Category Archives: Issues

The Public Domain and New Translations

Posted January 31, 2022

As we round out January and the celebration of new works entering the public domain this year, Authors Alliance is pleased to bring you this post on a specific type of derivative work based on a work in the public domain: new translations of familiar stories. We are grateful to Authors Alliance’s research assistant, Derek Chipman, for authoring this post.

Public Domain

Earlier this month, we celebrated the latest trove of literary works entering the public domain, including Austrian author Felix Salten’s Bambi, a Life in the Woods. Written in German in 1923 and published in English translation in 1928, this celebrated coming-of-age nature novel, the basis for the popular Disney film, is now free for authors to use in any way they wish. However, it is important to note that translations are considered derivative works which are subject to copyright protection in their own right—while the original German Language text is now in the public domain, the 1928 English translation by Whittaker Chambers will not enter the public domain until 2024, since it was published two years after the original German. Similarly, the 1942 Disney film is also a derivative work with its own term of copyright protection and will not enter the public domain until 2037, including characters unique to the film adaptation like Flower the skunk. For more information about the public domain and derivative works, see our post on the topic from last year.

Translations and Copyright

So, what does all of this mean for authors and the public at large? It means that they can now freely access and download the original German text, but will have to provide their own translation or wait for a non-copyrighted translation in their preferred language if they wish to use the text in a language other than German. However, authors are still free to use the ideas and themes of the textual work, as these types of information are not protected by copyright. This also means that publishers will no longer have to pay the copyright holder when publishing a new translation of Bambi, a Life in the Woods, potentially increasing access to the work. For instance, this year, Jack Zipes has provided the first new available English translation since 1928 entitled The Original Bambi. Now, other translators can also translate the German original into English, or whichever language they choose, without having to obtain permission.

Why is This Important?

Translations of literary works enable these works to reach a wider audience and expose cultural works from different languages to readers. Different translations also lead to different interpretations of a work, and this can add cultural value to the work by situating a work in our time, like a recent new translation of Beowulf beginning with “Bro!” In the case of Bambi, Zipes claims that his new version affords the reader a translation closer to the original German, which many readers may find surprisingly more violent and dark than the original Chambers translation. Zipes states that his knowledge of Austrian German captures the dark and existential nuance of Salten’s language in the original work and that the 1928 translation contained errors that contributed to the “later misinterpretation of the Disney film.” However, at least one critic still prefers the 1928 translation, showing that different translations provide readers with more options to enjoy public domain works. New translations can add something new to the work and contribute to our cultural commons, complicating our understanding of existing literary works. Now that Bambi, a Life in the Woods freely roams the public domain, we hope our readers explore it to find new sources of inspiration.

Guest Post: The Constitutionality of Library E-book Licensing Legislation

Posted January 25, 2022

Person lying on a bright pink and red hammock holding an e-book reader — Photo by Perfecto Capucine on Unsplash

The following blog post was authored by Becca Lynch, a student clinician with the Samuelson-Glushko Technology Law & Policy Clinic at University of Colorado Boulder under the supervision of Professor Blake Reid, as part of an Authors Alliance student clinic project on library e-book licensing legislation.

Over the past year, various state bills have been proposed that would require publishers to license e-books to public libraries under “reasonable terms,” the most notable of which being the Maryland bill, which passed and was set to take effect on January 1, 2022.

As the pandemic has shown, the importance of public libraries cannot be understated. As a tax-funded institution created solely for public benefit, regulation of e-book licensing terms is important for the sustainability of libraries’ e-book lending.

On December 9^,2021, the Association of American Publishers (“AAP”) announced its filing of a lawsuit attempting to keep the Maryland bill from taking effect, and on January 14, the state of Maryland asked the court to dismiss the lawsuit. As this bill is the only bill of its type currently set to take effect, the outcome of this lawsuit could trigger similar lawsuits against other such proposed bills, such as the one currently pending in Rhode Island. While New York passed a similar bill last year, Governor Kathy Hochul recently vetoed the bill, citing the possibility of preemption as a reason for doing so.

The primary component of AAP’s complaint against the Maryland bill is its supposed preemption. “Preemption” is a legal doctrine which applies to block state laws when those state laws are not compatible with federal law. But, contrary to both AAP’s complaint and the United States Copyright Office’s initial letter on the matter, a conflict preemption analysis (which applies when state and federal laws actually conflict) does not provide a clear answer, nor is the handling of conflict preemption by courts a straightforward matter.

Courts have used a wide range of possible approaches to preemption analysis in the context of federal copyright law, the primary ones being (I) a balancing test from a case called In Re Jackson when the state law is alleged to conflict with U.S. copyright law, (II) deference to certain state market interests, and (III) examination of physical impossibility of compliance with both federal and state regulations. As a result, understanding and predicting the analytical approach a judge may take based on those available is a rather complicated process.

The test from In Re Jackson involves balancing a state’s interests (distinct from the interests of copyright law) against the potential for conflict between the relevant state law and federal copyright law. Under this test, the more substantial the state law interest undergirding the state law, the stronger the case is to allow that right to exist alongside federal copyright law. Moreover, there needs to be additional evidence to show that a claim arising from violation of the state law is more than a simple copyright infringement claim in order for the state law to not be preempted.

Under the second approach, deference to state market interests, courts consider whether there are significant state market interests animating the state law. Courts tend to allow state regulations that are designed to ensure a fair market, while finding that copyright law preempts state laws which force a copyright holder to distribute and license her work against her will.

The third approach is one where courts find that federal copyright law preempts state law in situations where compliance with both state law and federal law is impossible. In this situation, since the state e-book licensing laws do not deprive the publishers of their exclusive right to license e-books, complying with both state law and federal copyright law is not impossible. The publishers retain their exclusive rights and maintain control over the decision to license e-books to the general public. Only upon exercising this right must they abide by the reasonable terms within the state licensing law.

Maryland’s interests motivating its e-book licensing bills is simple, yet compelling: ensuring its citizens have access to culturally and socially significant creative works in the form of e-books. In addition, the law seeks to remedy an inequitable market situation by preventing publishers from abusing their market power to overcharge tax-funded public libraries. These interests are both substantial and distinct from those undergirding copyright law (which include, for example, incentivizing the creation of new creative works). The Maryland state bill would be enforced under state deceptive and unfair trade practice law, and as a result, the elements for bringing a claim under state law would contain much different elements than one under copyright law.

Ultimately, regardless of the analysis used, there is strong evidence that supports a finding that the e-book licensing bills are not preempted by federal copyright law under an implied conflict preemption analysis.

Although this lawsuit is still in its early stages, Authors Alliance will be monitoring its progress and keeping our members apprised of updates in the case.

Authors Alliance Submits Reply Comment in Copyright Office Press Publishers’ Right Study

Posted January 12, 2022

Last week, Authors Alliance submitted a comment to the U.S. Copyright Office, responding to its new study about establishing a new press publishers’ right in the United States which would require news aggregators to pay licensing fees as part of their aggregation of headlines, ledes, and short phrases of news articles. Our comment, made in the second round of comments on this study, also responded to an initial round of comments from other stakeholders. Authors Alliance opposes a new press publishers’ right because it is contrary to the interests of our members and small press publications and moreover is inconsistent with longstanding principles of copyright law.

A New Press Publishers’ Right Would Not Help Many Authors and Publishers

In our comment, we explained that Authors Alliance does not support the adoption of a new press publishers’ right. As a policy matter, making it more difficult for news aggregators to enhance the availability of news articles means that those articles will likely reach fewer readers. Authors Alliance represents the interests of authors who have among their highest goals seeing their works reach wide audiences, and takes the position that this new press publishers’ right would not serve the interests of these authors.

While some commenters argued that news aggregation has led directly to a decline in author and publisher incomes, other commenters, such as the Copia Institute, publisher of the publication TechDirt, pointed out that news aggregation serves its interests by helping its news articles reach readers. As a small publisher, Copia’s business model depends on news aggregation to see its work make an impact, and making it harder for news aggregators to do this would thus not serve its interests. While larger publications may be able to extract licensing revenue under a new press publishers’ right, smaller publishers lose out on both licensing revenue and the wide audiences they can reach through news aggregation. And authors who publish in press publications are not a monolith: while some authors may prefer to prioritize maximizing licensing revenue from onward uses of their work, other authors, such as many of our members, instead prioritize seeing their works reach broad audiences. Reaching wide audiences can help authors accrue reputational capital and advance their careers, which are some authors’ primary goals. Authors may also themselves aggregate press publications for research and collaboration purposes, and depending on the contours of the proposed right, it could create liability for these authors.

A New Press Publishers Right Would Run Afoul of Copyright Law

To make matters worse, a new press publishers’ right threatens to undermine important exceptions and limitations to copyright, like the free use of uncopyrightable subject matter such facts and ideas, and the doctrine of fair use. Yet several commenters argued that aggregating headlines and ledes should require a license and corresponding payment. This was the case despite the fact that the Copyright Office stated in its Notice of Inquiry that titles and short phrases are not protected by copyright, a longstanding principle in copyright law. In fact, the idea that reusing snippets of copyrighted works for a different purpose than the original—such as to preview news articles from different publications on a given topic—has been affirmed in numerous court cases, notably Authors Guild v. Google. Proponents of a press publishers right attempted to avoid the issue of titles and short phrases not being copyrightable by arguing for a novel “qualitative vs. quantitative” inquiry as to whether these short excerpts are subject to copyright protection. Under such a theory, if a title or short phrase is extremely creative, it should be protected. But there is no basis for such a theory in copyright law, which instead establishes that short phrases and titles are not protected—full stop.

Similarly, proponents of a new press publishers’ right skirted the issue of requiring licensing for excerpts containing predominantly facts and ideas. Facts and ideas are not protected by copyright for reasons of public policy: these types of information are instead treated as “building blocks” of knowledge, free for others to use and build on. Because snippets of news articles tend to be quite fact-heavy, a new press publishers’ right could also undermine this important principle.

Other Arguments Against A Press Publishers’ Right

In our comment, Authors Alliance also explained that a new press publishers’ right could be unconstitutional. If it were to require mandatory licensing for information which lacks the requisite originality for copyright protection, establishing this right could be beyond Congress’ authority. Yet some commenters argued that there should be no originality requirement for protecting headlines and ledes under a new press publishers’ right, which would be an improper expansion of the scope of what copyright protects.

Furthermore, we pointed out that establishing this right could violate U.S. treaty obligations under Article 10 of the Berne Convention. Often referred to as the “fair quotation right,” this provision requires all signatory countries to permit authors “to make quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose[.]” This means that mandatory licensing for short excerpts could violate this obligation.

Other opponents of the proposed press publishers’ right presented a variety of compelling arguments that it should not be adopted. Many echoed Authors Alliance’s sentiments, and also emphasized the important First Amendment protections for the press which preserve press publishers’ and authors’ right to speak and make editorial decisions about their content. A new press publishers’ right could also stifle innovation and chill journalistic speech, requiring more legal review of headlines and ledes in order for publications to avoid legal liability.

Read our full comment below:

Authors-Alliance_Press-Publishers-Right-Comment

Public Domain Day 2022: Welcoming Works from 1926 to the Public Domain

Posted January 4, 2022

Montage courtesy of the Center for the Public Domain

Literary aficionados and copyright buffs alike have something to celebrate as we welcome 2022: A new batch of works published in 1926 entered the public domain on January 1st. In copyright, the public domain is the commons of material that is not protected by copyright. When a work enters the public domain, anyone may do anything they want with the work, including activities that were formerly the “exclusive right” of the copyright holder like copying, sharing, and adapting the work.

Some of the more recognizable books entering the public domain this year include:

Ernest Hemingway’s The Sun Also Rises
A.A. Milne’s Winnie-the-Pooh
Langston Hughes’s The Weary Blues
Dorothy Parker’s Enough Rope
William Faulkner’s Soldiers’ Pay
Felix Salten’s Bambi

Copyright owners of works first published in the United States in 1926 needed to renew the work’s copyright in order to extend the original 28-year copyright term. Initially, the renewal term also lasted for 28 years, but over time the renewal term was extended to give the copyright holder an additional 67 years, for a total term of 95 years. This means that works that were first published in the United States in 1926—provided they were published with a copyright notice, were properly registered, and had their copyright renewed—are protected through the end of 2021.

Once in the public domain, works can be made freely available. Organizations that have digitized text of these books, like Internet Archive, Google Books, and HathiTrust, can now open up unrestricted access to the full text of these works. HathiTrust alone will open up full access to more than 35,000 titles originally published in 1926. This increased access provides richer historical context for scholarly research and opportunities for students to supplement and deepen their understanding of assigned texts. And authors who care about the long-term availability of their works may also have reason to look forward to their works eventually entering the public domain: A 2013 study found that in most cases, public domain works are actually more available to readers than all but the most recently published works.

What’s more, public domain works can be adapted into new works of authorship, or “derivative works,” including by adapting printed books into audio books or by adapting classic books into interactive forms like video games. And the public domain provides opportunities to freely translate works to help fill the gap in works available to readers in their native language.

Update: AAP Sues Maryland Over E-Lending Law

Posted December 10, 2021

Yesterday, the Association of American Publishers (“AAP”) announced it had filed a lawsuit in federal district court against the state of Maryland seeking to block the state’s new e-book lending law from taking effect on January 1st, 2022. This year, Maryland was the first of several states to pass a bill requiring publishers to license e-books to libraries on “reasonable terms,” and is the only state in which such a law is set to go into effect. Authors Alliance has written about this type of state legislation in the past, and we have been following these developments closely throughout the year.

State E-Book Lending Legislation

In 2021, multiple states proposed—and in some cases, passed—state legislation requiring publishers to license e-books to libraries on reasonable terms. The legislation responds in part to publishers’ trend in recent years of charging libraries higher prices for e-book licenses than they do consumers: in some cases, libraries must pay up to five times as much as an individual consumer for an e-book license. Moreover, these licenses often come with restrictive terms, such as limits on the number of times an e-book can be checked out before the license is terminated. The issue gained particular salience during the COVID-19 pandemic, as libraries across the country shuttered in-person operations, and patrons were forced to turn to e-books and other digital services in order to access library resources.

The Maryland Legislation

In March of this year, the Maryland state legislature unanimously passed the Maryland library e-book lending bill. Before the bill could become law, it faced last-minute opposition by the AAP, which claimed the bill was unconstitutional. Nevertheless, Governor Larry Hogan announced that the bill had become law in May, and would go into effect in January of next year. Described by its proponents as “fairly mild,” the Maryland legislation requires “a publisher who offers to license an electronic literary product to the public to also offer to license the product to public libraries in the State on reasonable terms that would enable public libraries to provide library users with access to the electronic literary product.” “Reasonable terms” are not explicitly defined in the statute, leaving Maryland libraries and publishers to negotiate these terms.

Constitutionality of State E-Book Lending Legislation

Following the Maryland law’s passage, the AAP maintained that it viewed the legislation as unconstitutional, arguing that the legislation interferes with the federal copyright scheme and is thus “preempted” by federal law. Then, in August, the Copyright Office weighed in on the matter in response to a letter from Senator Thom Tillis expressing concerns about these legislative efforts. The Office stated that, in its view, the legislation was likely preempted by the federal copyright scheme under a legal theory known as “conflict preemption,” which applies when a state law and federal law conflict such that it is not possible to comply with both. However, it is important to note that determining the constitutionality of a particular state law is the providence of the courts, not Congress (of which the Copyright Office is a part), so this opinion is merely an advisory one. Moreover, the Office noted that the specific legal question at issue has not been addressed by any U.S. court, creating additional uncertainty about whether the laws might be preempted.

The AAP’s Lawsuit

In its complaint, the AAP reiterates its position that Congress, and not state legislatures, has the power to create laws governing copyright and uses of copyrighted works, calling the Maryland legislation “a frontal attack on these federal rights.” It also argues that “the vitality of the publishing industry” depends on publishers’ ability to make business decisions—including whether to license their e-books to libraries and on what terms. The AAP also sent a letter to New York governor, Kathy Hochul, urging her to veto the New York analogue to the Maryland law on similar grounds. Overall, the AAP takes the position that it is possible for state governments to support libraries without this type of legislation. Yet the fact remains that libraries have consistently had difficulties meeting their patrons’ needs with regards to digital lending: until last year, one of the major publishers even had an embargo in place, preventing libraries from obtaining many copies of new books. Without legislation addressing the issue—such as the Maryland law now under attack—there is no guarantee that publishers will offer libraries e-book licenses on terms they can afford and which meet the changing needs of patrons.

The Consolidation of Publishing Houses, Past and Present

Posted December 8, 2021

Last month, after the Department of Justice filed an antitrust lawsuit to stop the merger of Penguin Random House and Simon & Schuster, we wrote about the intersection of antitrust law and publishing. The antitrust lawsuit is responding in part to a longtime pattern in publishing—the consolidation of publishers over time. In today’s post, we will discuss these consolidations, explaining how they can affect authors and contextualizing them historically.

Publishing Mergers and Acquisitions Today

Just last week, it was announced that a newly formed investor group had acquired Open Road Integrated Media—one of the largest standalone e-book publishers founded by former HarperCollins CEO, Jane Friedman. And Open Road itself purchased a UK-based publisher, Bloodhound books, just a few months back. This pattern is nothing new, but it shows how rapidly publishers can merge and change hands. It is not clear what will happen to Open Road’s operations in the wake of the sale, but the unpredictability of these transactions can work to authors’ detriments in a number of ways.

When publishers merge or acquire other publishers, a key question is what degree of independence each entity will have within the new one. For example, in the recent proposed Penguin Random House/Simon & Schuster merger, concerns emerged almost immediately about whether the various imprints under the Penguin Random House banner, which will include Simon & Schuster’s imprints if the merger goes forward, will be allowed to bid against one another for book deals. If not, the fewer competitors in the space to drive up bids for books might mean that authors receive lower advances. Publishers do allow intra-house competition in some cases: following the 2013 merger of Penguin and Random House, the new firm opted to allow its imprints to compete against each other, provided there was a publisher other than Penguin Random House involved as well.

Historical Patterns in Publishing Mergers and Acquisitions

While the proposed Penguin Random House and Simon & Schuster merger has generated significant controversy, mergers between trade publishers and publishing conglomerates have in fact been quite common over the past 50 years. According to a study published in Publishing Research Quarterly last year, purchasers tended to be corporate conglomerates in the 1960s and 70s, diversified media companies in the 1980s, financial buyers in the 1990s and 2000s, and other book publishers in today’s market.

Moreover, alarm over accelerating mergers within publishing is also nothing new. In fact, a 1977 New York Times article discussed the contemporaneous “merger fever” within publishing and even mentioned an antitrust investigation by the Department of Justice. Acquisitions like Bertelsmann’s purchase of a majority share of Bantam Books drew attention at the time, but these moves were just the beginning: Bertelsmann came to fully own Bantam in 1988, then merging it with Doubleday (a large conglomerate in its own right in the 1970s) before separately acquiring Random House in 1998 and reconfiguring Bantam and Doubleday as imprints within Random House.

Tracing these mergers can be dizzying, and moreover it can make it more difficult for authors to obtain reversions of rights when their works are no longer in print (rights reversion refers to the process of formally reclaiming rights that were formerly handed over to a publisher under a clause in the publication contract). For example, an author who published a book with Dutton Books in the early 1970s who wanted to contact her publisher in order to exercise her contractual right of reversion would have to trace the ownership of the publisher from to Dutch publisher, Elsevier, which bought Dutton in 1975, to a buyout firm, Dyson-Kissner-Moran, which purchased Dutton in 1981, to Everyman Library, which acquired Dutton in 1985, to Penguin Books, which purchased Everyman in 1986, and finally to Penguin Random House after Random House merged with Penguin in 2013. The author in this example would then have to contact Penguin Random House to obtain a reversion.

Despite these downsides of publishing mergers for authors, there is some evidence that the practice has benefitted the quality of trade books published. In a 1988 article on the topic, the New York Times argued that some mergers, such as Random House’s acquisition of Alfred A. Knopf in 1960, “strengthened both houses, thereby benefiting authors . . . and readers.” In fact, by the late 80s, the trade publishing industry was already dominated by a handful of major players, though the names and ownership structures have shifted over time.

Alternatives for Authors

It is important to keep in mind that there are now, and always have been, small and medium sized trade publishers, “boutique” publishers, and academic presses to fill some of the gaps left by consolidations among the largest trade publishers. Moreover, new and innovative publishers are emerging all the time: in 2020, Astra Publishing House was established as a literary-minded U.S. publishing house. Funded by Chinese media conglomerate, Thinkingdom Media Group, the firm is staffed with several trade publishing veterans. Similarly, this year, podcast host Zibby Owens announced the future launch of Zibby Books, which will publish just 12 books a year to start and feature an innovative profit-sharing program between authors and the firm’s employees.

While there are undoubtedly downsides for authors when trade publishers merge, it may also be that the latest transactions are simply part of a trend that has continued for years, albeit with different players and in different forms. In addition to the other types of publishers discussed above, open access publishing and self-publishing platforms have also risen in popularity in recent years, giving authors still other options when the trade publishing conglomerates are not appropriate for their works and goals.

Q&A with Peter Kaufman: Open Access Publishing and Access to Knowledge

Posted November 30, 2021

In today’s post, as a part of our series of open access success stories that spotlight noteworthy openly accessible books and their authors, we’re featuring Peter Kaufman of MIT Open Learning. Kaufman made his new book, The New Enlightenment and the Fight to Free Knowledge, available for free under a CC-BY license upon its publication by Seven Stories Press. In the book, Kaufman discusses “the powerful forces that have purposely crippled our efforts to share knowledge widely and freely.” By releasing his work under an open access license, Kaufman has pushed back on these forces while also ensuring that his work reaches a wide audience. You can find the open access edition of the book here.

Authors Alliance: Can you tell us why you opted to make The New Enlightenment and the Fight to Free Knowledge openly available?

Peter Kaufman: My book is about the forces that have constrained our access to knowledge in the modern world, some of the angels that have fought to increase that access, and some of the monsters that continue their efforts to suppress it. The book was made available from the very date of publication as a downloadable free edition – and under a CC-BY license, to boot, which allows for the broadest use and reuse possible. My publisher, Dan Simon of Seven Stories Press, is a progressive deeply committed to releasing “works of the radical imagination,” as he puts it – and to media experimentation of the kind we all support.

AuAll: Did your audience or the subject matter of your book influence your decision to publish openly?

PK: Yes, beyond the history in the book – it opens in the 16^th century – and the contemporary debates that I cover from the 20^th century on, I’m addressing progressives who benefit from encouragement and example, and those on the fence about the many advantages – social, cultural, economic – of open access. I have been a long-time OER advocate and work at MIT Open Learning – the pearly gates for open access in higher education.

AuAll: What results have you seen from publishing your book openly?

PK: Because of the subject matter but also because of the license, the book launched with public online discussions at law schools, book stores, libraries, universities, and other organizations at the cutting edge of the freedom-to-know, including the Internet Archive and Creative Commons. A program with Wikipedia is forthcoming. I believe that the progress resulted in numerous social media impressions that otherwise we would not have seen – and postings by advocates in media reform, copyright reform, and free software.

AuAll: Could you share some lessons learned or other suggestions for authors?

PK: Do it. My book makes the point that in the end – in the long term, as John Maynard Keynes used to say – we all wind up in the public domain. Accelerate that process. Gain new readers. Get the right kind of attention. Find like-minded advocates. Contribute knowledge freely to the world a little faster than you otherwise would have.

Permissions Tips and Tricks from our New Guide

Posted November 17, 2021

magenta cover of third-party permissions guide

Earlier this month, Authors Alliance released a brand new guide—the Authors Alliance guide to Third-Party Permissions and How to Clear Them. In today’s post, we will share some of our favorite tips and tricks from our guide on how authors might approach the permissions process and troubleshoot when they encounter difficulties. If you’d like to learn more, check out our new guide, available under a CC-BY license for you to download and share.

Start early, but not too early. Because getting permission from rightsholders to use third-party materials in your work can take some time, it is prudent to start early, as the process can take anywhere from days to months. But clearing permissions too early in your writing process can pose its own risks: in some cases, third-party materials end up being edited out of a book during the publisher’s editing process, and if authors have already cleared and paid for these permissions, they have assumed financial burdens that turned out to be unnecessary. For this reason, it is prudent to coordinate with publishers to ensure authors understand their permissions timeline.

You have allies. Authors tasked with clearing permissions may find the process daunting, as it is intimately related to the legal aspects of publishing, but often the responsibility of the author, who may understandably lack the legal sophistication of publishers. But it is important to keep in mind that publishers share an author’s goal of seeing their work published and successful. While a publisher may not be able to undertake the permissions process on an author’s behalf, they may be able to provide suggestions, form permission letters and logs, and other helpful information if you find yourself stuck. Similarly, academic scholarly communications offices and authors groups like Authors Alliance exist to support scholars and authors, and can sometimes provide general guidance or field questions.

Don’t be afraid to negotiate. Like a publication contract, a permissions agreement is a legally binding contract that can be enforced in court if it is breached. This means that the terms of the permission agreement are quite important, and it is prudent for authors to take care to understand these terms in order to avoid exposing themselves to liability. It also means that like publication contracts, permissions agreements can be negotiated. Authors should feel empowered to negotiate with rightsholders on fees and other terms, and in fact, authors who come to the table prepared to explain their position may be more likely to convince a rightsholder to compromise.

Remember fair use. As we discuss in our guide, the doctrine of fair use permits authors to use third-party materials in their own work without permission in some circumstances. For authors who think they may be able to rely on fair use, our permissions guide provides an overview of how an author might think through these issues. Authors who want to learn more about fair use can also check out our guide to Fair Use for Nonfiction Authors for a more in depth discussion of the doctrine.

Consider creative workarounds. When an author is not able to obtain the permission they need to make use of a particular third-party work, they may have other options that can still enable them to reach their goals for their works. Publicly licensed works, works that are in the public domain, and original commissioned works can serve as adequate substitutes in some cases.

Book Publishing in the 21st Century: What’s Antitrust Got to Do With it?

Posted November 9, 2021

Last week, the Department of Justice announced that it was filing an antitrust lawsuit to block Penguin Random House, the largest major trade publisher in the country, from acquiring Simon & Schuster, itself one of the so-called “Big Five” publishers (formerly the Big Six, until another major acquisition of Penguin Books by Random House in 2013). And this is not the first time the publishing world has been shaken up by antitrust: in recent years, the government has also initiated major antitrust lawsuits against Apple and Amazon for how these companies price e-books they sell. In the wake of these developments, authors may be asking themselves how these antitrust cases affect the publishing ecosystem and why antitrust litigation in publishing is becoming a more common occurrence. In today’s post, we will survey the landscape of antitrust publishing litigation and explain how the proposed merger of Random House and Simon & Schuster, as well as the antitrust lawsuit intended to stop it, might affect authors.

Antitrust and Publishing

Broadly speaking, antitrust law aims to protect market competition, ensuring that no one company wields too much market power. Antitrust laws have existed in the U.S. since the late 19th century, and have the goal of protecting consumer interests by ensuring that there are “strong incentives for businesses to operate efficiently, keep prices down, and keep quality up.” In the 21st century, the consolidation of publishing houses and book distributors over time into fewer and fewer companies with larger and larger market shares has begun to raise antitrust concerns. In this way, antitrust law seems a natural fit for publishing: over the past 50 years, publishers have steadily merged, resulting in a market dominated by only five major players.

Antitrust and E-Book Price Fixing

In recent years, the government has used antitrust law to mount challenges to various companies’ e-book pricing practices. The most prominent case was U.S. v. Apple, in which a judge found Apple had conspired with several large trade publishers to fix e-book pricing in its iBooks store, hampering retail price competition from other e-book sellers. These publishers were also implicated in the lawsuit, but elected to settle out of court. Ultimately, Apple was required to pay more than $140 million in consumer refunds in addition to other fees. More recently, a group of e-book purchasers brought a class action lawsuit against Amazon, alleging that by keeping its pricing for e-commerce lower than its competitors under a company policy, it engaged in anticompetitive behavior with regards to e-books and other products, harming purchasers of these products.

Antitrust and Authors’ Interests: United States v. Bertelsmann

The latest antitrust lawsuit in the publishing world, U.S. v. Bertelsmann (Bertelsmann is the German company that owns Penguin Random House), proceeds on a new theory of market competition. Rather than focusing on harm to consumers of books that might result from anticompetitive behavior, the Department of Justice emphasizes the harms to authors that would be likely to occur following the proposed merger. With just four major trade publishers to choose from, authors of trade books could be at a substantial disadvantage in negotiating for the best contract terms and highest advances. This is because rather than five competitors bidding for books, there would be just four, meaning less competition and less advantageous terms for authors who publish with the Big Five.

The government explains in its complaint that a Penguin Random House and Simon & Schuster merger would give that megapublisher revenues “twice that of their next closest competitor.” The new firm would wield tremendous market power, which could in turn disadvantage smaller publishing houses that lack the resources of the Big Five. Interestingly, the complaint does not discuss the fact that the 2013 merger of Penguin Books and Random House was already an unprecedented consolidation of power in the industry, as those publishers were the two largest trade publishers at the time. While this undoubtedly reduced competition between the publishers and likely harmed authors’ incomes in the same way as the new complaint alleges, no antitrust case was brought at the time. This change in the application of antitrust law to the publishing industry may be a consequence of a change in presidential administrations or the evolution of antitrust law generally.

Other authors groups have sounded the alarm about the proposed Penguin Random House and Simon & Schuster merger, emphasizing the harm that could occur to authors’ livelihoods if the merger goes through. By grounding its antitrust case in the interests of authors, the government has echoed these concerns and signaled that purchasers of books are not the only ones who matter when it comes to ensuring fairness in the book market.

Announcing the Authors Alliance Guide to Third-Party Permissions and How to Clear Them

Posted November 2, 2021

Today, Authors Alliance is thrilled to announce the release of a brand new educational guide for authors: Third-Party Permissions and How to Clear Them, authored and edited by Authors Alliance staff. We were inspired to create this guide, the fifth in our series of author guides, by the myriad questions we receive from authors about the third-party permissions process. The difficulty for many authors is that publication contracts usually place the ultimate burden for clearing permissions and paying any associated fees on the author, but the legal issues involved can be difficult to wrap one’s head around, particularly when approaching the process for the first time. We created this guide in order to fill that gap, demystifying the legal and procedural aspects that can make permissions so challenging.

Our guide walks authors through the permissions process, beginning with an overview of copyright and publication contracts to help readers understand why permissions are required in the first place. Then, we explain circumstances in which permission is not required (like when the use of third-party materials is a fair use or the materials are in the public domain) to help authors determine whether to request permission in the first place. Next, we offer some tips on how to identify and locate a rightsholder and go over the process of actually securing the permission. Finally, we conclude with a discussion of potential options for authors who are unable to obtain permission after making a concerted effort to do so.

Our new guide covers both text and image permissions, and we note throughout where these two types of permissions work differently. We created the guide with the goal of making the permissions clearance process as clear and comprehensible as possible in order to demystify a part of the publication process that can be intimidating for first time and veteran authors alike.

Our guide is available today for free as a PDF under a CC-BY 4.0 license, and will be available to purchase as a print book later this year. We are indebted to the expert reviewers, publishers, and authors who helped us make this guide a reality and ensured it reflected the realities of third-party permissions in publishing as well as serving the needs of our diverse body of members. We are delighted to bring you this new resource, and hope it helps take some of the sting out of permissions so you can focus on what really matters: creating new works of authorship that can contribute to the commons of knowledge and help you reach your goals as an author.