Today we’re discussing copyright, specifically infringement. Piracy of our work is something that we authors have to deal with it. But could we inadvertently be infringing upon others when creating our own works?
My guest today is the incredibly brilliant and multi-talented, Leslie Burns. A copyright lawyer by trade, she was kind enough to stop by and clear up the many misconceptions of copyright infringement.
Hi Leslie, thanks for stopping by. Tell us a little about yourself and what exactly it is you do?
Short form is that I’m an over-educated advocate for the creative professional who wears obnoxious shoes. Longer form is that, after grad school (French linguistics, film, culture, and medieval lit), I worked as a rep, a studio manager, in advertising and design on the organizational side, and then as a marketing consultant for visual creatives, particularly commercial photographers. I wrote books, taught in art schools, and gave lectures on the business side of being an independent creative pro. I finally realized my dream of attending law school and now I’m a lawyer (licensed in the state of California) who does primarily copyright law for creative pros. I work with the Law Firm of Carolyn E. Wright, LLC, better known as photoattorney.com. We work mostly with visual artists, but not exclusively. I still do a teeny bit of non-legal consulting under my own business name of Burns Auto Parts Consultants (burnsautoparts.com and facebook.com/burnsautoparts).
Oh, and in that vein, I have to say this: none of the information below is legal advice. I’m just answering some questions for educational and informational purposes. If you have a legal question, go talk privately to your very own lawyer.
Self-publishing has taken off. People are rushing to publish their memoirs, fantasy sagas, murder mysteries and much more—most of them without any thought to copyright infringement. Are there any steadfast rules we self-publishing authors should abide by in general to keep us out of trouble?
My general rule is that if you even think there is a chance that you might be using someone else’s work, at all, ask permission. It’s better to get a “no” now than a summons later.
And don’t use any real names–of people or products–without permission. That’s not copyright stuff, but rather rights of privacy/publicity and trademark stuff. If you feel like you need to include that material to tell your story, then have your story vetted by an intellectual property lawyer before publishing it.
What are some of the biggest myths about copyright infringement either with images or words?
“If it’s on the internet, it’s free!” Oh, just kill me now! Same for “There was no © notice” (one is not required for protection!) or “It’s on Google so it’s in the public domain.”
Oh, and “my use is Fair Use!” Fair Use is a fact-specific 4-prong test that the courts look at case-by-case. It’s complicated. Just because you think it is fair doesn’t mean it is legally Fair Use. There is no safe percentage of the whole or number of words or any specific guidelines at all.
I see a lot of authors telling other authors that it’s okay to use brand names in their books so long as they don’t use them in negative way. Good rule or complete bullshit?
Mostly bullshit (see answer above). If you use it in a negative way, you really are inviting a lawsuit, but even if you think it is not negative, the company might not like to be a part of your magnus opus and will still sue you. Think about a book like (ew) 50 Shades of Grey–which I haven’t read by the way so I’m just making this up–if the guy uses a particular brand of ties to bind the woman, Brooks Brothers may not want that association even though the book is wildly popular. Why run the risk? Ask permission, or fake it.
It’s common for many authors to find their books being downloaded on torrent sites and in some cases, out right stolen and uploaded to Amazon under another account. An email to Amazon will get it taken down and sometimes a letter to the torrent site can get the book removed. At what point should the author contact someone like you for help? Should they even bother?
First rule: don’t be a hypocrite. Don’t get music or movie or anything off those “free” sites (torrents, whatever). All they do is rip off other artists–people just like you.
Okay, when you send an email to Amazon or a torrent, you need to do it as an official DMCA Takedown Notice and there are specific legal requirements for that. There are loads of example letters online so I won’t go into the details here, just follow the models and hopefully the work will be taken down.
Now, that does NOT mean you can’t sue someone for that infringement! If Amazon (for example) takes your book down after a Takedown Notice, you cannot sue Amazon, but you can still sue the jerk who posted it in the first place! So, before you take anything down, preserve the evidence! Take screenshots, buy the product if possible, just make an evidentiary “paper trail,” and then call your attorney.
Actually, very first thing you need to do is register the copyright in your work before you do anything. I mean, before you publish–go to Copyright.gov and use the e-CO to register your work. It’s not hard to do yourself. That way any infringement will happen after the work is registered and that makes a big difference in how much money you can get! If your work’s copyright is registered before the infringement occurs, you can (warning, legalese ahead) elect to receive statutory damages which go from $750-$30,000 per infringement and can go as high as $150,000 if it is a legally willful infringement. Also, you can get an award of your legal fees, but ONLY if the copyright is registered BEFORE the infringement takes place. So, register the work as soon as it is created! I call it the cheapest insurance you can buy.
I often hear a lot of “Can I” questions. Authors asking other authors what they can and cannot do. I know, the blind leading the blind. Anyway, these questions range from incorporating lyrics, quotes from a celebrity, a verse from a poem and many other sources into their books. The latest is taking reviews left on Amazon or some other site and incorporating it into their books front-page matter or on the author’s website. Is this okay?
I’ve never seen a case about this review copying yet, but it’s only a matter of time… it’s probably not okay and don’t do it without getting permission of the person who wrote the review. How hard is it to ask? Also, you will want to check the terms of Amazon or whatever site–they may have a clause stating that you cannot use anything posted on their sites and so if you do, boom, you’ve just stolen their stuff.
And I hope you don’t mean people are taking reviews from other works… because then, well, what the hell are people thinking?! That’s got all sorts of wrong built-in there. False endorsements violate more than just IP laws… don’t go there.
Can an indie author really afford to hire a copyright lawyer? Are there typical things that an author would hire copyright lawyer for? Any myths about hiring a copyright lawyer?
Biggest myth: we are rich trolls. Hate that. Most of us are trying to defend the rights of artists and that is a hard row to hoe today when Google and Megaupload and the like all are pushing for free content. A lot of copyright attorneys are artists of some sort themselves–we are a weird, passionate lot. Oh, and we’re not rich either (I drive a 2001 Miata, not an $80K Porsche).
As for hiring one, well, every firm does it their own way so I can’t speak for the industry as a whole, but I do know that more than just our firm will do a basic look at a possible copyright infringement matter for free, to see if there is a potential claim at all. Our firm (and others) also will take some matters on contingency, which means that the client only pays expenses until the case is won or settled and then we get a cut of that award/settlement. The percentage varies but generally will be between 1/3 and 1/2, depending on how complex the case is and how far it goes. Expenses can vary as well and can add up, but not all do. It just depends. We do a lot of work with small artists and small cases, many of which we settle before we even file in court so the expenses stay low. And other cases or other work, like reviewing contracts or licensing, we do on an hourly rate.
So, if you think your work might be being infringed, it’s worth running that by a copyright lawyer. Like I said before, document the potential infringement with screenshots, etc., before doing anything–and that includes before contacting the potential infringer in any way. Oh, and if you do take matters into your own hands and contact the infringer directly, you need to be very careful because you can not only accidentally limit how much you might be able to collect, you could inadvertently cross the line into extortion. That would be, in Ghostbusters terminology, crossing-the-streams-bad.