We are thrilled to announce that Rachel Brooke has joined Authors Alliance in the role of staff attorney.
Rachel Brooke comes to Authors Alliance from The Center for Investigative Reporting, where she served as the inaugural First Amendment Fellow. In this role, she appealed and litigated Freedom of Information Act requests, advised on access-related issues, and provided other legal support to a bustling newsroom. Prior to attending law school, she worked as a literary agent in a small New York City agency.
Rachel holds a J.D. from NYU School of Law and is licensed to practice law in California.
“I’m excited to join the team at Authors Alliance and use my legal skills and publishing background to support authors and advocate for policies that balance knowledge-sharing and the enjoyment of rights,” says Rachel.
Rachel’s passion for serving authors will be a tremendous boon as we advance our mission by continuing to develop educational resources and advocating on behalf of authors who write to be read. We look forward to introducing Rachel to the Authors Alliance community!
Authors Alliance, joined by the Library Copyright Alliance and the American Association of University Professors, filed a petition with the Copyright Office for a new three-year exemption to the DMCA as part of the Copyright Office’s eighth triennial rulemaking process. Our proposed exemption would allow researchers to bypass DRM measures in order to conduct text and data mining research on both literary works that are published electronically and motion pictures. Further details can be found in the full text of the petition, available here.
Text and data mining allows researchers and others to gain new insights into language and culture, scientific inquiry, and civic participation. For example, text and data mining can be used to examine the evolution of language over time or to identify important but overlooked findings in scientific papers.
While the possibilities of text and data mining are great, researchers face limitations in their ability to use the technique. They must either rely on collections of works created by others, which may be missing important, relevant works, or they must build their own collections, a prohibitively time-consuming process in which researchers manually scan printed books or capture video playback in real time.
Authors Alliance believes that researchers building their own collections of works should be able to bypass DRM measures to extract data directly from sources such as eBooks and DVDs. The DMCA prohibits such circumvention, even if the intended use would not infringe anyone’s intellectual property rights. If this exemption is granted, researchers will be empowered to build relevant collections and conduct this important research.
How you can help
Historically, the Copyright Office has scrutinized the factual record when deciding what exemptions ought to be granted. Assuming the Copyright Office considers our exemption request, we will need to make a more detailed submission to the Copyright Office later this year that fully sets out the legal and factual basis for the exemption. If your research has been impacted by the inability to access electronically published literary works or motion pictures, we want to hear from you. Please reach out to us at info@authorsalliance.org and share your story.
Authors Alliance is grateful to Clinic students Jason Francis and Alistair McIntyre, supervised by Clinic Director Catherine Crump and Teaching Fellow Gabrielle Daley, at the Samuelson Law, Technology & Public Policy Clinic at Berkeley Law for their assistance filing this petition and for this blog post.
Book publication contracts deserve careful attention because their terms control the rights and obligations of authors and publishers for the life of the relationship between the parties, which can potentially last for decades. Our guide to Understanding and Negotiating Book Publication Contracts helps authors to understand common clauses in publication contracts, recognize how the terms might affect their goals for their books, and negotiate for author-friendly variations of those terms.
In this two-part series, we apply the lessons from our guide to real-life contract terms and illustrate how authors can consider the implications of contract terms and formulate author-friendly variations that advance their interests. This second post covers options, non-competes, the look and feel of a work, and assignment of the agreement. To read the first post addressing grant of rights clauses, subsidiary rights, and rights reversion, click here.
Future Works: Options
Sample Term: “Author agrees that it will offer Publisher the first right to publish Author’s next work […] on the same terms and conditions as those contained herein […].”
Why it could be problematic: The term above could be problematic because it doesn’t give the author the opportunity to decline the publisher’s offer, purporting to lock the author into working with the publisher on his next book. It also could be problematic because it says that the second book’s contract will have the same terms as the first book’s contract. This could be bad for an author whose first book is wildly successful and who may attract an offer of higher royalties for the second book, but must accept the royalty rates agreed upon in the contract for the first book. (Of course, the opposite could be true: the performance of an author’s first book could mean that the terms offered for a second deal may be lower than those offered for the original deal: But this clause doesn’t help with that situation, either, as it gives the publisher the right but not the obligation to publish the author’s next work.)
How to make it better: Options clauses can be softened in a number of ways. For example, authors can limit the definition of the “next work” for which the publisher’s option applies to something closely related to the original work (such as the next book in a series), and authors can even include a right to refuse the publisher’s offer. For more information on options clauses, see pages 131-134 of Understanding and Negotiating Book Publication Contracts.
Future Works: Non-Competes
Sample Term: “The Author agrees that during the term of this Agreement the Author will not, without the Publisher’s prior written consent, participate in the preparation or publication of, or otherwise be interested in or connected with matter that may, in the Publisher’s judgment, conflict or compete with the sale of the Work.”
Why it could be problematic: “Non-compete” clauses can be problematic because they can prevent the author from publishing any books that are of a similar character, ignoring that some authors may write exclusively on a niche topic, for example, because it’s their area of study as a scholar. This term is especially concerning because it explicitly leaves the decision of whether another book by an author will compete with the contracted book at the complete discretion of the publisher.
How to make it better: Ideally, an author will avoid agreeing to a non-compete clause in their contract at all. But publishers may feel strongly about protecting their investment in publishing the author’s book, and don’t want sales to be undermined by competing books. This term could be made better by instead using the phrase, “may reasonably be expected to interfere with the sale of the work” instead of being at the publisher’s sole discretion. And as the term of the agreement can be for a very long time, another improvement is to put a time limit for how long the author must refrain from publishing competing works, such as for one year after the contracted book’s publication. For more information on non-compete clauses, see pages 137-141 of Understanding and Negotiating Book Publication Contracts.
Look and Feel
Sample Term: “The [Publisher] shall have entire control of such production and publication in all forms and media. The paper, printing, binding, title, design, jacket and/or cover […] shall be in the [Publisher’s] sole discretion.”
Why it could be problematic: Typically, authors hand over the manuscript to the publisher and the publisher takes care of the “business” end of actually producing, distributing, and helping with the marketing of the book. However, some authors may want to have at least some input over the “look and feel” of their book. The term above gives total control to the publisher, regardless of how the author may feel about the publisher’s decisions.
How to make it better: If an author is concerned about having no say whatsoever in the look and feel of her book, she can negotiate for the publisher to agree to at least consult with her to get her opinions, or even get a right of approval about things like the design, jacket, and cover of her book. For example, if the publisher presents a book cover that the author loathes, the author can express that opinion and maybe veto the cover. That said, it is important for authors to remember that a publishers’ business is to sell books, and that publishers rely on their extensive experience in how to best accomplish that goal. To learn more about negotiation options for the look and feel of a book, review pages 153-57 of Understanding and Negotiating Book Publication Contracts.
Assignment of Agreement
Sample Term: “The Publisher shall have the right, without approval of the Author, to assign this Agreement.”
Why it could be problematic: Assignment is when a party to the contract (here, the publisher) gives all of their rights and obligations in the contract to someone else. Typically, publication contracts restrict an author’s ability to assign a contract without the publisher’s permission. This is unsurprising—after all, authors are individual people with particular skills, styles, and ideas, and the publisher contracted to work with that specific author. The potential problem with the term above is that the publisher can assign the contract without the author’s approval, meaning that the author has no influence whatsoever on who a future publisher may be. If the author chose the publisher because it’s prestigious, for example, but the publisher wants to assign the contract to a less prestigious publishing house, then the author will probably want to veto the transfer. But the contract says the publisher can assign the agreement no matter how the author feels.
How to make the term better: Ideally, the term will say that the publisher cannot assign the agreement without the consent of the author, though it is likely that the publisher will insist that consent cannot be unreasonably withheld. But this still gives the author the opportunity to consider the deal and the ability to reject the assignment for valid reasons, and balances control because the author must have a reasonable justification for vetoing an assignment. To learn more, check out pages 244-49 of Understanding and Negotiating Book Publication Contracts.
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The examples of covered in this series are just that—examples. Every contract looks a little different, depending on the kind of publisher and the kind of book. While this two-part series on book publication contracts has covered some of the most common terms used in contracts, there are many more that may appear, such as outlining royalty rates or marketing terms. For a deeper dive into contract terms and options for negotiation, be sure to check out Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts.
Authors Alliance is grateful to Diana Buck, Copyright Intern, for researching and drafting this post.
Authors Alliance is pleased to welcome Alison Mudditt and MacKenzie Smith to our Board of Directors. Alison and MacKenzie join Carla Hesse, Thomas Leonard, Jeffrey MacKie-Mason, Pamela Samuelson, and Molly Van Houweling in guiding the strategic decisions and activities of Authors Alliance.
Alison Mudditt is the CEO of the Public Library of Science (PLOS), where her primary role is to ensure PLOS’s continuous innovation, bold leadership, and mission-driven differentiation in the field of scientific communication. Prior to PLOS, Alison served as Director of the University of California Press where she ushered in new strategies to lead the company into the digital age, including the innovative journal and monograph Open Access programs Collabra and Luminos. Alison’s 30 years in the publishing industry also include leadership positions at SAGE Publications, Blackwell Publishers, and Taylor & Francis.
“The Authors Alliance has been doing critical work at both a policy and a pragmatic level to help authors share their works widely to benefit us all,” says Mudditt. “I’m delighted to be joining the Board and supporting their mission at a time when the importance of open and equitable access to knowledge and creativity couldn’t be more important.”
MacKenzie Smith is the University Librarian and Vice Provost of Digital Scholarship at UC Davis. As one of the nation’s leading experts in digital libraries, MacKenzie has defined and implemented a strategic framework and organizational design that integrates digital resources and information technology with traditional library services to better serve the UC Davis academic community. Prior to her role at UC Davis, MacKenzie spent nearly three decades on the East Coast working at the libraries of Harvard University and the Massachusetts Institute of Technology.
“Publishing is a very complex business that is changing rapidly in the digital age so it’s critical for academic authors to have a voice,” notes Smith. “I’m delighted to work with the Authors Alliance on these issues, from the perspective of academic research libraries that are also experiencing a rapid shift to digital. The Authors Alliance is an important ally in ensuring that publishing and scholarly communication continue to be effective for research and education.”
Alison and MacKenzie’s extensive knowledge and experience in scholarly communication, publishing, and authorship for the public good will be a tremendous asset to the Authors Alliance Board. We look forward to working with Alison and MacKenzie to advance our mission.
Book publication contracts deserve careful attention because their terms control the rights and obligations of authors and publishers for the life of the relationship between the parties, which can potentially last for decades. Our guide to Understanding and Negotiating Book Publication Contracts helps authors to understand common clauses in publication contracts, recognize how the terms might affect their goals for their books, and negotiate for author-friendly variations of those terms.
In this two-part blog series, we apply the lessons from our guide to real-life contract terms and illustrate how authors can consider the implications of contract terms and formulate author-friendly variations that advance their interests. The first post addresses grant of rights clauses, subsidiary rights, and rights reversion. The second post will cover options, non-competes, the look and feel of a work, and assignment of the agreement.
Grant of Rights
Sample Term: “The Author hereby assigns to the Publisher the copyright and all the exclusive rights comprised in the copyright in the Work and all revisions thereof […] during the full term of copyright […] with exclusive authority to dispose of said rights in all countries and in all languages […].”
Why it could be problematic: When an author writes something original and fixes it in a tangible medium, she typically automatically has copyright ownership in the work. Authors should think long and hard about transferring copyright ownership for the life of copyright as they may come to regret this if, for example, their work falls out of print or the rights are not being actively used. The sample “grant of rights” term above hands total ownership and control of the copyright to the publisher, to be exploited by the publisher at its sole discretion for the life of copyright (which currently lasts for the life of the author plus 70 years). Essentially, unless the author regains her rights (more on rights reversion below), the author will not have a say in whether and how the work is made available and used.
How to make it better: Many authors prefer not to turn over ownership of the copyright to the publisher at all. Instead, the author may try to negotiate for a limited term grant, or to give the publisher a nonexclusive license. A nonexclusive license means that the author grants the publisher the ability to do certain activities (such as make copies of the book and distribute them), but the author will still have the ability to allow other publishers to do the same through similar nonexclusive licenses, or even to do those activities on her own. Even if a publisher does not agree to a limited term grant or a nonexclusive license, authors have many options to negotiate to make the grant of rights more nuanced, such as by limiting the geographic scope, including “use it or lose it” clauses, and requesting revert-back clauses. The grant of rights clause can be modified in myriad ways; to learn more, take a look at pages 44-73 of Understanding and Negotiating Book Publication Contracts.
Subsidiary Rights
Sample Term: “The Author grants to the Publisher full and exclusive right to act as his or her agent in disposing of the following rights and licenses: reprint, in full or in part; book club; serialization; dramatic, operatic, and musical adaptation; radio and television broadcasting; mechanical or electronic reproduction; microfilming and similar techniques; filmstrip production; motion picture and allied rights; and adaptations for commercial use.”
Why it could be problematic: Subsidiary rights are rights that arise from your copyright being used in specific contexts, such as for a movie adaptation or in audiobook form. The term above is especially problematic when you put it in context: This particular clause was found in a contract for a textbook. Is a textbook publisher realistically going to make or license an opera based on an author’s textbook? Authors should be skeptical of contracts that ask for subsidiary rights that the publisher really doesn’t need and is unlikely to exploit.
How to make it better: There’s no one clear way to make a subsidiary rights clause better. Instead, an author should consider and discuss with the publisher what subsidiary rights they each hope to realistically exploit. For example, if a publisher has no ties to the movie industry, but the author or his agent does, then the author could advocate to retain the rights to audiovisual works because the author can actually pursue the goal of getting a movie made. Authors can also limit the duration of these rights, ask for a license-back, or insert “use it lose it” provisions. To learn more about subsidiary rights, review pages 76-94 of Understanding and Negotiating Book Publication Contracts.
Rights Reversion
Sample Term 1: “If the Work (and all conversions, adaptations, ancillaries, derivations and portions thereof) has been declared out of print by the Publisher in the United States, the Publisher may, but shall not be obligated to, offer to reversion rights to the Work to the Author.”
Sample Term 2: “In case Publisher fails to keep the work in print (and for all purposes of this paragraph a Work shall be considered to be in print if it is on sale by Publisher in any edition in any venue, storefront or online, paper or digital […] then this Agreement shall terminate with respect to the Work and all of the rights granted to Publisher with respect to the Work shall revert to Author.”
Why it could be problematic: Reversion rights are important because they give an author the ability to regain control of her book from the publisher if certain conditions are met, such as sales or revenue dropping below a certain threshold or if the book falls out of print. One reason Term 1 is problematic because it leaves the decision of whether to return rights to the author in the sole discretion of the publisher: Even if the book is out of print, the author cannot trigger rights reversion unless the publisher agrees. Term 2 is problematic because the availability of digital versions counts as keeping a book “in print,” it’s possible that the book will never be declared “out of print” if the publisher makes an electronic copy available, even if it hasn’t been selling any copies.
How to make it better: Reversion rights should not be left entirely to the publisher’s discretion; instead, it is better for clauses to include a clear trigger for an author’s right to revert, such as a definition of “out of print” that is tied to concrete terms, like a minimum number of sales or revenue in a specified period. Additionally, it is preferable to eliminate the mere availability of electronic copies as sufficient for a book to be “in print;” again, it is better to link the definition of “in print” to a sales or revenue threshold, for example, rather than the mere availability in any form. To learn more about rights reversion clauses, read pages 231-43 of Understanding and Negotiating Book Publication Contracts.
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The examples of covered in this series are just that—examples. Every contract looks a little different, depending on the kind of publisher and the kind of book. Contracts will inevitably have many more clauses that aren’t covered in this series, such as outlining royalty rates or marketing terms. For a deeper dive into contract terms and options for negotiation, be sure to check out Authors Alliance’s guide to Understanding and Negotiating Book Publication Contracts.
Authors Alliance is grateful to Diana Buck, Copyright Intern, for researching and drafting this post.
Authors Alliance thanks Diana Buck, Copyright Intern, for this post.
When universities across the United States moved to online learning in the spring of 2020 due to the COVID-19 pandemic, many students and teachers were left in a difficult position. Some students did not have access to textbooks and other library materials that they relied upon for classes, and teachers had to find new ways to interact online and maintain engagement in class. American University Washington College of Law’s Program on Information Justice and Intellectual Property (“PIJIP”), recognizing teachers’ need to find adaptable, resilient, and even digital education materials for fall 2020 classes, created a webinar series to inform educators about the possibility of using or creating open educational resources (“OER”). The webinar series is broken into two parts: part one addresses finding and evaluating OER for use in classes, while part two covers how to create and publish OER.
In part one, a range of guest speakers outline the larger context of the importance of OER beyond the pandemic as an alternative to traditional textbooks and publishers’ online inclusive access deals. OER are valuable resources because they provide flexible alternative to educational materials made available under default copyright terms, which can prevent people from accessing, sharing, or adapting materials. OER’s flexibility comes from the fact that almost anything can be OER, from textbooks to slideshows to test banks, and creators can choose how users are allowed to interact with the materials by applying Creative Commons licenses. OER allows teachers to meet students’ needs in a more personalized way without requiring them to spend money on educational materials that won’t be utilized. Additionally, OER creates greater access to education by putting all students on equal footing to start class, as opposed to commercial resources which some students may not be able to afford or have a difficult time procuring.
After explaining the strengths of OER, part one of the series addresses potential resources for educators to build an OER-based curriculum, such as SPARC, Open Textbook Network, and Rebus Community. When choosing OER, educators should think about whether the OER complies with campus policies, how much students will have to pay, formatting choices, and limits on printing or copy-and-paste features. The speakers encourage teachers to utilize their campus librarians rather than immediately turning to the wider internet. The idea of OER is not to reinvent the wheel by creating all new materials or feeling forced to find a multitude of resources that somehow need to be pulled together in a comprehensive way, but to find a few good base sources and then edit as needed to fit the teacher’s learning goals for the class.
Part two of the webinar series addresses how educators can begin to create and share their own OER. Taking a practical approach, the speakers discuss how a creator should think about a timeline, potentially working with co-authors, and finding other people to help in the process such as copy editors, librarians, or even students. One example given is a Spanish language professor who would write a chapter of her OER textbook, present it to her students as part of the class curriculum, and then gather feedback. She then incorporated that feedback into her revised textbook in the summer, when classes were over and she had more time to create the finished product. The webinar also reminds creators to remember copyright laws and a potential fair use exception in materials they draw upon. Even if the source materials aren’t OER, teachers may be able to use them anyway.
Authors Alliance has submitted comments to the U.S. Copyright Office in support of its proposal to develop sample templates for notices of termination and/or an online notice builder.
In the United States, termination of transfer laws enable authors to regain rights in their works that might have been signed away—even if their contracts contain language to the contrary. While termination rights are immensely important for authors and the public, termination rules are complicated and formalistic, which contributes to the underutilization of this important tool. The statutory provisions governing timing of the notice and termination windows, together with the regulations governing the information required in notices of termination, are complex. Adhering to these requirements can be especially burdensome to creators who are not represented by agents or attorneys.
Authors Alliance commends the Copyright Office for giving consideration to developing resources to help creators properly effectuate their termination rights. Our comment invites the Office to look to our tools as a model for these efforts, and to count on Authors Alliance to support these efforts based on our experience developing termination of transfer resources for creators. With proper tools and guidance, we believe more authors will be able to terminate rights and make their works newly available.
The Internet Archive has responded to a copyright lawsuit filed by a group of commercial publishers which takes aim at the Controlled Digital Lending (“CDL”) model and the Internet Archive’s (now closed) National Emergency Library. The Internet Archive’s answer to the publishers’ complaint highlights the fair use arguments underpinning the digitize-and-lend model, which has been in operation since 2011 with the support and participation of hundreds of other libraries.
Under the CDL digitize-and-lend model, libraries make digital copies of scanned books from their collections available to patrons (the hard copy is not available for lending while the digital copy is checked out, and vice versa). A library can only circulate the same number of copies that it owned before digitization. Like physical books, the scanned copies are loaned to one person at a time and are subject to limited check-out periods. The Internet Archive launched National Emergency Library in March in response to the COVID-19 outbreak which left the physical collections in libraries inaccessible to patrons; books available through the National Emergency Library were not subject to the “owned-to-loaned” ratio. The National Emergency Library closed on June 16.
The Internet Archive’s answer to the publishers’ complaint explains that the digitize-and-lend model serves the public interest in preservation, access, and research—all classic fair use purposes. Every book in the collection has already been bought and paid for by the libraries that own them, and most of the volumes are out of print.
In a recent statement, Internet Archive Founder & Digital Librarian Brewster Kahle emphasized that “libraries have the right to buy books, preserve them, and lend them even in the digital world” and that learners need digital access to books that libraries own physically. “Controlled Digital Lending is a respectful and balanced way to bring our print collections to digital learners. A physical book, once digital, is available to only one reader at a time. Going on for nine years and now practiced by hundreds of libraries, Controlled Digital Lending is a longstanding, widespread library practice.”
Copyright expert and Authors Alliance Board President Pamela Samuelson agrees, stating “it’s really tragic that at this time of pandemic that the publishers would try to basically cut off access to a digital public library like the Internet Archive is running.”
Authors Alliance has long been a supporter of the CDL model, which helps authors share their creations with readers, promotes the ongoing progress of knowledge, and advances the public good—objectives that are consistent with the mission of Authors Alliance. Several of our members have spoken out in favor of the model. CDL is particularly beneficial for authors whose works are out of print or otherwise commercially unavailable: In the absence of digitizing and lending these books, many would simply be inaccessible to readers. The CDL model is a boon to the authors of these and other books, allowing them to find new audiences online.
Today, Authors Alliance joined with allies to petition to renew the existing exemption to Section 1201 of the Digital Millennium Copyright Act (DMCA) that allows authors to bypass encryption to make fair use of film clips in nonfiction multimedia e-books.
While copyright law generally provides for exceptions like fair use that allow authors to use copyrighted works without permission in certain circumstances, some courts have held that these exceptions do not apply to the anti-circumvention provisions of Section 1201. Evading digital rights management (DRM), even when done for otherwise lawful purposes, may be prohibited by law. However, every three years, the Librarian of Congress is empowered to approve discrete, temporary exemptions from the law in order to carve out space for non-infringing uses caught up in the DMCA’s broad sweep.
In 2015 as a part of the U.S. Copyright Office’s sixth triennial rulemaking session, Authors Alliance joined with author Bobette Buster, the American Association of University Professors, and counsel from legal clinics at the UC Irvine Intellectual Property, Arts, and Technology Clinic and the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado, Boulder to successfully petition for an exemption that allows authors to circumvent digital locks on Blu-rays, DVDs, and digitally transmitted videos to make fair uses in multimedia e-books offering film analysis. In the seventh triennial rulemaking, the Librarian of Congress expanded the exemption to all nonfiction multimedia ebooks.
Now, as the eighth triennial rulemaking cycle begins, our team has submitted a petition to renew this exemption. Authors Alliance believes that multimedia e-books are an important form of authorship and wants to see authors empowered to fully realize their promise. The freedom to author e-books that incorporate multimedia content, consistent with the core tenets of the First Amendment and academic freedom, remains significant and important. We will continue to track the progress of the rulemaking and provide updates as they become available.
We are grateful to the student attorneys and their supervisors at the Intellectual Property, Arts, and Technology Clinic at UC Irvine School of Law and the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado School of Law for their work supporting this exemption.
Authors Alliance is grateful to Jacqui Lipton for this guest post on domain names for authors. Her new book, Law and Authors: A Legal Handbook for Writers, is an approachable, reader-friendly resource to help authors navigate the legal landscape of the contemporary publishing industry. Through case studies and hypothetical examples, Law and Authors addresses issues of copyright law, including explanations of fair use and the public domain; trademark and branding concerns for those embarking on a publishing career; laws that impact the ways that authors might use social media and marketing promotions; and privacy and defamation questions that writers may face. Get your copy today from the University of California Press (use discount code 17M6662 for 30% off).
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Not all authors have, or even want, their own website. Some are happy to rely on social media like Facebook, Twitter, Instagram etc., to connect with readers. Even those who do have a website may choose to use a service like WordPress which can provide a sub-page for a blog or website without the need to register a dedicated domain name. This column is for those who are considering venturing into the often murky waters of domain name registration.
Many people would tell you that Internet domain names are no big deal; they’re just so last century. In a sense that’s true. In the mid to late 1990s, Internet domain names were the most effective way for people to find you online because search engines weren’t nearly as sophisticated as they are today. Today, if people want to find you they just Google you.
For example, if you Googled “Sarah Perry”, you’d get a list of results that probably prioritizes a bunch of different people including two authors with that name: one, an American memoirist and the other, a British novelist. The search engine results would likely prioritize the British novelist because search engine algorithms, like Google’s, use a number of factors to identify the most relevant search results, including how often a particular page is accessed. Because the British author is more well-known, her page has likely been accessed more often than the American author with the same name.
However, those algorithms also use domain names to prioritize search results, which is why domain names are still important. Try searching some of your favorite authors and artists online. Those who hold a relevant domain name are likely to be in the top ten results.
Pinning Down a Domain Name
Securing a domain name that corresponds with your personal name may be more difficult than you expect: for example, in the Sarah Perry context, the British author uses “sarahperry.net” while the American memoirist uses “sarahperryauthor.net”. Neither uses the arguably more intuitive “sarahperry.com”. While a lot people say that the “.com” version of your name is important, that’s a lot less true today than it was in the past and it’s arguably less true for people’s names than for corporate trademarks.
Domain names are generally registered on a first come, first served basis, so the first person to register “sarahperry.com” will generally take the name, subject to any later legal challenges or complaints. Most of those challenges are based on trademark rights and it’s important to note that authors typically can’t claim trademarks in their names, at least under American trademark law.
If you are concerned about someone else using your name as a domain name, you can attempt an online arbitration under the Uniform Domain Name Dispute Resolution Policy (URDP) established by the Internet Corporation for Assigned Names and Numbers (ICANN) in 1999. The UDRP is fast, online and much less expensive than court proceedings. More importantly, UDRP arbitrators have accepted trademarks in personal names much more often than American courts typically do, although they’ve tended to be celebrity names like Julia Roberts and Al Pacino.
To win a URDP arbitration, you need to establish that (a) the domain name is identical or confusingly similar to your trademark, so it only works if your name is accepted as a trademark; (b) the registrant has no rights or legitimate interests in the domain name; and, (c) the domain name has been registered and is being used in bad faith. While this sounds simple, it’s not easy for an author to establish all these things. In particular, it’s often difficult to prove that the domain name has been registered in bad faith, even if it was registered by a domain name speculator (often called cybersquatter) in the hopes of making money selling it to someone with an interest in it.
Many speculators register bulk domain names with no idea as to whether the names match someone else’s brand or trademark in the hopes that some of the names will become valuable in the future. They make their money by registering large numbers of names at low cost and then charging high prices when someone later wants the name. In these situations, the speculators can argue that they didn’t register the name in bad faith because they didn’t know any other person had an interest in it at the time of registration. This may well be what happened with “sarahperry.com” which is currently offered for sale through GoDaddy, probably for a price significantly higher than it would cost to register an alternative domain name. This may explain why neither of the “Sarah Perry”s uses the “.com” version of their name.
UDRP arbitrations are simple and inexpensive, but they are often of limited use to authors in the absence of a trademark.
What about Negotiation?
Most lawyers will suggest that the first (and often easiest) strategy to try and wrangle control of the domain name you want is to contact the person who registered it and find out if they will sell it for a reasonable price. They may ask more than the cost of registering an alternative name, but it may still be cheaper than attempting to use the UDRP and it may be worth it depending on how important it is for you to secure a particular name. In the Sarah Perry situation, presumably neither author thought it was worth paying more than they needed to as they were each able to find viable options.
Bear in mind that some people will not be prepared to sell you a name they have registered because they are using it themselves. They might be prepared to put a link to your website on their page, depending on the circumstances, though, so it may be worth asking in any event.
Search Engine Optimization (SEO)
If you’ve heard the term “SEO” and don’t understand it, it’s basically just a way of referencing techniques you can use to ensure that your website is prioritized in search results regardless of your domain name. The precise ways to do this change over time as search engine algorithms change, and people find better ways of playing the system.
SEO isn’t a legal issue. It’s a matter of being tech-savvy. A number of companies specialize in SEO and you can pay them to teach you how to prioritize your website in search engine results. Many of the popular web hosting packages offer SEO as an add-on service. Google also offers statistics and strategies for SEO including a free online SEO Starter Guide and a free service, Google Analytics, which breaks down the figures related to who is visiting your website and how often.
You can end up spending a lot or a little on your web presence, and attempts to make it easily searchable. There’s no one right way to be online, and it’s best to find what you’re comfortable with than to try and do everything, but if you do venture into domain name territory, hopefully this blog post has given you some guidance. If you’re not the website type, social media can be just as effective and potentially a lot more interactive. But that’s a whole other blog post …
Jacqui Lipton is the founder of Raven Quill Literary Agency as well as a consultant on business and legal issues for creative artists. She also teaches law and legal writing at the University of Pittsburgh, as well as several online venues. She writes regular columns on legal and business issues for authors for SCBWI, Luna Station Quarterly, Catapult, and Savvy Authors. Her book Law and Authors: A Legal Handbook for Writers is available from University of California Press.
