copyrightdetective

Creating a Book Trailer Free of Copyright Concerns

copyrightdetective — Sun, 24 Jul 2011 20:00:14 +0000

For independent publishers doing our own publicity, there are so many options to choose from that even making a choice of what activity to devote our valuable time to is difficult. One activity that appeals to many authors in today’s Internet world is making our own video in order to draw readers into the realm of our fictional creation or to convince them of the benefits of reading our nonfiction book. Suddenly thanks to today’s technology taking on the task of filmmaker in order to share the wonders of our new book is is a real possibility. (YouTube, for example, offers a a delivery mechanism for many a neophyte filmmaker.) This new endeavor may be both exciting and overwhelming.

More and more authors are hiring a freelance professional to create a book trailer. Some are creating their own. Whether you are considering creating your own book trailer or having a professional do it for you, there are several issues related to copyright and plagiarism that you should be aware of before you begin. And I cannot emphasize too much the importance of timing here. So often, clients come to me with copyright clearance related questions after they have completed, paid for, and published their project whether it be a book or a book trailer. It is often too late to save the project if the author had not taken certain steps to ensure their work was protected when it was in the production phase.

Some considerations for the book trailer producer are as follows:

1. Be clear on who owns your video if you have a professional or even a friend or acquaintance create it. It is best to have a signed agreement with them conferring upon you all rights to the work, clearly stating that you and your estate own it in perpetuity and that you can alter it or use in any format, media, derivative or promotional projects, etc.

2. If you decide to use material belonging to others, consider the cost for rights and the accessibility of the items. It is often a mistake to depend on an argument of fair use to save the day in a copyright infringement suit. Ownership for any images, embedded video clips, movie stills, music, artwork, and background sounds should be determined and permissions acquired for your specific use.

If you find a movie still or poster or a move clip adds value to your work, it most likely has a great deal of intrinsic value in the eyes of the viewing public as well, and the more value placed on it by society, many times the higher the risk a copyright infringement claim may be levied against you or at least that a take-down notice be issued to you for its illegal use.

Before you move forward with you project determine any fees that will be charged to you. If you can actually obtain permission for such items as movie stills or posters, you may find the fees quite high. If you are on a limited budget as most independent publishers are, you may want to consider using images in the public domain. Check out the Library of Congress and other government sites for appropriate images. Other possible sources for images that may fit within your budget are stock photo sites. There are fees for images taken from the stock photo sites, but these fees are minimal in comparison to what a movie company or celebrity might charge. Also, remember that reading the licenses carefully for limitations on use is important.

Remember too that when your are delivering a book trailer to the public, you are engaging in a commercial activity. The reason for the book trailer is likely to get readers and thus buyers for your book. One of the four factors to be considered in a decision of fair use is the purpose and character of the work. A court most often considers a commercial use as less deserving of a fair use exemption than a non-commercial use.

3. Don’t forget to get model releases for any people in your video and remember that you must get parental permission to use children’s images in your production.

4. If you have any trademarked items like Coca Cola Cans or Barbie Dolls in your video, you may have to get permission from their owners. Check too, for fine artwork such as paintings on the wall in a scene you have shot.

If you feel a book trailer is the right way to promote your book, then go for it. Just remember to consider all copyright and plagiarism issues from you project’s inception. You can produce a great book trailer without risking copyright infringement claims.

For a good discussion of how an author on a limited budget turned her desire to do a book trailer into a reality, managing to protect her work from claims of copyright infringement at the same time go to Belles and Beaus Blogspot.

Copyright Infringement: Dangers of Copying from One Medium into Another

copyrightdetective — Thu, 07 Jul 2011 20:59:59 +0000

We creatives know there is nothing new under the sun. We know that art and literature thrive, in part, because creatives in these fields have so much wonderful work from which they may glean ideas for new works. And there is much public domain content that can be used to legally create derivatives. A derivative work is a work based on or derived from one or more already existing works. A derivative work is also known as a “new version.”

However, one of the exclusive rights given to a copyright holder is the right to make derivatives of his/her work. This exclusivity disallows others from copying the copyrighted work in order to create a new work, possibly in a different form—disallows, that is, except in rare cases where fair use may apply.

It’s important to remember then, that although building on past creativity is often a necessary and acceptable activity, this fact does not in many cases excuse direct copying of another’s copyrighted work without permission—even when copying only a small portion or copying from one medium to another. Gaining inspiration from another’s work that moves one to create something new and unique is not copying.

And copying a work that is now in the public domain and changing it, thus creating a derivative, is also, in most cases, perfectly legal and socially acceptable. But taking a screenshot from a movie that still is in copyright and making a painting that reproduces the scene, placing a still of the shot or the painting of the shot in a billboard advertisement, or placing it on a T-shirt or on a website is copying from one medium into another. Taking a short story still in copyright and creating a musical or a play based on it is copying from one medium into another, and it is making a derivative. Taking a print work and producing an online version or an e-book from it is creating a derivative. Taking two lines of copyrighted song lyrics and placing them in a poem or on a work of visual art could be considered creating a derivative. Such practices carried out without clearance of rights can be viewed as intellectual property theft or copyright infringement.

Copyright law does not allow for copying from someone else’s copyrighted work created in one medium into another medium without the copyright owner’s permission.

Another example of illegal copying from one medium into another that many do not imagine to be an infringement is the act of copying a photograph from a field guide into an illustration. The photo cannot legally be directly copied as an illustration without permission from the copyright owner of the photograph without the risk of an infringement claim being made against the copier. A painting or a photograph cannot legally be “recreated” as a sculpture without permission. A collage that includes small but recognizable portions of copyrighted work created by others could be found in a court of law to be an infringement.

Case in point: The subject of a photo used on post cards was copied into another medium—a sculpture. The artist was found to have infringed on the photographer’s copyright. Click here for a discussion of the case.

Relying on past works for inspiration is an important part of the creative process for most of us, whether we are writers, artists, illustrators, or photographers. We just need to remember that it can be very risky to publish a work based on and copied from another’s work if that work is still in copyright, even though and maybe especially because we create the new published work in another medium.

Sue Me? I Copied But Gave Credit—Learned That in School

copyrightdetective — Wed, 29 Jun 2011 20:14:58 +0000

So many of us learned early on in school that copying is OK as long as we give credit. I work with self-publishers often who have taken that lesson to heart in a big way and then hit a brick wall when trying to publish.

Now, some copy with no thought of the right or wrong of it. They have no concern about stealing someone else’s intellectual property as long as they feel they can get away with it. I am not addressing those scoundrels but rather those of us whose perception of value placed on written works or works in the creative arts may be skewed because of lessons learned long ago.

Our thinking can be foggy when it comes to what we think the author’s perception of our copying would be. Many of us as writers have some vague sense of “fair use” and may excuse our copying, thinking it’s a small enough amount to be considered “fair” by the work’s owner. We feel the owner will be “grateful for the publicity.” In many cases, this reaction is far from the one we may be confronted with after our work is published containing the infringing material.

Below are three tips for self-publishers regarding copying without clearing the rights:

1. There is no set number of words or amount of artwork defined in the US Copyright Law as a fair use.

2. Be very careful when using song lyrics and lines of poetry. The music industry is very litigious when it comes to protecting their interests. The publishing world is protective of the works of its popular poets as well. A few lines of a song or a few lines of a poem may constitute a substantial portion of the whole work and thus may have high value attached to them.

3. Photographers and artist value their work enough to keep an eagle eye out for illegal use of even a small portion of their work and many will consider legal action.

So, before using someone else’s work, it’s good for all of us to remember we are not writing an essay for our fifth grade teacher who may be thrilled at the fact we remembered to give credit to material copied from someone else. In the real world, when we are creating something of value and using in it another’s work which has value attached to it, we need to carefully consider whether we need permission to do so.

Register Copyright: What Happens If I Don’t?

copyrightdetective — Tue, 21 Jun 2011 14:11:42 +0000

It is common knowledge that copyright on a copyrightable work belongs to creators from the moment they create it. And life is hectic and time valuable for the self-publisher. We may be working on an ebook, putting out a newsletter, hosting a weekly blog or advancing our career in music or the arts by showcasing our talents on our website. If our copyright is protected without registration, why bother? Time and expense is required for this activity, and both these items are very valuable to most of us today.

Why register?

Registration could save you time and money and help you maintain control of our work.

Infringement and/or plagiarism are common activities today. In most cases, it’s better for us self-publishers to be proactive as well as reactive when it comes to protecting our copyrights.

If we register our works’ copyright within three months of their publication and we later win a lawsuit against a copyright infringer, we will be entitled to what’s called statutory damages. If we have not registered within this timeframe and win an infringement lawsuit, we will likely be eligible only for any actual damages we can prove. And actual damages are oftentimes difficult to quantify and to prove. Statutory damages awarded are much higher than actual damages in most cases. (They can sometimes total $150,000 per work infringed.) So if we really value our work online and off, we may wish to register it in a timely manner.

In order to file a lawsuit in federal court, copyright registration with the federal government is required. Registration can be completed online. The cost is minimal in many cases, considering the protection it gives your work: $35 if you register online. See the fees schedule here.

Where to register?

To register or learn more about the registration process, go to the Electronic Copyright Office Online Systems page. To learn about registering online works you may want to download Circular 66

As self-publishers today, we must know about and prepare for the dangers as well as the possibilities in publishing. A recent study by done by Envisional and commissioned by NBCUniversal found that 23.8% of Internet traffic involves content theft. As we work to create and publish in that kind of environment, can we afford not to take the time and effort needed to at least consider registering copyright in our works?

Picture That: Copyright Worth More Than a Thousand Words

copyrightdetective — Mon, 13 Jun 2011 21:51:36 +0000

Buried machinery in barn lot in Dallas, South Dakota, United States during the Dust Bowl, an agricultural, ecological, and economic disaster in the Great Plains region of North America in 1936. United States Dept. of Agriculture

It is often said a picture is worth a thousands words. Sometimes we as self-publishers forget to consider the worth of a photograph or an image and what it contains. It is true that some photographs may not have sufficient value attached to them to qualify for copyright protection because they add nothing unique to their subject. For example, a photograph of a famous public domain painting may be considered ”a slavish copy,” one that has as its purpose to make an exact reproduction of the art, to make an exact copy without adding anything unique to it. (Example of such a case.)

However, many photographs that we encounter every day on the Internet or that can be easily scanned from the publications of others and used in our print or digital publications do have the quality of uniqueness.

A common misconception among independent publishers and one that leads to frustration and failed publication projects is the one that photographs that can be easily lifted or scanned are free for the taking. Easy access and ease of use does not justify the taking in the eyes of the copyright law. Example here of a filing against someone operating under such a misconception.

A word to the wise blogger, newsletter, and e-book or print publisher: consider ownership issues related to copyright and trademark as well as privacy and publicity concerns related to any photo and to anything or anyone represented in any photos you are considering publishing.

Case in point regarding publicity and privacy issues: Rights to use a photo was purchased by a company from Flickr under a Creative Commons license and the photo appeared in an advertising campaign. The photo contained an image of a young girl. The girl’s parents sued the company, Virgin Mobile, for using the photo containing their daughter, and they sued Creative Commons because the photo was issued under their licensing scheme. Click here for the Creative Commons explanation of its arguments in the case. Although this case involves privacy issues and publicity issues and not copyright per se, the lesson for self-publishers is the same: consider all value attached to any photo.

Because pictures are at times worth more than many words, settlements and damages in cases involving infringement of a photo copyright can be quite high. Pictures can be worth much more than a thousand words. To protect yourself against infringement claims, clear copyrights before publishing photos or photo subjects with rights attached that belong to others or use a public domain photo as I have above. (This is a 1936 photo of the Dust Bowl taken by an employee of the United States Department of Agriculture.)

Hear Ye, Hear Ye—Declare Your Position, Protect Your Copyright

copyrightdetective — Mon, 06 Jun 2011 01:42:46 +0000

Many self-publishers know that books in print should contain a copyright notice. Unfortunately, that may be the extent of their knowledge about the importance of informing the public of their position regarding copyright.

Yes, our work is copyrighted under U.S. law from the moment it is created. However, to sustain control of our work and manage its use in a way that maintains its value, it’s important to understand the relationship between our audience, our online efforts to promote the work, and current common practices and misconceptions regarding our intellectual property.

Many of us are engaged in creating content for websites and blogs in order to showcase our abilities and expertise. This blog is an obvious example of that. It is important to claim these works as our own just as we know we should claim a print work. Plagiarism on the Internet is rampant. Many would-be infringers are simply ignorant of copyright law. But many who have a general knowledge of copyright law as it operates in other realms of publishing feel the Internet is a new frontier where anything goes, including copying without permission and without attribution. But some would ask if they had a clue about how to ask. Because technology has made copying so easy, it is tempting to use “other people’s stuff” without asking permission when no clear instructions for doing so are offered .

We should all remember to make it very clear to all in an obvious place on our blog and/or website how we stand on the issue. If we want to fully protect our work and want to be asked for permission to use it, we should always include a copyright statement like the one below:

Some authors mistakenly think they need to register their work with the US Copyright Office in order to place a copyright statement like the one above on their work. This is untrue. The misunderstanding arises from confusion of copyright law with trademark law which states that in order to use the registered trademark symbol ®, federal registration must be complete.

Now we may wish for our work to be copied in order to further our message, accomplish our mission, or get ourselves and our talents in the public eye. And we may not care that it is copied extensively as long as it is done so with appropriate attribution.

If so, we may wish to use a Creative Commons license that clearly defines this use. Go to creativecommons.org for more information on these licenses.

As a visual artist or a photographer, we may wish to use the Internet to showcase our work and sell it. We may wish to charge a fee for the use of our work, and we may not intend for anyone to freely copy it. We may wish to use a statement like the one below:

All images are copyrighted © by John the Artist/Photographer. The use of any image from this site is prohibited unless prior written permission from the artist/photographer is obtained. Use fees are attached to all of the images on this site.

We should always remember to make it clear to our online audience what our intentions are regarding our work. Do we want others to enjoy it by visiting our site. We may not intend to grant permissions for its use beyond that. Or is the work free for the taking? Is it work over which we want total control at all times? Do we want to be asked before it is used?

If we want to be asked, but do not inform our audience we wish for them to ask and where to obtain permission, we are placing barriers to correct usage and we are inviting abuse. This is true for print works as well as online works of course, but because of the ease with which copying can be accomplished online, the risks of lack of notice there are much greater than with print works .

Much time and effort often goes into creating our online presence. So it makes sense to be sure we have a statement on our website and/or our blog that gives clear instructions to our reader regarding use of our work.

About Face—Tyson’s and Obama’s

copyrightdetective — Mon, 30 May 2011 14:28:25 +0000

All the photos of Mike Tyson’s face in the Internet copyright news arena this past week carried me back to the not-too-distant past when another face was ubiquitous there—President Obama’s. Tyson’s facial tatoo had found its way to the face of an actor in the newly released movie “The Hangover Part II.” About two years ago, a facial expression, now famous, was everywhere in much the same way due to the Obama Hope poster copyright controversy. This controversy arose when a work of art was created based on a photo of Obama. The work was titled “Hope.” Its creator was a well-known graphic artist, Shepard Fairey.

We are all copiers at times, whether our preferred media is print, video (YouTube for example), or a blog. And what is there for us less well-known copiers to learn from these two copyright-related newsworthy examples?

Both faces belong to celebrities. Obama is more of a nontraditional celebrity. He is not a movie star, but he is definitely in the public eye, and his face could be said to be something of an icon now. Both Tyson and Obama might claim in certain cases a right of publicity, if not a copyright on their face. And no doubt the cases were brought forward and gained notoriety because the faces are so much a part of our culture. In both cases, the faces depicted added the perceived value to the works that spawned the public interest in them. That perceived value gave the suing parties the incentive and a good argument that the infringements affected their ability to benefit financially from their valuable works.

The first obvious question is WHO is doing the suing? Was it Tyson and was it Obama who threatened legal action for use of their face? The perceived value of the art created is tied to the faces, but the accuser in each case turns out to be someone other than the man behind the face. Tyson himself is in the movie in question. He had no reason to take the movie company to task. Since Obama could benefit politically from the popularity of the artist’s portrayal of his image, he also was without reason to bring suit for the use of his image in this case.

The person who had their face or some aspect of it captured or copied was in neither case the person who claimed infringement of rights. In both cases someone other than the subject of the art claimed infringement by the person who added something to the original creation—who made a derivative of it. In Obama’s case, a photographer named Mannie Garcia snapped an Associated Press photo of his expression and the photo became a popular copyrightable element. In the Mike Tyson case an artist named S. Victor Whitmill created a tatoo image on Tyson’s face and thus the tatoo became a popular copyrightable element.

In both cases the copyright owners claimed the abuser had created a derivative of their original work. Under U.S. Copyright Law, the copyright owner has the exculsive right to create derivatives. Fairey created a derivative of the Associated Press photo in another medium. He created a graphic art poster of Obama based on the photo snapped by Mannie Garcia and claimed by Associated Press. Warner Brothers included in their movie “The Hangover Part II” screenshots of an actor bearing a tatoo identical to the one created by Whitmill. Both parties accused of infringing were said to have published a derivative of the original work created without the express permission of the creator and/or copyright owner—the copyright owner claiming infringement in the Tyson case being Whitmill and in the Fairey case being Associated Press.

The lesson for us as self-publishers is to be sure before copying anything into our published works, whether these works be blogs, books, multimedia, or visual presentations of any kind, to consider who created each of the copyrightable elements that may have gone into the creation or production of the work we are copying. We should also consider the value placed on each separate component of the work by their separate creators or by the persons who have commissioned these creators to create the separate elements.

Let’s face it, although the risks of being sued for infringement may be low, the prospect of facing down an angry copyright owner is disturbing enough to keep most informed publishers from making derivatives of copyrighted works without permission. And it pays to consider all copyrighted elements related to the value of the work and who has a stake in each of them before using it without all required permissions lest we have to . . . “face” the music.

Self-publishers retain and protect their copyright with a new avenue for distribution

copyrightdetective — Mon, 23 May 2011 20:32:48 +0000

Nancy Mills, CIPA President, and James LaRue, Director, Douglas County Libraries

The great news for copyright owners of independently published works comes out of Colorado and has made it into Publishers Weekly, American Libraries, Laptop, and Library Journal!

The Colorado Independent Publishers Association (CIPA) which is a 501(c)(6) trade and professional association that supports and promotes self-published authors and the independent publishing industry has reached an agreement with Colorado’s Douglas County Libraries system. This agreement gets quality and vetted e-books by Colorado Independent Publishers into the hands of the reading public.

The primary goal of the Library e-Book Agreement between CIPA and the Douglas County Libraries is to facilitate the library’s identification and acquisition of e-book versions of quality independently published books by CIPA members. CIPA site

“Libraries are natural partners with independent publishers,” said Joseph Sanchez, the director of Library and Learning Services for the Red Rocks Community College. Mr. Sanchez, along with Jamie LaRue, Director of Douglas County Libraries, and Kenn Amdahl, past president of CIPA and a successful author and independent publisher in his own right, came up with the concept that led to this agreement. “We understand and value both copyrights and the great value of alternative viewpoints. We can easily integrate e-books into our collections, ensuring one use at a time, but also exposing authors to precisely the people who are looking for them.”

One of the main goals in working through the implementation of this concept was to protect the e-books of the copyright owners while allowing public access to these ebooks through the library system. One goal identified by the planning committee for this project was to “Identify and address legal and procedural issues involved in acquiring and loaning e-books from independent publishers.”

Copyright will be protected in this arrangement by a Digital Rights Management (DRM) system. Each copy the library district has purchased will be checked out one at a time, and the e-book will disappear off the borrower’s e-Reader after a specified period of time.

This is an exciting new concept and CIPA and the Douglas County Library system are to be applauded for their efforts in having the vision to comprehend the need and the courage and fortitude it took to implement the idea!

Copying the Bible, the Classics—Old Works/ Current Copyright

copyrightdetective — Sat, 14 May 2011 19:05:48 +0000

We can copy and publish from any edition of the Bible, right? The Bible is in the public domain, right? After all, it’s message belongs to all of us and is very old. What about Les Miserables? Victor Hugo died over 125 years ago. We couldn’t possibly be infringing copyright if we copy excerpts from these sources into a work we publish, could we?

In analyzing client’s manuscripts, looking for infringements and plagiarisms, I sometimes find evidence of the misconception that because the substance of a work is old, the copyright has expired.

In many cases the “old” works these misinformed clients have copied from turn out to be translations—derivatives of the original work. A derivative is a work based on or derived from one or more already existing works. Also known as a “new version,” a derivative work is copyrightable if it includes what copyright law calls an “original work of authorship.” In most instances, a translation contains enough originality to be considered a work worthy of copyright protection. The books of the Bible were not originally written in English. We know that. So any English translation must be a derivative according to US Copyright Law. For more information on derivatives, check out the U S Copyright Office’s Circular #14

In the case of Les Miserables, if you are using Julie Rose’s translation, which was published in 2008 (and which by the way has gotten rave reviews) you would have to request permission to take an excerpt from it and to publish your work containing the excerpt. You would need to acquire the right to republish the excerpt of this new derivative work, this new translation of Les Miserables, from the copyright holder Random House.

Many translations of the Bible are copyrighted and their copyright holders have certain limitations on the number of verses you can copy without acquiring permission. Some are more lenient than others with allowances for freely copying extensively. See the Bible Gateway site for the details on using passages from the New King JamesVersion. Also see t he Bible Gateway site for the more stringent limitations on copying set out by The Good News Bible.

Of course you want to acknowledge and properly credit your translation sources. Often, when granting permission, the administrator for rights will tell you how they want their work credited. For a good example of crediting various Bible excerpts see here.

Before copying and publishing excerpts from translations, whether on the Internet or in print media, it’s a good idea to go to the derivative work’s copyright page and see exactly when the translation was published. Then you should determine if permission is needed for the kind of use you mean to employ.

Consider the Source—Vine or Equine

copyrightdetective — Sun, 08 May 2011 13:47:15 +0000

As writers, we have been taught that in researching for our work, we should, whenever possible, go to the original or primary source—to get our information straight from the horse’s mouth so to speak. Because many times this activity is a time sucker, we choose a less demanding path. We get it through the grapevine. In other words, we settle for a secondary source. As a content editor who also does copyright clearance and permissions tracking, I can attest to the fact that failure to follow this sage advice—not going to the horse’s mouth—can cause you problems in at least two areas.

The first area is in the perception of your professionalism. One danger of citing secondary sources rather than primary sources is that you may lose credibility with your readers. Many writers often cite an anthology, a blog, or a website as their source for factual content, theory, and/or quotations created by a third party. Discerning readers are often put off by the fact the writer could not or did not bother to guide them to the primary work used so they could make some kind of assessment about its deserving of their acceptance.

The second area is the problem this laxity causes in clearing copyright for the work the lazy author uses. In almost every instance, a secondary source cannot grant permission for a copyrighted work they, themselves, have cited. They either acquired permission from the creator to use the content in their work, assumed a fair use, or used it while operating under a blissful misconception of some aspect of copyright law like the one that it’s always acceptable for a writer to copy another’s work as long as he gives credit.

Not going to the horse’s mouth during the writing process and then discovering the need to get permission from copyright owners when a manuscript is in its final stages of becoming a book can be a shock to the writer’s system. Even if the primary source can be found quickly and the request can be sent off almost immediately, it may take months to receive a reply to a permission request. Sometimes when the response finally comes, it is a denial. These scenarios can slow down or even halt publication.

When possible, it’s best to rely on copyrighted content for which you have located the original work because you are more likely to find the creator or an administrator of its rights. It’s best always, when using the work of others in your writing, to consider the source—vine or equine.