Category Archives: Blog

Authors Alliance Submits Reply Comment in 2018 DMCA Rulemaking

Posted March 15, 2018
photo of CD with padlock

photo by 422737 |CC0

In December 2017, Authors Alliance submitted comments to the U.S. Copyright Office in support of a modified exemption to Section 1201 of the Digital Millennium Copyright Act (DMCA) for multimedia e-books. The proposed modification would broaden the application of the current exemption (which allows for lawful circumvention of digital rights management technologies in non-fiction works offering film analysis) to embrace fictional e-books and e-books on subjects other than film analysis. This would allow a more diverse group of creators, such as fanfiction authors, to access the clips they need from DVD and Blu-ray discs to make fair use of video clips in their e-books.

Responses to that initial comment were filed last month. Now, joined by the American Association of University Professors, Organization for Transformative Works, the Interactive Fiction Technology Foundation, and Professor Bobette Buster, we have in turn submitted reply comments as part of the U.S. Copyright Office’s seventh triennial rulemaking process for 2018. The full text of the comment is included below.

Our comment explains that creators are interested in exercising their fair use rights by engaging in criticism and commentary in their creations, and it provides evidence that creators of content have been and will continue to be harmed absent the proposed modification to the current exemption.

Our advocacy in this area is ongoing. In 2015, as part of the sixth triennial rulemaking, Authors Alliance traveled to Washington, DC to testify in hearings before the U.S. Copyright Office. We will do so again in April of this year and will keep our readers updated on that testimony, as well as the results of the seventh triennial rulemaking.

2018.03.14 Reply Comment MM EBooks AuAll AAUP OTW IFTF Buster

 

Imagination Foregone: A Study of the Reuse Practices of Australian Creators

Posted March 13, 2018

headshot of Kylie PappalardoWe are grateful to Dr. Kylie Pappalardo of the Queensland University of Technology in Brisbane, Australia, for contributing the following guest post, which highlights the results of her recent work with Patricia Aufderheide, Jessica Stevens, and Nicolas Suzor on copyright and creative incentives in Australia.

Australian creators struggle to understand copyright law and how to manage it for their own projects. A new study has found that copyright law can act as a deterrent to new creation for many Australians, rather than an incentive for it.

Interviews with 29 Australian creators, including documentary filmmakers, writers, musicians and visual artists, sought to understand how creators reuse existing content to create new works. The study considered issues such as whether permission had been sought to reuse copyrighted content; the amount of time and cost involved in obtaining such permissions; and a creator’s recourse if permission was either denied or too expensive to obtain.

Confusion about copyright exceptions

The study highlights creators’ confusion about the scope and application of Australian copyright law. Creators were especially confused about legal exceptions to copyright infringement. Once participant remarked: “Everybody is out there flying a bit blind about this.”

Australian creators seeking to reuse existing content are in a different legal position to U.S. creators, because Australia does not have a fair use exception. Instead, Australia has limited “fair dealing” exceptions, which require the use to fit within a specific purpose—criticism and review; research or study; parody or satire; or reporting the news. Any uses that fall outside one of the designated purposes, such as lengthy quotes or remixes that are not parodies or critiques, require permission from the copyright owner.

In recent years, the Australian Law Reform Commission and the Australian Productivity Commission have recommended that Australia adopt a U.S.-style fair use exception. These recommendations attracted significant criticism from much of Australia’s creative sector, who thought that such an exception would be too broad and too uncertain. However, the new study suggests that these criticisms may be largely unfounded.

Australian creators in the study frequently confused fair use and fair dealing, and used the terms interchangeably. Rather than following the strict letter of the law, the creators interviewed used their own strong sense of morality and fairness to guide what reuse they considered to be acceptable. Creators most commonly focused on the creative elements that they added to a work, rather than what they had taken from an existing work. This is a norm that aligns more closely with the factors that courts use in assessing fair use, including whether a use has been transformative, than with the Australian law approaches to fair dealing.

Problems with seeking permission

For the majority interviewed, seeking permission to reuse copyrighted content was a source of great frustration and confusion. The process was variously described as “incredibly stressful,” “terrifying,” and “a total legal nightmare.”

Problems mostly centered on time delays and financial expenses. Creators found that the paperwork required to request permission was often long, complex and not standard across publishers and other rights-holder bodies. Many waited months for a response to a request; some never received one at all. Many reported feeling ignored and disrespected.

License fees were also an issue for the creators interviewed. License fees can be expensive, even for very small samples. Many creators thought that copyright fees demanded for reusing small samples were unfair and stifling.

Responses to copyright roadblocks

Common reactions to the restraints imposed by copyright law included avoiding and abandoning projects. A very small number of creators proceeded with their projects anyway, hoping to “fly under the radar,” but these were the minority. Some creators change projects to try to circumvent copyright restrictions. For example, filmmakers might degrade the sound on their films for scenes where background music might be playing, such as those filmed in a pub or restaurant.

Ideas were filtered out early at the brainstorming stage because they were “too risky” or licensing would be “too expensive.” Some people avoided entire areas of creativity, such as appropriation art, music sampling or documentaries about music or musicians, because it was all just “too hard.”

Lessons from the study

The Australian study suggests that more flexibility in the law might actually help to spur the creation of new Australian work. Australian creators could benefit from broader copyright exceptions that allow them to reuse small amounts of existing works in new creations, and from clarity and consistency around licensing procedures. The study indicates that there is a misalignment between creative norms and copyright law in many cases, and that law reform may be needed to meet the needs of Australia’s creative community.

More detail and specific examples of “imagination foregone” are in the full report: Kylie Pappalardo, Patricia Aufderheide, Jessica Stevens and Nicolas Suzor, Imagination Foregone: A qualitative study of the reuse practices of Australian creators (Nov 17). Funded with support from the Australian Digital Alliance.

Dr. Kylie Pappalardo researches in intellectual property and innovation law, focusing primarily on the intersection between copyright and creativity and the rights of copyright users. She is a Lecturer in the Law School at the Queensland University of Technology (QUT) in Brisbane, Australia, where she leads the research program on copyright law and creative communities.

 

IPKat Interviews Brianna Schofield

Posted March 6, 2018

The intellectual property website IPKat recently featured an in-depth interview with Authors Alliance Executive Director Brianna Schofield. The Q&A covered topics ranging from our mission and membership to issues such as fair use and moral rights.  Read on for the full story!

Authors Alliance On the Road: Tampa, Florida

Posted
photo of Tampa skyline

photo by smccreedy1 | CC0

On March 8-10, Authors Alliance will travel to Tampa for the annual Association of Writers and Writing Programs (AWP) Conference and Bookfair. Following the success of last year’s presentation on copyright basics, we were again selected to present an educational panel at the conference—the largest professional gathering of writers, writing programs, and publishers in the United States.

This year’s presentation, “Untangling Copyright: A Crash Course for Creators,” features LeEtta Schmidt of the University of South Florida and David Hansen of Duke University. This panel discussion will provide a primer on copyright, fair use, and publishing terms. Authors will leave the panel armed with practical information that will empower them to make informed copyright decisions so they can focus on their writing. The discussion will be moderated by Authors Alliance executive director Brianna Schofield.

In addition to the panel, Authors Alliance will also staff an information booth at the AWP conference bookfair.  We will be available for the duration of the conference to distribute educational materials, speak directly with authors, and answer questions about issues such as copyright, contracts, rights reversion, open access, and termination of transfers.

We look forward to the opportunity to connect with authors, creators, and our members and spread the word about our tools and resources. If you are planning to attend AWP this year, be sure to stop by our table and say hello!

Revisiting Georgia State: Fair Use and Academic Incentives

Posted March 1, 2018

What effect does fair use have on incentives to create? For some academic authors, there is growing evidence that fair use will not diminish, and may even enhance, their incentives to create and distribute scholarly works because it promotes their goals of advancing the progress of knowledge, builds reputational capital, and increases the impact of their works.

Last year, Authors Alliance filed an amicus brief with the Eleventh Circuit in support of Georgia State University’s fair use defense in Cambridge University Press v. Becker. One issue we discussed in our brief is how our members’ experiences accord with the district court’s conclusion that academic authorial incentives to create scholarly book chapters would not be impaired by a fair use ruling. We explained that the primary motivation of academic authors to write scholarly book chapters is generally to share the knowledge and insights they have gained, and the type of reward that academic authors have generally sought and hoped to attain through writing scholarly book chapters is enhancement of their reputations.

Our brief highlighted quotes from several authors of book chapters at issue in the case who reflected on the benefit of fair use to their goals of reaching readers and contributing to academic discourse. For example, Norma Mertz, Professor of Higher Education Administration at University of Tennessee, Knoxville, wrote “I have no objection to the fair use of chapters from my books. Indeed, I find the suit to prevent use of such chapters a serious hindrance to the advancement of knowledge.” Other authors pointed to the benefits of publishing academic works. Douglas Harper, Professor Emeritus of Sociology at Duquesne University, wrote “There is reputational benefit… to doing this work. … The point of this work is to share it!”

A subsequent survey of authors conducted by Brandon Butler and David Hansen reinforced these observations about academic authors’ incentives to create. Butler and Hansen wanted to test the hypothesis that most academics expect their work to be used freely for teaching, partly because academic authors make such uses themselves. They surveyed the authors affected by Georgia State litigation—primarily academic authors whose works had been excerpted by GSU professors in support of their teaching. Their results, although based on a small sample size, suggest that academic authors expect that their works will be used for educational purposes; indeed, many of them make such uses of others’ works as well, and are not highly incentivized to write by copyright restrictions or the promise of royalties.

As Hansen and Butler write in their survey analysis, “Authors faced with a publishing contract that includes a copyright transfer or license should consider whether they trust the publisher to enforce those rights in ways consistent with academic values and expectations.” This and other issues of interest to those considering publication options will be addressed in our forthcoming guide to publication contracts. The guide will be the fourth volume in our series of educational handbooks—stay tuned for a release later this year.

In the meantime:

Newly Updated: Fair Use FAQ

Posted February 28, 2018

Fair use has always been a key issue for Authors Alliance. When we launched in 2014, we created a Fair Use FAQ to help authors navigate this complex topic. Now, to celebrate Fair Use Week and our recently published guide to Fair Use for Nonfiction Authors, we’ve expanded and updated the FAQ to provide a comprehensive summary of key points. Read on to learn more!

  1. What is fair use anyway?
  2. What does it mean to say a use is “transformative”?
  3. What does it mean to say a use is “non-transformative”?
  4. Can I still claim fair use if I am using copyrighted material that is highly creative?
  5. Can I still claim fair use if I am using copyrighted material for commercial purposes?
  6. Can I still claim fair use if I ask the copyright owner for permission to use the material and permission is refused?
  7. Can I still claim fair use if I want to use copyrighted material that is unpublished?
  8. Are charts, graphs, and tables protected by copyright and, if so, can I rely on fair use to incorporate them into my nonfiction work?
  9. How does a work’s copyright status affect fair use?
  10. How does a work’s orphan work status affect fair use?
  11. Can contractual terms governing access to a work restrict the availability of fair use?
  12. Does the fair use analysis change when the copyrighted material I want to use is owned by a litigious estate?
  13. What can I do if my publisher asks me to obtain permission instead of allowing me to rely on fair use?
  14. Does fair use protect against claims based on legal rights other than copyright, such as privacy rights, trademark, defamation, right of publicity, and more?
  15. Is fair use really as unpredictable as some people say?
  16. What if there is no on-point best practice guide for me?
  17. Where can I learn more?

What is fair use anyway?

In U.S. copyright law, fair use is a use of a copyrighted work that does not infringe the exclusive rights that the law confers on authors and other rights holders.

Section 107 of the U.S. copyright act identifies four factors that courts should consider in determining whether a use is fair or infringing:

  1. The purpose and character of the challenged use;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the challenged use; and
  4. The harm the challenged use is likely to cause to the market or potential market for the work.

No factor is dispositive; all must be weighed together.

Uses for criticism, commentary, news reporting, research, scholarship, and teaching are identified in the statute as examples of favored uses. Noncommercial uses are generally more likely than commercial uses to be fair. Transformative uses are also more likely than non-transformative uses to be fair.

The scope of fair use tends to be somewhat broader for fact-intensive works, especially when done for one of the favored purposes.

A good shorthand way of considering whether a use you want to make of another’s work will be fair is whether the amount you borrowed from the other’s work is reasonable in light of your purpose and unlikely to supplant demand for purchase of the original.

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What does it mean to say a use is “transformative”?

A use will be considered “transformative” if it:

  1. Actually transforms expression in the work, as a parody of a song might do;
  2. Is included in a new work of authorship, as quoting from the writings of a person in a biography;
  3. Is used for a different purpose than the original, causing it to have a different meaning, as when a newspaper publishes a photograph that has become controversial.

Transformative uses will not always be fair. A new arrangement of a song, for instance, may well infringe the derivative work right. But especially when done for purposes of criticism or commentary, the transformativeness of a use will tend to tip in favor of fair use.

Courts have recently been receptive to the idea that copyright owners do not have the right to control all transformative uses of their works. Transformative uses are less likely than non-transformative uses to pose a risk of supplanting market demand for a work.

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What does it mean to say a use is “non-transformative”?

A use will be considered “non-transformative” if it is, for example, an exact copy of a work or part of a work. Making a time-shift copy of a television program is an example of a non-transformative use that courts have deemed fair. Posting a chapter of a book on an electronic course reserve system is another example of a non-transformative use. (The Cambridge University Press v. Becker case, which is presently pending before an appellate court, is testing whether this kind of use is fair.) Scanning a photograph you like and posting it online is a third example of a non-transformative use.

Non-transformative uses may be and often are fair uses, but they are somewhat less likely to be fair uses insofar as they pose a stronger risk of harming the market for the work. If someone makes a copy of a movie or computer program, for instance, instead of buying a copy of his own, that non-transformative use is more likely to have a negative effect on the copyright owner’s market. Even though one person’s peer-to-peer file-sharing of music or a movie would seem to be relatively trivial, courts take into account that if they say this use is fair, then many others will do the same thing and the aggregation of these uses are likely to cause market harm.

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Can I still claim fair use if I am using copyrighted material that is highly creative?

Yes. While courts do consider whether the copyrighted material used is primarily factual or creative under the second factor, “the nature of the work,” this factor is rarely decisive on its own. Courts still must weigh all four factors, including the “purpose of the use.” Where the purpose of the use is transformative, such as when a nonfiction author comments on copyrighted material or uses copyrighted material to support a point, and the amount used is reasonable, the second factor rarely affects the final outcome of fair use cases.

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Can I still claim fair use if I am using copyrighted material for commercial purposes?

Yes. While “noncommercial” uses may be a plus in a fair use analysis, there are no categorical rules: Commercial uses can be fair use, and not all noncommercial uses will be fair use. In fact, some of the important court victories for fair use over the past two decades have been won by defendants whose activities were commercial, including musicians, publishers, and artists who sell their work (sometimes at substantial prices).

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Can I still claim fair use if I ask the copyright owner for permission to use the material and permission is refused?

Yes. You do not have to ask permission or alert the copyright holder when a use of materials is protected by fair use. But, if you choose, you may inquire about permissions and still claim fair use if your request is refused or ignored. In some cases, courts have found that asking permission and then being rejected has actually enhanced fair use claims. In fact, the Supreme Court has said that asking for permission may be a good faith effort to avoid litigation.

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Can I still claim fair use if I want to use copyrighted material that is unpublished?

Yes. Congress amended the Copyright Act in 1992 to explicitly allow for fair use when using unpublished works after several court decisions suggested that the use of unpublished materials would rarely be fair use. Under current copyright law, the fact that a work is unpublished “shall not itself bar a finding of fair use if such finding is made upon consideration of all the [fair use] factors.”

While a court may still consider a work’s unpublished status to weigh against fair use when evaluating the “nature of the work,” this factor is rarely decisive on its own and courts still must weigh all of the fair use factors, including the purpose of the use. The purpose of the use may weigh against fair use if the unpublished material is being used in a frivolous or exploitative manner. On the other hand, the purpose of the use may weigh in favor of fair use if the unpublished material transforms the original material (by, for example, using the original material as the object of criticism or commentary) and contributes to the public’s interest in advancing knowledge.

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Are charts, graphs, and tables protected by copyright and, if so, can I rely on fair use to incorporate them into my nonfiction work?

Charts, graphs, and tables may be protected by copyright, but the underlying facts are not copyrightable. Creative choices in the way that facts are presented in a chart, graph, or table may be sufficiently original to warrant copyright protection. That said, where applicable, you may still be able to rely on fair use to use a chart, graph, or table that includes expressive elements.

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How does a work’s copyright status affect fair use?

Copying of works that are not protected by copyright is not copyright infringement, regardless of fair use. But sometimes it can be difficult to determine whether a work is protected by copyright. For example, you may not be able to determine whether a work’s copyright has expired, or you may not be sure whether a scientific chart has the requisite level of creativity to warrant copyright protection. Even where you cannot determine a work’s copyright status, you may still want to understand whether the use of the material would be permitted by fair use should the material be protected by copyright. In fact, in some cases determining whether the use would be permitted by fair use may be easier than resolving the work’s copyright status.

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How does a work’s orphan work status affect fair use?

Orphan works are works for which it is difficult or impossible to identify or locate the work’s copyright owner, even after a diligent search. The use of an orphan work may be permitted by fair use, just like any other work. In fact, orphan works often have characteristics that make fair use more likely. For example, orphan works are by definition not active in the market, limiting any resulting economic harm to rightsholders. In some cases, determining whether the use of an orphan work would be permitted by fair use may be significantly easier than securing permission from a rights holder that, by definition, is difficult or even impossible to track down.

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Can contractual terms governing access to a work restrict the availability of fair use?

Yes. For example, some archives, museums, and commercial collections that control access to works place contractual restrictions on the use of those works, even when use of the work would otherwise be permitted by fair use (and, in some cases, even when the work itself is in the public domain!). This is beginning to change, and some archives and museums have already abandoned these practices. However, if you are a party to such a contract, your ability to use materials you’ve accessed may be limited by the terms of the contract. For example, a biographer who accesses her subject’s personal papers through an archive may find that, as a condition of accessing those materials, the subject’s estate forbids quoting from the materials without the express permission of the estate. Similarly, an art critic may find that he has agreed to terms governing the use of photographs he accessed through an online archive.

At least some courts have held that such contracts may be enforced, even if the restricted use would be fair use as a matter of copyright law. In these cases, nonfiction authors cannot rely on fair use since demands for permission in this context are based on contractual claims, not copyright. As such, nonfiction authors should pay careful attention to the conditions of access to source materials and may want to consider negotiating for better terms that do not restrict their research and writing goals.

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Does the fair use analysis change when the copyrighted material I want to use is owned by a litigious estate?

No. Some estates are notoriously aggressive in trying to prevent the use of materials to which they own the copyrights. However, just because a copyright owner is forceful in asserting copyright claims doesn’t make fair use any more or less likely. It may, however, change your assessment of the practical risk that a copyright owner might complain or sue. Authors in this situation may be especially interested in obtaining errors and omissions coverage prior to publicizing their work.

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What can I do if my publisher asks me to obtain permission instead of allowing me to rely on fair use?

Some publishers may require that authors get permission to use copyrighted materials in their works instead of allowing them to rely on fair use. If you find yourself in this situation, you may find it helpful to ask your publisher to reconsider its position and to explain why you think your intended use is protected by fair use. You may also want to share with them related codes of best practices, if relevant. If fair use is important to you or essential to your project, you may want to search for a publisher that recognizes fair use before signing a publishing contract.

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Does fair use protect against claims based on legal rights other than copyright, such as privacy rights, trademark, defamation, right of publicity, and more?

No. Fair use is a limitation on exclusive right under copyright and does not apply to other legal claims. When using third party materials, authors should consider legal issues beyond copyright, such as contractual restrictions, privacy rights, trademark law, right of publicity, and defamation; and community norms, like rules against academic plagiarism.

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Is fair use really as unpredictable as some people say?

It is sometimes said that fair use is unpredictable. Larry Lessig, for instance, spoke of fair use as “the right to hire a lawyer.” For some people, this perception of unpredictability has a chilling effect (that is, they are unwilling to take the risk that the use will be held unfair).

To provide guidance, the Center for Media and Social Impact at American University has published some “best practices” guidelines to help people become more comfortable with making fair uses, including one for documentary filmmakers and one for user-generated video content (remixes and mashups). The Center for Media and Social Impact has published a template to help users in particular communities to form their own best practices guidelines.

The “best practices” approach is catching on.  In fact, Authors Alliance published a guide to Fair Use for Nonfiction Authors, which features guidance based on a meta-analysis of existing best practices guides.

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What if there is no on-point best practice guide for me?

Even if no best practice guidelines exist for your community, it is worth knowing that there is more predictability in the fair use caselaw than some have suggested. As noted above, a use is likely to be fair if done for a purpose such as criticism, comment, news reporting, scholarship, teaching and research as long as what you take from another’s work is reasonable in light of your purpose. Here are some examples:

  • Quoting small amounts of text (8% or less) from each of 25 writings in a critical biography of L. Ron Hubbard was held a fair use in New Era Publications Int’l ApS v. Carol Publishing Group in 1990.
  • Reproducing seven posters in significantly reduced sizes that had once advertised Grateful Dead concerts in a 480 page book on the cultural history of the band was held to a fair use in Bill Graham Archives v. Dorling Kindersley in 2006.
  • Preparing a reference work about the characters, plot, and special features of fictional works was held to be fair use in Warner Bros. Entertainment v. RDR Books (although RDR had to change some places where there was very close paraphrasing of passages from Harry Potter novels) in 2008.
  • Scanning student papers into a database designed to detect plagiarism was held fair use in A.V. v. iParadigms in 2009.
  • Retelling the story of Gone With the Wind from the vantage point of a slave was held a fair use in Suntrust Bank v. Houghton Mifflin Co. (However, an unauthorized sequel to Catcher in the Rye, imagining Holden Caulfield as an old man, was held unfair in Salinger v. Colting. Sequels, in general, are likely to be considered infringing derivative works. One reason the use was fair in Suntrust was because of it was a critical commentary on the original and the Mitchell estate made clear it would never have licensed this kind of use of the famous novel.)

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Where can I learn more?

For further reading on fair use, we recommend:

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Amanda Levendowski on Fair Use for Fairer AI

Posted February 27, 2018
illustration on fair use by Gary Zamchick

Illustration courtesy of Gary Zamchick | Used with permission

The principles of copyright law sometimes have a way of appearing in unexpected places. Recently we featured an article by Christopher Sprigman that examines assumptions about copyright as a spur to creativity by considering examples as diverse as Italian opera and Bollywood movies.

Today, as part of Fair Use Week, we are highlighting new research by NYU Clinical Teaching Fellow Amanda Levendowski that explores the ways in which copyright law can negatively influence the quality of artificial intelligence (AI), and how fair use might be part of the solution. She describes how there has been an increase in examples of AI systems reflecting or exacerbating societal bias, from racist facial recognition to sexist natural language processing.

As the computer science adage “garbage in, garbage out,” succinctly puts it, an AI system is only as good as the information provided to it. Training using biased or otherwise unsatisfactory data can result in flawed and incomplete outcomes. As Levendowski writes, “[J]ust as code and culture play significant roles in how AI agents learn about and act in the world, so too do the laws that govern them. … The rules of copyright law…privilege access to certain works over others, encouraging AI creators to use easily available, legally low-risk sources of data for teaching AI, even when those data are demonstrably biased.”

With potential statutory damages running as high $150,000 per infringed work, AI creators often to turn to easily available, legally low-risk works train AI systems, often resulting in what Levendowski calls “biased, low-friction data” (BLFD). One such example is the use of the “Enron emails”, the 1.6 million emails sent among Enron employees that are publicly available online, as a go-to dataset for training AI systems. As Levendowski puts it, “If you think that there might be significant biases embedded in emails sent among employees of [a] Texas oil-and-gas company that collapsed under federal investigation for fraud stemming from systemic, institutionalized unethical culture, you’d be right: researchers have used the Enron emails specifically to analyze gender bias and power dynamics.”

What’s more, Levendowski describes how copyright law favors incumbent AI creators who can use training data that are a byproduct of another activity (such as the messages and photos Facebook uses to train its systems) or that it can afford to purchase. This can play a determinative role in which companies can effectively compete in the marketplace.

So how can we fix AI’s implicit bias problem? In her article, Levendowski argues that if we hope to create less biased AI systems, we need to use copyrighted works as training data. Happily, copyright law has built-in tools that help to balance the interests of copyright owners against the interests of onward users and the public: One of these tools is fair use. By examining the use of copyrighted works as AI training data through the lens of fair use cases involving computational technologies, Levendowski suggests that relying on fair use to use copyrighted materials in training systems could provide a promising path forward to combat bias and make AI more inclusive and more accurate.

Read the full article on SSRN; and learn more about Levendowski and her research on her website.

Amanda Levendowski is a Clinical Teaching Fellow with the NYU Technology Law and Policy Clinic. Her clinical projects and research address how we can develop practical approaches to digital problems. Amanda previously practiced copyright, trademark, Internet, and privacy law at Kirkland & Ellis and Cooley LLP.

Guide to Fair Use for Nonfiction Authors Now in Print!

Posted February 26, 2018

Authors Alliance handbooks

In celebration of Fair Use Week, we are pleased to announce the print release of our guide to Fair Use for Nonfiction Authors.

This past fall, we published the guide as a digital file under a Creative Commons license with the goal of putting it in reach of anyone who might need it. You can find a free download of the guide on our fair use resource page.

But digital can’t reach everyone, and many of us find paper resources easier to read and navigate. For everyone with a preference for paper, and for those who want to support Authors Alliance’s continuing non-profit mission, Fair Use for Nonfiction Authors is now available as a handsome softcover book. After joining or donating, purchasing a guide from us is one of the best ways to stand behind our organization. Buy one today from our store and we’ll throw in some Authors Alliance stickers.

“I’ve read and reviewed many explanations available about fair use for the creators of nonfiction works. This is—by far—one of the best. Do not waste any time before you start reading and digesting the sections that pertain to the kind of nonfiction work you are creating, whether it is a written work or an audio-visual work.  Every category of such works can benefit from the ability to use material pursuant to the doctrine of fair use.”
—Michael Donaldson
Founding Partner, Donaldson + Callif

To make your Authors Alliance reference library complete, Understanding Rights Reversion and Understanding Open Access, the first two volumes in our series of guidebooks, are still available via free digital download as well as in book format from our store.

Copyright Registration Part 2:
How to Register Your Copyright

Posted February 21, 2018

Last week we outlined the benefits of registering your work with the U.S. Copyright Office. If you missed it, start here to learn why registration is an advantageous practice for authors. In the second half of this two-part series, we explain how to register your works with the U.S. Copyright Office.

Copyright registration is a claim to copyright filed with the Copyright Office which creates a public record of facts about a copyrighted work, including authorship and ownership information. Copyright registration includes three essential elements: a completed application form, a filing fee, and a “deposit” (a copy of the work submitted to the Copyright Office). Each of these steps are outlined below. Authors, their agents, and owners of an exclusive right in a work can register a copyright. Often, but not always, if you are publishing your work, your publisher will register the work for you—but it is best to check, especially if you are retaining your copyright or publishing with a smaller press. If you are self-publishing your work, it will be up to you (or your agent) register the copyright to your work.

Registration can be made at any time within the life of copyright, but some benefits of registration are contingent upon timely filing, as described in last week’s post.

Application Form

Application forms for copyright registration can be completed and submitted online or through a paper application. The Copyright Office encourages authors to register online, where possible. Advantages of registering online include lower filing fees, faster processing times, and the ability to track the application status.

Online applications for copyright registration can be accessed from the Copyright Office’s Registration Portal, paper forms are available on the Copyright Office’s Forms page, or you can request forms through the mail by calling (202) 707-3000.

Before you begin an application, you will need to select the category of work that best corresponds to the work you want to register (e.g. literary works, visual arts, motion pictures, photographs, etc.). The information collected on the form is based on the type of work you are registering, but generally includes information about the work (such as the title, completion year, and publication year, if applicable), the author, and the copyright owner. Once the application is submitted to the Copyright Office, the application is a part of the public record, meaning anyone can request to see a copy of your application.

Filing Fee

The filing fee for online applications is currently $35 (single application) or $55 (standard application). The filing fee for paper applications is currently $85. If you are submitting your application online, the Copyright Office accepts credit cards, debit cards, or electronic checks. Fees accompanying paper forms must be paid by check or money order (unless the registrant maintains a deposit account with the Copyright Office).

Deposit Copy of the Work

You normally must submit a copy or copies of your work (known as a “deposit”) to complete the application process.

Some works, such as unpublished works and works published only in an electronic format, may be submitted electronically with an online application form. If you are submitting a work electronically, make sure that you submit it in an electronic file type acceptable to the Copyright Office. The maximum size for an uploaded file is 500MB.

If you are registering a work first published in the United States after January 1, 1978, you may be subject to “best edition” and mandatory deposit requirements. In this case, you must submit two complete hard copies of your work (or, in the case of certain types of published literary works and musical compositions, a single copy). If there are multiple editions of your work, you may be required to deposit the “best edition”. The best edition is the edition published in the United States at any time before the date of deposit that the Library of Congress determines is most suitable. For example, the Copyright Office’s Best Edition Statement requires that you submit the hard cover edition of your work rather than the soft cover edition, if your work is available in both forms. If multiple versions of your work are published, review the Best Edition Statement to determine which edition to submit.

Hard deposit copies can be mailed to:
Library of Congress
U.S. Copyright Office
101 Independence Avenue SE
Washington, DC 20559

If you are mailing a hard copy of your work after submitting an online registration form, be sure to include the shipping slip that was created when you filled out the application on your computer. If you are filing for registration using a paper form, send the work, the completed application form, and the fee in one package.

Please note that some works have special rules, considerations, or exemptions from the deposit requirement. For example, if you are registering a sculptural work or a computer program, you generally should submit “identifying material” (like photographs or drawings in the case of a sculptural work or source code in the case of a computer program) instead of the work itself. To learn more, read Copyright Office Circular 7D.

Processing time

As of February 2018, the average processing time for online applications is 6-8 months and for paper applications is 8-10 months. If your registration is approved, the Copyright Office will mail a registration certificate to the address specified in your application form and the effective date of registration will be the date that the Office received all of the required elements (the application, fee, and deposit).

For more information on copyright registration, see the Copyright Office Circular 2.

Last updated February 20, 2018.

We are grateful to Allison Davenport, former Authors Alliance Research Assistant, for her help with researching and drafting this post.

Copyright Registration Part 1:
Why Register Your Copyright?

Posted February 14, 2018

Under today’s copyright laws, copyright protection for original, creative works is automatic from the moment the work is “fixed in a tangible medium” (e.g., as soon as the author puts pen to paper, paintbrush to canvas, or saves a computer file). Although authors do not need to register their works in order to enjoy the protection of copyright law, registration has several benefits which make it an advantageous practice.

In this first article in a two-part series, we outline some of the benefits of registering your copyrights. Next week, we’ll explain how to register your works with the U.S. Copyright Office.

Copyright registration is a claim to copyright filed with the Copyright Office which creates a public record of facts about a copyrighted work, including authorship and ownership information. Copyright registration includes three essential elements: a completed application form, a filing fee, and a “deposit” (a copy of the work submitted to the Copyright Office). We’ll cover those steps in more detail in next week’s post on how to register copyrights. Authors, their agents, and owners of an exclusive right in a work can register a copyright. Often, but not always, if you are publishing your work, your publisher will register the work for you—but it is best to check, especially if you are retaining your copyright or publishing with a smaller press. If you are self-publishing your work, it will be up to you (or your agent) register the copyright to your work.

Registration can be made at any time within the life of copyright, but some benefits of registration are contingent upon timely filing, as described below.

Registration Establishes a Public Record of Ownership

Registering your work—and recording subsequent transfers of ownership—creates a record of copyright ownership that allows the public to identify and locate copyright owners. This benefits both authors and the public, and it helps prevent works from becoming orphans. Ownership records enable would-be users of works to locate the copyright owner in order to ask for permission or a license to make uses that are within the copyright owner’s exclusive rights, to provide attribution to the author, or to discover when a work is in the public domain. In the absence of a public record of copyright ownership, would-be users of a work may not know whom to contact, and may abandon potential onward uses of your work. This means that you could lose revenue from licensing opportunities and miss out on the chance to grant permission for uses which you would welcome (even without payment); consequently, your work may not have the vibrant life you hoped for in years to come.

Flora Foxglove retained all of the copyrights to her book of gardening tips and registered the work with the Copyright Office. Horace Horticulture wants to copy and share the book with his community gardening class, so he searches the Copyright Office’s records to find out how to contact Flora. He sends a request to Flora’s PO Box, asking for her permission to copy and distribute her work with his students. Delighted to share gardening know-how with budding enthusiasts, Flora gives Horace her permission to reproduce the work so long as he includes her name on the copies.

Blaine Blockbuster thinks that a movie adaptation of Betsy Bestseller’s latest novel would make the next Hollywood hit. He searches the Copyright Office’s records, and finds that Percy Publisher owns all of the exclusive rights in the work. Blaine contacts Percy and negotiates for a license to make a movie adaptation of the novel.

Registration is Necessary Before Initiating an Infringement Suit

In addition to facilitating downstream uses of a work, registration gives you additional rights in the event that your work is infringed. In fact, registration is a necessary precursor to a copyright infringement lawsuit: If someone uses your work in a way that you think infringes on your copyright and you want to initiate a copyright infringement lawsuit, you must register your copyright before you can do so.

Registration Within Five Years of Publication Provides Favorable Presumptions

If a work is registered before or within five years of publication, registration brings with it the presumption that the work is copyrightable and that the facts stated in the registration certificate are true. This may include information such as the name of the author, the name of the copyright owner, the title of the work, the date the work was published, and the effective date of registration. This means that in an infringement suit, if your registration was timely, the burden of proving your copyright is invalid will fall on the defendant. If you do not register within five years of publication, you can still do so, but how much weight a court will give the facts stated in the registration is at its discretion.

Registration Within Three Months of Publication, or Prior to Infringement of the Work, Opens Up the Possibility of Statutory Damages and Attorneys’ Fees

If registration is made within three months of publication of the work, or prior to the infringement of the work, statutory damages (predetermined payments established by law) and attorneys’ fees are available to the copyright owner in the event of an infringement lawsuit. Statutory damages typically range from $750 to $30,000 per infringed work (though they can be as high as $150,000 per infringed work for willful infringement, or as low as $200 where the infringer was not aware and had no reason to believe the use was infringing.) Timely registration also allows you to request reimbursement of your attorneys’ fees and costs of filing the lawsuit. If you do not register your work prior to the infringement or within three months of publication, your remedy in an infringement action is limited to the actual damages you suffered from the infringement (and any of the infringer’s additional profits that are attributable to the infringement), as well as injunctive relief (e.g., a court order restraining the defendant from copying the work).

Last updated February 13, 2018.

We are grateful to Allison Davenport, former Authors Alliance Research Assistant, for her help with researching and drafting this post.