtis

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Task #1 for Apple’s New CEO: Amazon Tablet

Apple’s new CEO Tim Cook was just welcomed with a goody bag filled with 1 million shares of his company’s stock. That was the easy part. Now he’s going to have to earn it.

But as much as he would like to focus on developing products envisioned by the retiring founder Steve Jobs (who will remain active in the company for as long as he is able), he may first have to shore up the iPad as it comes under fire from rivals seeking a share of Apple’s commanding market for the tablet computer.

In particular Cook will have to deal with Amazon, which is not only developing a tablet of its own but planning to offer it to consumers dirt-cheap.  Amazon has not concealed its strategy of selling its Android-driven gadget at a loss – hundreds of dollars below iPad’s base price of $499 – just to pull the rug out from its competitor, according to Garrett Sloan of the New York Post.

Amazon has a long way to travel to bite into Apple’s 25 million unit lead, but no observer of Amazon would bet against its coming up with a product, a price and a marketing campaign that could close the gap faster than anyone would believe possible. Maybe Jeff Bezos should name the new tablet Orange, to facilitate comparison between Apples and Oranges.

Details in $99 tablets: Price is right

Richard Curtis

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Irene Departs, Trailing Clouds of Glory

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All Clear…

Tale of the Tape.

Hurricane Irene passed through New York with less damage than feared, except for the unnerving, incessant torrential downpour beating against apartment windows for eight hours straight.  Some inconvenience but a price most of us were happy to pay given how bad it could have been.  But typical of New Yorkers, a lot of grumbling when the New York Times did not show up on our doorsteps at 6:00 AM, forcing us to read the news on our iPads.

Emergency management in New York City was a model of intergovernment cooperation, municipal, state and federal.  Hats off to Mayor Bloomberg, Whatever one’s politics, we felt ourselves to be in completely confident hands, supported by Governor Cuomo.

We expect public transportation to be restored for business as usual Monday morning.  We can now exhale, and begin emptying our bathtub and dumping buckets with water reserved for emergencies.  We will consume the gourmet K-rations we set aside for power outages – only in New York does one stock up on bagels and lox spread, sushi, and croissants to relieve suffering when trapped in one’s apartment for more than six hours.

There were no broken windows that we heard of, but a number of neighbors disregarded instructions to leave windows untaped. Prize for best window-taping goes to the artist across the street from us.  Our hearts go out to him or her when the time comes to remove all that beautiful sticky cross-hatching.

Richard Curtis

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Hurricane Greetings from King Lear

Blow, winds, and crack your cheeks! rage! blow!
You cataracts and hurricanoes, spout
Till you have drench’d our steeples, drown’d the cocks!
You sulphurous and thought-executing fires,
Vaunt-couriers to oak-cleaving thunderbolts,
Singe my white head! And thou, all-shaking thunder,
Smite flat the thick rotundity o’ the world!
Crack nature’s moulds, an germens spill at once,
That make ingrateful man!
King Lear

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Digerati Have Most to Lose in Hurricane

Thanks to Andy Borowitz we have this dire assessment of consequences facing Internet users as Hurricane Irene bears down on the United States East Coast.

“WASHINGTON – As Hurricane Irene prepared to batter the East Coast of the United States, federal disaster officials warned that Internet outages caused by the storm could force people to interact with other people for the first time in years. News of the possible interpersonal interactions created panic up and down the coast as residents braced themselves for the horror of awkward silences and unwanted eye contact. And as officials warned people in the hurricane zone to stay indoors, residents feared the worst: conversations with members of their immediate family.”

Read the rest: “Internet Outages from Hurricane Could Force People to Interact with Other People, Officials Warn”

RC

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If The Boss Can Recover His Songs, You Can Recover Your Books

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

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Steve Jobs Looks Mortality in the Eye

He is Steve Jobs. Look upon his works, ye Mighty, and despair.

Early in 2009, when Jobs’ was forced to temporarily give up leadership of Apple in order to combat pancreatic cancer, we reminded our readers of Charles De Gaulle’s grim remark: “The graveyards are full of indispensable men.”

“Every business captain,” we said, “needs to post that quotation on the wall in front of his or her desk as a reminder that great leaders must be great delegators. Jobs is as indispensable as corporate heads can possibly be, but adverse health has forced him, as it did De Gaulle, to look at his mortality and relinquish to others tasks that threaten to sap the energy he needs to restore his health.” (See My Irreplaceable You.) Jobs’s medical leave in ’09 was enough to depress the value of Apple’s shares by 2% in the domestic stock market and as much as 7.9% overseas.

And now the day of reckoning has arrived for Steve Jobs and the company he has fashioned like a masterpiece wrought by a modern-day Cellini: today he resigned as CEO, admitting he was no longer able to effectively run it.  The reins will be picked up by Chief Operating Office Tim Cook.  In his poignant statement Jobs said “I have always said if there ever came a day when I could no longer meet my duties and expectations as Apple’s CEO, I would be the first to let you know. Unfortunately, that day has come.”

What will become of Apple? In the Wall Street Journal Yukari Iwatani Kane writes that “People familiar with the situation have said that Mr. Jobs continues to be active at Apple and is closely involved in the company’s product strategy. Apple watchers don’t expect that to change even after Mr. Cook takes over.”

The first test of that statement came today when the stock market opened. The last trade before the announcement on Wednesday August 24th, was $376.18. Overnight, before the market opened today, shares dropped over $12.00 a share. However, it closed at 373.72, an unremarkable drop of $2.46, less than -0.65%‎. This would seem to suggest that sensible investors see that Jobs’s signature on his company is deeply embedded in the quality of its products and service. It doesn’t hurt that in the last quarter Apple reported blowout earnings of over 7.3 billion dollars.

The company is scarcely vulnerable. Its presiding visionary, however, is all too mortal. We wish him godspeed on his journey.

Richard Curtis

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Publishing Spoken Here

Traduttore, Traditore (“The translator is a traitor”) – Italian proverb

One of the critical roles literary agents play is that of translator. We perform the task on several levels. The most obvious and fundamental is explaining the nomenclature of publishing to the uninitiated author. The writer who sells his first book to a publisher and reads his first contract is plunged into a sea of words that may be totally unfamiliar to him, or that are used in a totally unfamiliar way.

“Force majeure,” “net proceeds,” “matching option,” “warranty,” “discount”—these need to be defined for the novice author. There are many difficult concepts to be grasped, such as “advance sale,” “midlist,” “fair use,” “reserve against returns,” “pass-through,” and “hard-soft deals.” The language has its own slang, too, and our initiate hears bewildering references to who handles the “sub rights,” what is the tentative “pub date,” and what happens when the book is “o.p.’d.”

Agents patiently try to demystify these terms, but it may take many years of experience before our clients are completely at ease with them. It may well be true that what distinguishes professional authors from their amateur brothers and sisters is that the pros have undergone this linguistic rite of passage and are now able to sling around “pre-empts,” “first proceeds,” and “escalators” with the best of ’em. But there is another, and profoundly more important, job for the agent-translator to perform beyond explaining to his clients the terminology of the book industry. I’m talking about using language to forge and strengthen the bonds between authors and publishers. For, while the goals of both may ultimately be identical, they are usually achievable only after many conflicting viewpoints and interests have been reconciled.

Sometimes those conflicts become intense, and if allowed to go unresolved can cause serious if not fatal breakdowns in the relationship. An agent, standing between these potential adversaries, must find common ground for them to stand on, else all – including his commission – is lost. And though their differences may be genuine, sometimes they are semantic, and if an agent can pinpoint and settle the linguistic problems, perhaps the more substantive ones will not seem quite so insuperable. Although it’s a stimulating challenge, not all of us enjoy sticking our heads up in this no-man’s land.

You must not think, however, that editors cannot be seriously wounded. And it is important to know that fact, because a hurt editor (or art director or royalty bookkeeper) may not want to work as hard for an author who has irked him or her as for one who has been supportive, tolerant, and forgiving. This is not to say that editors are so thin-skinned they fold the first time someone criticizes them. But I do know that if an author or agent injures an editor’s feelings seriously enough, it can undercut his or her initiative, and that may eventually redound to an author’s detriment.

Some years ago I phoned a bookkeeper who had been verbally abused by an author a few months earlier. This author was owed another check, and I wanted to know where it was. “Funny thing about that check,” she said, deadpan, “it keeps falling to the bottom of my pile. Must be gravity or something.” It is therefore vital that editors and their colleagues in other departments of publishing companies be handled with a certain degree of diplomacy, and it is in the language of that diplomacy that most agents are adept. We have learned that “a soft answer turneth away wrath.” And most of the time, we are able to rephrase or paraphrase the blunt demands, the raw needs, the hard feelings, the hostile remarks, of our clients into gracious packages of civility that convey everything the author intended without damaging the fragile sensibilities of the person at whom they were directed.

I’ve been keeping some notes about discussions recently conducted with editors and am happy to offer herewith a few examples of this process in action. Some of them are tongue in cheek, others are deliberately exaggerated. Still others will sound stilted, and that is because, unfortunately, that is the way I speak. Let’s take one of the commonest problems in our business, that of getting editors to make up their minds about submissions. Editors are burdened with a great many tasks that curtail their reading time. They may be inundated with manuscripts to read. They may be on the fence about a submission and wish to postpone a decision for a while. They may be soliciting opinions or sales estimates from colleagues in their company. They have many legitimate reasons for taking a long time to read submissions.

At the same time, some editors seem to have a considerably dimmer sense of the passage of time than people in other fields, such as airline management or television programming. So, one of the first lessons one learns in the agenting profession is how to translate an editor’s promises about time. “I’ll read it overnight” too often means, “I’ll get around to it in a week.” “I’ll read it in a week” means, “I’ll be back to you in a month.” And “I’ll read it in a month” may well mean that the manuscript is lost.

In order to reasonably hold editors to their promised schedules, agents use the elegant phraseology of coercion. “As I’m loath to keep manuscripts out of circulation,” I might write, “may I trouble you for a decision?” If this fails to yield a reply, I might escalate to something more pointed, like, “My client is getting restless,” or, “I’m under some pressure to determine where we stand.” Sometimes a humorous approach is in order. I’m a great believer in the power of teasing to accomplish that which solemnity cannot, and I’m not above a little sarcasm under the appropriate circumstances: “When I submitted that manuscript to you, the oceans were two inches lower.” If an editor has sat on a submission for an unconscionably long time, I will invariably get a phone call from my client saying, “You tell that sonofabitch that if we don’t have a decision by Friday, I’m personally gonna come down there and rearrange his prefrontal lobes with an ax haft! ” Justified though that ultimatum may be, it is couched in language this is terminally infelicitous. By the time I’m through modifying it, it may sound something closer to this: “As you don’t seem able to make up your mind, suppose we say that if I haven’t heard from you by Friday, I’ll put another copy of the manuscript into play elsewhere, and you may take as much time thereafter as you wish.”

And sometimes I’ll put a finer point on my message with this veiled warning: “Do let me know when your work load is down to a more reasonable size so that our agency can resume submitting books to you.” I’m certain that you must be saying to yourself, “How is an editor going to get these messages if the agent pussyfoots around that way?” The answer is, editors get these messages loudly and clearly, for unless one is incredibly dense, he pr she will have little doubt that a knife has been placed against the throat.

Another common problem for agents is, of course, overdue checks. Authors are remarkably articulate when it comes to expressing the discomforts of financial deprivation and to depicting the character and ancestry of those who conspire to keep them in that condition. Unfortunately, most editors would go through the roof if exposed to the authors’ invective. Enter the honey-tongued agent, and though that agent might love nothing better than to say, “Pay up or we’ll vaporize you,” it’s more likely he or she will say something a bit more subdued. Perhaps a subtle form of extortion: “It would be to your advantage to remit payment promptly so as to avoid scheduling delays,” In plain English, this informs the editor that unless his company ponies up the dough, the agent isn’t going to deliver certain manuscripts that the publisher desperately needs to put into production. Because a late manuscript can wreck a production schedule at fearful cost to a publisher, the wise editor will undoubtedly give the check-processing machinery an extra-hard spin when he or she gets a message like that from an agent.

I can think of lots of other ways that agents refine the harsh language of their clients without sacrificing effectiveness. For instance, though we may be thinking, “My client just turned in a real turkey,” what we are telling an editor is that, “My client thought you might like to see a first draft of his book before he starts polishing it.” Or, “My client is going to sue you into Rice Krispie-sized pieces” becomes, “My client is contemplating contacting his attorney, at which point the matter will be out of my control.” Or, “My client thinks your editor is so incompetent, he couldn’t spell “cat” if you spotted him the C and the T!” becomes, “I’m not certain that the author’s and editor’s views about the book are entirely compatible.” * “My client is so upset he’s taking big bites out of his living room sofa” translates into, “My client is finding it hard to understand why . . .”   “You’ll use that cover on my client’s book over his dead body!” may be altered to, “My client is pretty determined.”

Here’s a brief glossary of other agently euphemisms commonly employed when tempers start to overheat: * You: “I’m thoroughly disgusted with those people.” Agent: “My client is somewhat disenchanted.” * You: “If I had that editor’s throat in my hands . . .” Agent: “I’m not sure my client is completely comfortable working with you.” * You: “They’re lying and cheating.” Agent: “My client feels he may have detected some discrepancies. * “You: “What a crummy deal?” Agent: “Some of the terms leave something to be desired.” * You: “I wouldn’t sell another book to that butcher if he were the last editor on earth.” Agent: “Let’s have lunch.”

The transmutation of hurtful language works the other way around, too, so that when we have to tell a client that his publishers hate his book so much they want to manure a cornfield with it, we may say something like, “It didn’t live up to their expectations,” or, “They found it lacking in certain respects.” Or an editor’s remark to the effect that a certain author couldn’t write his way out of a trash can liner becomes, “They don’t feel you’ve reached your potential quite yet.”

Here are a few others.

*Editor: “This material is simply lousy.” Agent: “Your editor is disappointed.”

* Editor: “What language is your client writing in, anyway?” Agent: “Your editor pointed out some obscure passages.”

* Editor: “Your client is the rudest person I’ve ever had the misfortune to work with.” Agent: “Your editor seems to have overreacted to what he perceives as a slight.”

* Editor: “Is your client crazy, or what?” Agent: “I’m not sure your editor appreciates your sense of humor.”

Of course, not all agents approach matters as delicately as this. Some of us are in fact quite plainspoken, and even the most tactful among us realizes that there are unavoidable occasions when we must unsheath a steel fist from the velvet glove. Still, it is gratifying to know that at least when it comes to the language one may still find reminders of the time when publishing was a profession for civilized ladies and gentlemen.

Richard Curtis

This article was originally written for Locus, The Newspaper of the Science Fiction Field. It’s reprinted in Mastering the Business of Writing. Copyright © 1990 by Richard Curtis. All Rights Reserved.

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S&S Acquires Print-Only Distribution of Locke

“We will never acquire a book unless e-book rights are included.”

That is the prevailing doctrine governing the Big Six book business and it is as unshakeably rigid as the Credo of the Catechism. For a publisher to buy “P” without “E”  is to all but succumb to the status of printer, to become the dog wagged by the tail of e-books.

To make an exception, to acquire just the print rights and allow the author to retain e-book, sets such a treacherous precedent for the rest of the publishing industry that it would take an extraordinary author to move a publisher off that position.

Enter John Locke.

For those who confuse him with the 17th century philosopher (and no mean author himself), a visit to his website will quickly set you straight. No one will confuse A Girl Like You or The Love You Crave with his namesake’s Essay on Human Understanding.  The 21st century Locke is the phenomenal indie writer whose self-published Amazon thrillers have launched him into the rarefied stratosphere of the world’s most successful authors.  Above the stratosphere, actually, because to many fellow writers he resides on Olympus.

If he doesn’t reside there he has just moved a little closer, for Simon & Schuster has made him an exception to the aforesaid doctrine. Next winter S&S will commence print-only distribution of his books. which Locke himself will package.

One reason why publishers have resisted print-only deals is simple economics: it’s hard to imagine how to make a profit competing against cheaper e-book editions of the same titles. That goes in spades for John Locke whose Kindle editions sell for $.99, compared to a mass market or trade paperback in the vicinity of $7.99 or $16.99 respectively. But when you have a blockbuster author jamming bandwidth with downloads of his e-books, it stands to reason that a profitable percentage of that audience will want to own a hard copy.  For Simon & Schuster it absolutely stands to reason.  Which occasioned Locke to tip his hat to S&S and declare “I applaud Simon & Schuster’s incredible vision.”

So do we. Simon & Schuster’s publishing establishment allies may complain that S&S has betrayed them by opening the gates to the invading hordes of the self-published.  But there’s an even more important military lesson in the Locke deal: If you can’t lick ’em, join ’em.

Richard Curtis

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