contract copyright question

MMo · Aug 10, 2006

Daniel Abraham said:
I have been discussing the legal mechanics of copyright protection; what is necessary to be able to protect/enforce--not license--a copyright. To this end, I have given the posters here accurate information regarding the nature of work for hire and the advantages of registration. Questions of trade practice and convention are distinct from these legal mechanics, though they are inevitably interrelated. I look forward to discussing these issues calmly and straightforwardly, but for that to occur some people will need to forsake slander and wild accusation in favor of an adult demeanor.

Perhaps if you had been more precise in your language from your first post, those of us with practical experience in the field would be more disposed to listen to you. Also, your short foray into name calling didn't help your cause either.

I quote from your very first post:

"It is usual for a copyright to be registered in the author's name.

"The copyright will then typically be assigned to the publisher for the duration of the book's run in print. Whether this assignment will cover only print, or will also extend to subsidiary rights, is one of the things discussed in contract negotiations."

For a "copyright" attorney to appear not to know the difference between assignment of copyright and grant of rights does color a working professional writer's opinion of the quality of advice later given.

As a retired writer who is currently involved in estate planning and is in the process of assigning my copyrights, I can assure anyone reading these messages that this is a process that is entirely different from "licensing" a grant of rights to a publisher. In fact, some of the copyrights being assigned are still subject to a grant of rights. There are provisions set forth in various publications available from http://www.copyright.gov providing information on how to assign copyrights, and none of them state signing a standard contract to publish said work assigns copyright.

I have, in a career spanning much more than twenty years, registered the copyright on exactly _one_ unpublished work: a collection of song lyrics I wrote with a co-worker who had ties to Nashville and who asked me to help her out. She moved on and took my lyrics with her; I registered the copyright and sat back to await infringement. Alas, none happened.

Mo

Deleted member 42 · Aug 10, 2006

Mac H. said:
Surely a more correct statement would be "No registration - no claim for statutory damages or attorney fees in a US courtroom - although injunctions, impounding and disposition of infringing articles, actual damages and profits of the infringer can still be persued in court." ?

That is a lovely statement. And completely accurate.

Daniel Abraham Esq. · Aug 10, 2006

HapiSofi said:
Copyrighting your novel will not protect you from lawsuits by third parties. Not copyrighting your novel will not make you vulnerable to lawsuits by third parties.

Of course. Never claimed otherwise.

Writing your novel automatically gives you the copyright. If someone tries to steal or otherwise infringe on your rights to the work before it's published, your copyright is legally enforceable. That means you can legally stop people who might try to steal your work. (Note: which hardly ever happens anyway.)

True, up to the point where you use the vague phrase, "legally enforceable." "Legal enforcement" usually means "going to court"--and you can't go to court unless you have a registration in hand. You can register after the infringement, of course--but by registering after the fact you have lost the right to claim statutory damages or attorney's fees, and are limited to recovering provable actual damages, without attorney's fees. This makes settlement less likely, and often makes pursuing the infringement not worthwhile.

If your book is published by a real publishing house, the contract will specify that copyright is retained by the author (you), and your publisher will register the copyright for you at the time the book is published.

True.

In almost all cases, the only thing registering your copyright in advance will do for you, is that if someone tries to steal or infringe on your work before it's published, you can not only stop their theft or infringement, but you can sue for damages. Again, this is doesn't happen very often. On the scale of probable and improbable threats to your peace of mind, it ranks below catastrophic religious conversion, but above being attacked by a panda bear.

The snark aside, yes--the only thing registering a copyright prior to infringement will do is make pursuing the infringement potentially worth your time. Whether having that ability is worthwhile is up to the author.

We're discussing book-length nonfiction, non-WFH novels, non-WFH single-author graphic novels, and single-author poetry and story collections. We're staying away from short works, scripts, and work for hire, including tie-ins and franchise work. And I'm not perfectly sure of this, but I think we're steering clear of textbooks and computer manuals.

You are limiting the discussion to these things, where you feel on safe ground. I, by contrast, have been discussing the mechanics of copyright protection, which apply regardless of the trade practices in one section of the publishing world.

I assume--possibly incorrectly--that while people are working on their novels they are also producing short stories, poetry, etc., and may be considering submitting portions of a larger work for publication somewhere. If so, they need to understand something about copyright, authorship, and work for hire; and they need to understand
1) That a copyright cannot be enforced--meaning, for additional clarification, that they cannot bring legal consequences down upon the head of an infringer---if the copyright has not been registered;
2) That they lose substantial remedies if the registration has not occurred prior to the infringement they would like to address; and
3) That loss of these remedies generally makes pursuit of an infringer impractical.
What, if anything, they choose to do with this knowledge is up to them. The important thing is that, having acquired the knowledge, they will be aware choices exist.

Deleted member 42 · Aug 10, 2006

Daniel Abraham said:
It is, indeed, fortunate for HapiSophi that she is posting under a pseudonym, or her penchant for baseless slanders above would risk laying her open to a defamation suit.

Oh, for asserting her opinion in a public forum?

That's adversarial, and hostile.

I'm understanding about "hazing" a new poster in a forum--particularly as I have been informed, privately, that there have been instances of scam artists on this forum in the past, and people here are in consequence on their guard. But HapiSophi's slanders go well beyond such legitimate hazing.

It isn't a matter of "hazing." Jenna, and the community, would not tolerate that kind of behavior.

The truth of the matter is that you don't seem to know what you're talking about.

You really don't. Your very first post was, well, less than accurate. You subsequently have attempted to present your assertions in very different lights, without much success.

HapiSofi has been here a long time. You might have done some research; you'll note that while she's not known for turning the other cheek, she is known for being honest and accurate.

And a fierce advocate for authors.

Casting aspersions on anonymity as a pot shot is a pretty lame tactic. If you don't know why it's lame, you really aren't safe on the Internet.

I do know HapiSofi, and I respect her. Yeah, I know, I "work for publishers."

But in the long run, publishers, like authors, work for readers. I know too, that publishers cherish their authors. A reliable author is money in the bank. And for the most part, until you get into the fine atmosphere of marketing and admin, the people who work at publishers, from the proofreaders, the editors, the designers and even the typesetters, they love books. They believe in the care and feeding of authors, and in treating them well.

Sure, I recommend using an agent in negotiations, and reading the contract carefully and consulting a publishing attorney, but I don't see publishers as adversaries; publishers are in fact in league with their authors. And a publisher who mistreats authors, well, you hear about it pretty quickly.

Your tone is not what I'd call a model of charm school poise. You rely on condescending remarks (to wit, the reference to the distinction between hostile and adversarial, and your response to Birol), and innuendo, and cries of slander. Your posts increasingly ramble, and seem remarkably thin-skinned for a practicing attorney.

You make an assertion, then, when called upon it, try to weasel out of the initial incorrect assertion; Jenna drew attention to one instance, and there are others.

You both sneer at semantic distinctions (a really dumb tactic in a community of writers) and then keep attempting to make them.

Keep in mind, all we have to judge you by are your words, and they're not really making a stellar impression.

Speed · Aug 10, 2006

This guy never admits he's wrong. Even when he's really, really wrong.

Maybe he's used to dealing with people who don't keep track?

eqb · Aug 10, 2006

Medievalist said:
I do know HapiSofi, and I respect her. Yeah, I know, I "work for publishers."

I don't work for a publisher, but I do know HapiSofi, and I trust her knowledge of publishing. Mr. Abraham, I don't know you, but it's hard for me to take you seriously when your pronouncements run counter to everything I hear from numerous industry professionals--writers, editors, agents, and, yes, lawyers.

Daniel Abraham Esq. · Aug 10, 2006

I thought we'd already disposed of this, but apparently not.

MMo said:
the difference between assignment of copyright and grant of rights

The difference? An assignment is a comprehensive, rather than a limited, grant of rights. Not the only way it's done, true; as I admitted upthread, using the broader term "grant of rights," which includes assignment, would have been a better idea. But hardly a legitimate basis for the resultant howling spree.

As a retired writer who is currently involved in estate planning and is in the process of assigning my copyrights, I can assure anyone reading these messages that this is a process that is entirely different from "licensing" a grant of rights to a publisher. In fact, some of the copyrights being assigned are still subject to a grant of rights.

It sounds as though you are preparing a trust of some kind. Wise move, but a wholly different matter from assigning rights to a publisher when a work is slated to be published for the first time.

Assigning rights in the event of first publication is not uncommon in a situation such as HapiSophi was vehemently arguing in favor of earlier, where the publisher handles all the subsidiary and foreign rights in addition to domestic publication. The fact that the work is assigned does not mean that the transfer is of unlimited duration, or that the publisher's obligations and the author's rights of payment are not thoroughly spelled out.

MMo · Aug 10, 2006

Daniel Abraham said:
The difference? An assignment is a comprehensive, rather than a limited, grant of rights. Not the only way it's done, true; as I admitted upthread, using the broader term "grant of rights," which includes assignment, would have been a better idea. But hardly a legitimate basis for the resultant howling spree.

Excuse me. Posters on this board called _you_ to task about the correct term being grant of rights, not assignment of copyright.

And you've not heard "howling spree" from me.

It's amazing how you can play with words.

There's a saying in politics, that if someone repeats "something" (see Jenna, I cleaned that up) loudly enough and often enough that it can be perceived as truth. Especially if there are nuggets of truth buried in the avalanche of information. The specific "truth" to which I refer here has nothing to do with the content of your posts on copyright, however; I believe we have publishing pros with more stomach for that fight than I have who are quite capable of standing up to you. The "truth" to which I refer is your current inuendo that you were aware of the difference between assignment and grant of rights early on.

When I first posted on this board, I was immediately challenged: "Who are you? Why are you here? Do you have a hidden agenda?" I then backed up and introduced myself (and gave a couple of references) and was welcomed. The only thing approaching a challege to your motives to being here was a polite request for information as to where you are licensed. Quite frankly, I couldn't help wondering early on (and certainly can't now that you have spent what could be counted as many billable hours on an obscure message board) just what is your agenda? How did you find this obscure message board, and what was at the time a brand new thread by a new writer making a fairly routine request for information about rights?

Mo

Daniel Abraham Esq. · Aug 10, 2006

Beth Bernobich said:
I don't work for publisher, but I do know HapiSofi, and I trust her knowledge of publishing. Mr. Abrahams, I don't know you, but it's hard for me to take you seriously when your pronouncements runs counter to everything I hear from countless industry professionals--writers, editors, agents, and, yes, lawyers.

That's Abraham without an "s," Beth.

You "know" HapiSophi? Hmmm. Do you know her real name? Where she works? Do you meet for coffee? Do your kids, if any, play together? Or do you just "know" her from her prolific pseudonymous appearance on this board?

If the latter, you might want to consider that, unlike her, I am posting under my own name, and that in consequence, unlike her, I have a professional reputation to uphold--and a good one, despite her intemperate efforts at slander upthread.

I have no idea what you have heard in the past, or from whom. Nothing I have posted here regarding legal mechanics--work for hire, registration, remedies--is inaccurate. And, despite HapiSophi's continued insistence on a truly Clintonian parsing of the word "enforcement," in the end she has agreed with and echoed most of what I have said, though having initially decided to assume an opposing position she has taken great pains to obscure that fact.

Where she and I differ is in the discussion of trade practice; is it necessary for writers to register their works on their own? If so, when and under what circumstances? People can disagree on these things, but I suspect that if we were able to discuss trade practices like adults, here too we would probably end up more in agreement than not. That, however, would require HapiSophi to abandon her current commitment to namecalling, and to intentionally misrepresenting what I have said.

Deleted member 42 · Aug 10, 2006

MMo said:
How did you find this obscure message board, and what was at the time a brand new thread by a new writer making a fairly routine request for information about rights?

Mo

Oddly this thread was not active for over a month, until Mr. Abraham posted.

MMo · Aug 10, 2006

Medievalist said:
Oddly this thread was not active for over a month, until Mr. Abraham posted.

I was imprecise. My apologies. ... a thread with only a dozen or so posts...

Mo

Roger J Carlson · Aug 10, 2006

Daniel Abraham said:
You "know" HapiSophi? Hmmm. Do you know her real name? Where she works? Do you meet for coffee? Do your kids, if any, play together? Or do you just "know" her from her prolific pseudonymous appearance on this board?

I DO know HapiSofi's name.
I DO know where she works.
I HAVE had coffee with her.
Our children have not played together.

She happens to be a senior editor at a major New York publisher. It is not for me to "out" her.

I will take her word over yours any day. For one thing, I may well be submitting my work for her consideration and in that instance only her word has any weight. I doubt that I will ever be submitting my work to a lawyer for publication.

Birol · Aug 10, 2006

Daniel Abraham said:
That's Abraham without an "s," Beth.

And it's HapiSofi with an 'f', not a 'ph', but I'm almost certain you know that and have just been taking cheap potshots at someone whose knowledge and expertise has made you look less than knowledgeable in your chosen profession.

Daniel Abraham said:
People can disagree on these things, but I suspect that if we were able to discuss trade practices like adults, here too we would probably end up more in agreement than not. That, however, would require HapiSophi to abandon her current commitment to namecalling, and to intentionally misrepresenting what I have said.

You keep accusing individuals of name-calling and not behaving as adults, but the responses to you that I've seen have been remarkably tempered. Also, I would point out that the namecalling originated with you.

Again, the accusation that others are not behaving above-board seems like a cheap tactic to divert attention from your own misinformation, contradictory statements, and failure to justify your stance in this discussion.

Daniel Abraham Esq. · Aug 10, 2006

MMo said:
Excuse me. Posters on this board called _you_ to task about the correct term being grant of rights, not assignment of copyright.

And you've not heard "howling spree" from me.

It's amazing how you can play with words.

There's a saying in politics, that if someone repeats "something" (see Jenna, I cleaned that up) loudly enough and often enough that it can be perceived as truth. Especially if there are nuggets of truth buried in the avalanche of information. The specific "truth" to which I refer here has nothing to do with the content of your posts on copyright, however; I believe we have publishing pros with more stomach for that fight than I have who are quite capable of standing up to you. The "truth" to which I refer is your current inuendo that you were aware of the difference between assignment and grant of rights early on.

When I first posted on this board, I was immediately challenged: "Who are you? Why are you here? Do you have a hidden agenda?" I then backed up adn introduced myself (and gave a couple of references) and was welcomed. The only thing approaching a challege to your motives to being here was a polite request for information as to where you are licensed. Quite frankly, I couldn't help wondering early on (and certainly can't now that you have spent what could be counted as many billable hours on an obscure message board) just what is your agenda? How did you find this obscure message board, and what was at the time a brand new thread by a new writer making a fairly routine request for information about rights?

I will admit--have admitted--to an extremely minor sloppiness in my initial use of the word "assignment." It did not--does not--justify what did, quite rapidly, become a howling spree--even if you are not one of the participants in it.

Yes, I was asked where I was licensed. I replied. And I expanded on someone's Google search upthread; if anyone wants further information, let them ask. Apparently, you missed, or chose to ignore, the "challenges" which have appeared multiple times in the form of accusations like "incompetence" and "criminal negligence." Such language and behavior is, quite frankly, beyond the pale--in addition to being wrong.

As to how I found this board, I came upon it in the course of following up some links. There were a few issues that seemed interesting.

I absolutely agree with you that my recent participation here has taken up more time than I had originally anticipated. Unfortunately, one poster's commitment to baseless accusation has made it necessary to devote more time to this diversion than I would have preferred.

Deleted member 42 · Aug 10, 2006

Daniel Abraham said:
That's Abraham without an "s," Beth.

You "know" HapiSophi? Hmmm. Do you know her real name? Where she works? Do you meet for coffee? Do your kids, if any, play together? Or do you just "know" her from her prolific pseudonymous appearance on this board?

If the latter, you might want to consider that, unlike her, I am posting under my own name, and that in consequence, unlike her, I have a professional reputation to uphold--and a good one, despite her intemperate efforts at slander upthread.

I know HapiSofi.

I also know that slander is oral.

I'd think an attorney with a clue would know that too.

You appear to be equally clueless about the 'net. You may be posting under your name, but there's no proof of that.

On the Internet, no one knows you're a dog.

I think you probably are "the real" Daniel Abraham because of textual patterns and various other pieces of data.

But anonymity on the 'net doesn't really mean a whole lot.

MMo · Aug 10, 2006

Daniel Abraham said:
I have no idea what you have heard in the past, or from whom. Nothing I have posted here regarding legal mechanics--work for hire, registration, remedies--is inaccurate. And, despite HapiSophi's continued insistence on a truly Clintonian parsing of the word "enforcement," in the end she has agreed with and echoed most of what I have said, though having initially decided to assume an opposing position she has taken great pains to obscure that fact.

Hmmm. Precise language is not the sole property of our former president. In fact, a truer description of the parsing would be "legalese." We are all familiar with the necessity for precise language in contract negotiations; witness the current tale-of-woe of the misplaced $2.13 million comma. (http://www.theglobeandmail.com/servlet/story/RTGAM.20060806.wr-rogers07/BNStory/Business/home for just one of the many stories concerning this lack of precision)

Witness also, certain clauses in contracts of a certain less-than-stellar but not-to-be-named-in-this-thread publisher:
(Copyright) “shall be taken out in the name of the author.”
What does it mean? A cursory reading might indicate that the "publisher" will register the copyright; while the "publisher" can argue from a legally defensible stance that it does not say that. Precise language eliminates the loopholes of weasel-words.

But even that particularly un-writer-friendly contract seems to know the difference between "Clause 1, Grant of Rights" and assignment of copyright.

Mo

eqb · Aug 10, 2006

Daniel Abraham said:
That's Abraham without an "s," Beth.

Apologies for the misspelling.

You "know" HapiSophi? Hmmm. Do you know her real name? Where she works? Do you meet for coffee? Do your kids, if any, play together? Or do you just "know" her from her prolific pseudonymous appearance on this board?

I've known her for years, in person, and not just from this board. That includes her real name, her professional background, and her long-standing reputation for helping new writers navigate the tricksy shoals of publishing. You came in here mixing up basic terms like "copyright" and "grant of rights", while addressing regular posters in a condescending tone. Maybe you do know your particular corner of the publishing world, but it would help if you engaged in a real discussion, instead of offering pronouncements from on high.

And since I'm here, and a naturally curious person, what brought you to Absolute Write in the first place?

--Beth

Speed · Aug 10, 2006

Medievalist said:
I think you probably are "the real" Daniel Abraham because of textual patterns and various other pieces of data.

Nah. The real Daniel Abraham is an author. Pleasant fellow. Writes for Wild Cards. We're dealing with a secondary or tertiary non-default Daniel Abraham.

Birol · Aug 10, 2006

It's not that uncommon of a name. I'm sure there's more than one of them out there.

Deleted member 42 · Aug 10, 2006

Speed said:
Nah. The real Daniel Abraham is an author. Pleasant fellow. Writes for Wild Cards. We're dealing with a secondary or tertiary non-default Daniel Abraham.

That Daniel I know; he's in New Mexico, and wrote a decent SF novel for Tor earlier this year.

And he knows me by name.

JennaGlatzer · Aug 10, 2006

Daniel Abraham said:
despite her intemperate efforts at slander upthread.

Ohhhhh boy. I'll go get the mop.

roach · Aug 10, 2006

A few random observations:

1) How many PA authors have we seen take their contract to their family lawyer (usually someone practicing real estate or estate planning law) who said "Yep, it's good" only to find the horrible truth later on? Just because one is a lawyer doesn't mean one knows all the ins and outs of copyright law. So I'm not inclined to give more weight to the arguments of a lawyer over those of people in the publishing industry, especially when those arguments run counter to everything I have heard/know about how copyright and copyright registration work.

2) Enforcing one's copyright goes beyond taking one to court. As Medievalist pointed out earlier, one doesn't need to register, or even show proof of registration, to send a DMCA take down notice to an infinging site. That is enforcing one's copyright and doesn't involve the courts. Should the DMCA take down notice not succeed, then the courts might need to be involved. However, as per the LOC's own FAQ, one has up to 5 years to register copyright after publication in order to gain the ability to sue for damages.

3) If one is going to get snotty about how one's name is spelled in a message board post, one should endeavor not to make the same mistakes, repeatedly, in one's own posts. (Hapisophi != Hapisofi).

4) I don't buy that the fact that because certain posters have worked or do work in the publishing industry makes their posts suspect. Then again I ran a publishing company for 9 years so maybe I should be disqualified from the conversation as well.

Bubastes · Aug 10, 2006

roach said:
A few random observations:

1) How many PA authors have we seen take their contract to their family lawyer (usually someone practicing real estate or estate planning law) who said "Yep, it's good" only to find the horrible truth later on? Just because one is a lawyer doesn't mean one knows all the ins and outs of copyright law. So I'm not inclined to give more weight to the arguments of a lawyer over those of people in the publishing industry, especially when those arguments run counter to everything I have heard/know about how copyright and copyright registration work.

This bears repeating over and over again. Heck, I'm an intellectual property lawyer with a little copyright law experience (but NOT in the publishing industry) and I won't even touch this subject because I know what I don't know. If I get a book contract (someday, someday), I'm definitely hiring an industry expert to review it for me. Trying to be my own lawyer in an area outside of my expertise is just stupid.

roach · Aug 10, 2006

Completely off topic, but in the Internet Bingo game, is there a square for making the claim that a post is libel, and is there a modifier for mixing up libel with slander?

Bufty · Aug 10, 2006

Funny, if Daniel had simply used the brevity and clarity approach, instead of the torrent of legalese, the first and last sentences of his original post would have adequately confirmed the existing answers to the original poster's question.

Daniel Abraham said:
It is usual for a copyright to be registered in the author's name.
###
It is impossible to say more without seeing the actual contract, but if the deal is on the up and up, the copyright will be registered in the author's name.

contract copyright question

MMo

Deleted member 42

Daniel Abraham Esq.

Deleted member 42

Speed

eqb

I write novels

Daniel Abraham Esq.

MMo

Daniel Abraham Esq.

Deleted member 42

MMo

Roger J Carlson

Moderator In Name Only

Birol

Around and About

Daniel Abraham Esq.

Deleted member 42

MMo

eqb

I write novels

Speed

Birol

Around and About

Deleted member 42

JennaGlatzer

wishes you happiness

roach

annoyed and annoying

Bubastes

bananaed

roach

annoyed and annoying

Bufty

Where have the last ten years gone?