Tag Archives: copyright

Writing and the Use of Trademark Words

The use of trademarks is a very litigious business for those who commit infractions. You better not title your strawberry drink Coca-Cola, or call your car design the Toyota Prius or Toyota Pumpernickel. Most of this seems obvious. The maker and manufacturer own the right to that brand and no one will ride on their fame and steal their sales. It can get as contentious as the famed Disney lawyers who have actually trotted into a little flea market and told a woman to cease and desist in selling clothes made with Disney trademarked designs. The fabric was bought legally; it was the fact that she was trying to sew the cloth into clothing and sell that, that Disney objected to. Lawyers for Marvel contacted Vancouver media at one point and told them to stop calling a particular cat burglar (who climbed the side of buildings ) Spider-Man. They didn’t want the comic book hero associated with the dark side.

These areas can become very contentious, and there are copy cats who will take a name and change one letter while keeping the font and style the same. Companies also trademark their brand colors but when it comes to the world of writing there are many different areas.  If I’m putting a brand name into my magazine or website, say as an ad that they paid for, then I have to use it properly, with either a registered® symbol or a trademark ™. These are different forms of branding. But what happens when we’re talking about fiction?

This came up in the writers’ group I belong to and it caused some upset as one author felt picked upon, although we were discussing the vagaries of the situation. Someone said her manuscripts had been rejected from a publisher because she mentioned name brands in her story, such as the character putting on his Armani suit and driving his Rolls Royce. In fact, a writer can using any brand name in their fiction and they do not have to put trademark or register marks into the text. As an editor I’ve sometimes had to pull these symbols out. The discussion continued that it would be okay to have a character drink, say, an Absolut vodka but to drink piss-warm Absolut would possibly be seen as defamatory.

The truth is, it would be an extremely rare case of any publisher ever being sued (or the writer) because a brand name was used in a negative light. It happens all the time. But this is very different for fiction than for advertising and marketing materials. Even nonfiction, as in a review, a critical piece or a journalistic article on a company or a product does not curtail the writer from writing negatively about that product and naming it. There have been science fiction novels that had various corporations taking over or running the future and these did not depict the shiny side of the corporation.

A publisher who asks a writer to remove every name brand from a piece of fiction could be doing it for several reasons, but should explain why they want it removed:

  • they think the usage actually detracts from the writing
  • they fear libel for the defamatory use of the name
  • they have a personal feud with a company
  • other?

The first reason is the only valid one, while the third is more a case of personal issues that should not interfere. And the second reason is really ridiculous. I commented and still maintain that a publisher who fears being sued is not knowledgeable in the ways of publishing, fiction and trademark issues. You don’t have to be an expert to know this and there are numerous examples out there. Not all publishers are educated on copyright and publishing, as was seen with the Food Source editor who thought everything on the internet was up for grabs and public domain. Not so.

If you opened a book store and called it Kodak, or a shoe store and named it Xerox, you would run into branding issues. But if you opened a bookstore called Blackberry Books, you wouldn’t and in fact there used to be a bookstore by that name. If you write about a drug smuggler who drives a Humvee and loves her Converse runners because they help her escape faster you’re not going to have a problem. If you write a book saying that Lulu Lemon yoga pants cause cancer, you better be able to prove it or you’ll be slammed with a defamation suit.

Product placement in a movie or TV show is a big thing worth big bucks. You, the writer, naming any brand in your story is not what your story is about, yet it could be a major part of the plot and it would still make no difference to those corporations. So write away and don’t worry. This blog has not been brought to you by Pepsi, Disney nor Exxon.

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Publishing: How To End Your Career In Five Easy Steps

Here’s how you do it:

  1. Steal articles from other writers
  2. Publish those articles
  3. When the writer finds out and asks for an apology and compensation send an arrogant reply
  4. Have a Facebook page where people start posting, because that writer wrote about it on her blog
  5. Don’t say anything and watch your career go up in smoke in 24 hours

The internet has sped up the access to information but it has also sped up karma. On November 3rd, Monica Gaudio http://illadore.livejournal.com/30674.html posted on her Live Journal how she’d been ripped off. A magazine called Cooks Source took her article,which she posted on this website: http://www.godecookery.com/twotarts/twotarts.html and wholesale printed it in their magazine, without her permission and without compensation. When she found out she contacted the editor Judith Griggs and had a bit of to and fro in emails. Next, she says:

After the first couple of emails, the editor of Cooks Source asked me what I wanted — I responded that I wanted an apology on Facebook, a printed apology in the magazine and $130 donation (which turns out to be about $0.10 per word of the original article) to be given to the Columbia School of Journalism.

What I got instead was this (I am just quoting a piece of it here:)

“Yes Monica, I have been doing this for 3 decades, having been an editor at The Voice, Housitonic Home and Connecticut Woman Magazine. I do know about copyright laws. It was “my bad” indeed, and, as the magazine is put together in long sessions, tired eyes and minds somethings forget to do these things.

But honestly Monica, the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me… ALWAYS for free!”

Let’s break down this lovely and arrogant reply:

  1. She claims she knows copyright laws, however they are long and complicated and as she goes on, she doesn’t know the first thing about copyright, let alone its convolutions.
  2. She says the web is considered public domain. Again, that is absolutely wrong as there is original graphic art, books, songs, magazines, etc. posted on the web and many people’s personal blogs like this one, and none of it is public domain unless it says so.
  3. She claims “it” as in copyright infringement happens a lot especially in the workplace and on college campuses. Perhaps it does, but workplaces fire people and campuses boot students who are caught plagiarizing someone else’s works.
  4. She says Monica should be happy they didn’t lift the article and put someone else’s name on it. So I guess it’s okay to lift an article and keep Monica’s name on it.
  5. She tells Monica her article needed editing and now Monica can use it for her portfolio, forgetting that in most cases the author can still approve edits, should the author know the magazine is using the story.
  6. As well, she can’t understand why Monica would want money if they edited her article, forgetting that this is the job of an editor, when they have bought a piece and that the author is still paid. Though somehow, this editor thinks Monica should pay her because she stole the article, printed it, edited it without permission and then Monica should be grateful.
  7. She then goes on to say she never charges writers for advice. Thank god for that because her advice sucks.
  8. Oh and the writers always write for her for free. Wow, because writing is worth so little and no one should be paid and she is so mighty and her magazine so godlike they should just grovel in the mud and feel blessed to be noticed by such an entity.

Wow. The sheer arrogance in this and lack of any real apology or understanding of copyright or the editing process has buried this woman in hellfire. How do I know? As I post this, I think back to only 24 hours ago when I first read Monica’s piece, then checked out Cooks Source’s meager webpage and their Facebook page. I was the third person to post there in regards to their appalling behavior.

In the last day about 3,000 people have posted and Cooks Source is the laughing stock (just like soup but with less taste) in many writing circles, not to mention the newspapers. How to kill your mag. Of course, good ole Judith thinks it’s great. Here’s what she posted about 16 hours after the debacle ensued:

Well, here I am with egg on my face! I did apologise to Monica via email, but aparently it wasnt enough for her. To all of you, thank you for your interest in Cooks Source and Again, to Monica, I am sorry — my bad!
You did find a way to get your “pound of flesh…” we used to have 110 “friends,” we now have 1,870… wow!

Best to all, Judith

(Should we edit her supposed apology and point out she misspelled “apparently” and then get her to pay us for it?) I guess she doesn’t realize that most of us don’t give a damn about the magazine, that she owes Monica more than an apology, not to mention all the other authors that she’s stolen from, which has come to light because of this. These friends should be enemies and the magazine has sunk itself or at least Griggs’ career. Will she surface again? Oh sure, just like the scum in the proverbial barrel. But any smart writer will not come within 100 feet of anything she’s involved in. Interestingly, their meager webpage now has nothing listed under the “About” or “Contact Us” pages.

Karma is a bitch.

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Writing: Canada Protests the Google Book Settlement

IFf you’re a Canadian author or copyright holder, you might be interested in the following in regards to your published or future published works. Writer Katherine Gordon was on CBC and you can hear the interview here if you’re interested: www.cbc.ca/onthecoast/

Following is a letter put together by some Canadian authors and if you’re at all worried about Google trying to grab everything in regards to copyright, then you might want to get your name on these petitions.  

Fellow authors and copyright holders:

Many of you are already familiar with the Google Book Settlement, and its dangers for Canadian copyrights. For those of you who are not, we suggest you skim through a highly readable statement by the U.S. National Writers Union, which flatly opposes it.   http://www.nwubook.org/NWU-GBS2-FAQ.html

We are a group of concerned Canadian authors who would like to protest this settlement in as effective a way as possible.  Accordingly, we have written a protest letter, which we hope will gather names, including yours.  Then we intend to release the letter to the media, to politicians, and anywhere else that might conceivably have an effect.

A court in New York City will soon be deciding whether to approve or reject this settlement.  We hope the judge rejects it.

For those of you who have considered opting out, the deadline is January 28.  This is also the deadline for any submissions to the court.

We have very little time left to influence the debate.  If you would like to respond, please do so as quickly as you are able.

To add your name to this petition, please email your name to: dvbolt@aol.com

(Your email will NOT appear on the petition.)

JOIN OUR FACEBOOK PAGE:

http://www.facebook.com/group.php?gid=227930255753

LETTER IN PROTEST OF THE GOOGLE BOOK SETTLEMENT

The following Canadian authors and copyright holders wish to protest the Google Book Settlement.  Even in its revised form, it is an assault on international copyright law and has distorted class action law for the benefit of a predatory corporation.

New Zealand, Ireland, South Africa and India – all countries with English-language presses similar to Canada’s – have been exempted from the settlement because they protested vigorously against it.  We wish to protest just as loudly.  The Governments of France and Germany protested that illegal digitization of books amounted to theft of a cultural heritage.  We agree, and believe that Canada’s heritage of Cultural nationalism should be applied to the Google settlement.  All of Europe is now exempt, and so should Canada be.

We believe that Canadian Copyrights should be subject to Canadian courts, as well as to the Berne Convention.  We believe that Canadians should not lose control over their works because they fail to sign up in a registry in another country; and, further, that the opt-out (rather than the time-honoured opt-in) clause serves to co-opt many copyright holders who do not have the the time or inclination to study this complicated settlement.   Also, the deadline for opting out insults common sense and benefits only Google.

The director of the US Copyright Office has said “no factors have been demonstrated that would justify creating a system akin to a compulsory license for Google – and only Google – to digitize books for an indefinite period of time.”  She has called it “an end-run around copyright law”.  We agree.

The US Department of Justice sees no reason why Google should not negotiate with authors and publishers individually, just like anyone else who wants to purchase copyright licences.  We agree.

The Google Settlement was negotiated by the Authors Guild of the U.S.  But other U.S. groups — the National Writers Union, the American Society of  Journalists and Authors, the Science Fiction and Fantasy Writers — are all unequivocally opposed to it.  We do not accept that the Authors Guild speaks for us and join the above organizations in demanding that the settlement be rejected.

If  the settlement is not rejected, we see no reason to trust in the future.  The Google Corporation has behaved in an illegal and predatory fashion in the past and will likely go on behaving in this way.

We join with the writers’ and publishers’ groups, as well as with the foreign law courts and governments, who reject the settlement in its entirety.

Sarah Sheard

Kim Goldberg

Katherine Gordon

Mona Fertig

Patricia Robertson

MORE info:

http://blog.sarahsheard.com/2010/01/calling-canadian-writers-join-our-anti-google-petition/

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Google Book Settlement

The Google book settlement hits its deadline on May 5, 2009. Before this date, if you have ever written anything that was published in the US (or possibly distributed into the US) you will want to read the long and convoluted double speak of the settlement issues. You must choose to opt out, stay in and/or write and comment by this date. If you are an author, publisher or otherwise know someone in the business, then I encourage you to immediately go here and read all about this before you lose rights you didn’t know you were losing: http://www.googlebooksettlement.com/r/home

I first discovered some of my short stories, published in an anthology being displayed on the internet through Google. When I searched I could get all but one page of my story. If I searched from a different computer I could get the missing pages. I was shocked at the wholesale copying, with no authorization or signing of rights having been given for electronic rights. At that time I contacted the editor of the anthology and she told me that she was just as shocked.

As time rippled along, authors and publishers banded together and approached Google. The Book Settlement resulted. Now, if we back up a bit many of us will remember a time before Google but after DOS. The internet had search engines like Lycos and Yahoo and a few others. Then Google came along, big, better, the giant fish that swallowed the smaller fellows. Then Google did this cool thing, taking satellite images of the whole planet and Google Earth was born. You could zoom in on any part of the planet and look at it as it is. Then Google started driving up and down every street in every city, scanning in houses, street signs, corners, you name it. And people started getting a bit worried when they did a Google search and could see themselves in their yards or living rooms, or wherever.

And Google of course said, oh we blur the faces but people said they could identify people. And Google said, well if you let us know, we’ll remove the image.Google did the same with numerous books, scanning them in, popping them up on the internet even though people had not sold or authorized digital rights. My vanity search today shows that those titles in which my stories were almost completely visible are no longer up (while the settlement is being settled at least). The settlement is long, full of legalese and double takes to the point that I think only a copyright lawyer might follow it completely. In the long run, Google argues, this will be a good thing for authors where they will get 63% (of sales from these visible scans), that no more than 20% of a book will be visible, that libraries can have digitized copies, etc. And probably it will be a good thing.

However, within all that mire that I’m still wading through and trying to figure out before I write my letter of comment, there are provisions for Google to have more rights to your work should it not be in print. Even when a person’s book is no longer in print, that person still holds the copyright on their work but Google somehow thinks they will then have the right to digitize it. There are other such caveats that already have my head spinning.

Strangely this gives Google the right (in their minds) to scan, copy and digitize anything anyone sees and only if you complain or notice will they remove it. Can anyone say, Big Brother is Watching? We have a right to some privacy whether we’re doing anything bad or not, but because Google shoots first and ask questions later (or does as they please and waits to see if a lawsuit ensues) they’re getting far more by just taking. I find this hugely disturbing with ramifications that people haven’t seen yet. The biggest problem is devil or the deep blue sea of the settlement: if you opt out, you can sue Google or complain about the books they’re scanning in but they may still do it anyway. If you opt in, you can’t sue Google and they will scan your books. There are areas where you can ask them not to display your book (or your story in an anthology) should they scan it but there are so many exceptions I’m not sure it doesn’t mean they can do what they want no matter what.

Actually a problem even bigger than this is : why does Google get this settlement worked out that gives them a whole helluva lot of rights over written works? Why only Google? Why doesn’t the settlement mention other possible publishers, authors and digitizers of media? Because people were suing Google. But…this now sets up a precedent of exclusivity and I worry that in the future should I want to digitize my own book that I may need Google’s permission. Or that any out of print and public domain book (think Shakespeare, Hans Christian Andersen, Greek myths, fairy tales, etc.) will now only be exclusively digitized by Google. This large Chthulhian entity with many limbs of legality and money in its maw could swallow everything including our rights, our privacy and our ability to differentiation. And when it gets right down to it, I smell monopoly and that worries me a lot.

On the SF Canada writers list we discussed this quite a bit. Cory Doctorow, http://craphound.com/writer and co-editor of Boing Boing http://boingboing.net/ was very involved in the discussion. Someone finally asked him what he thought about the Google Book Settlement. He and I are pretty much on the same page. As Cory is more knowledgeable of the intricacies in the settlement and Google I asked if I could put his response here:

I think it missed the real point, which is competition. The risk to writers is that Google might end up having a disproportionate control over the distribution channel. The risk arises from Google ending up with exclusive rights to material, and from the cost of entry to its competitors.

The publishers had leverage to fix both of these, by saying:

* We will offer a feed of all our books in digital form to every search company or tool that wants to index them (much like the machine-readable digital feeds coming out of change.gov and the Obama administration)

* However, NO company may have this feed, UNLESS they agree that any public domain works they scan will be freely downloadable by their competitors. Right now, Google’s arrangement with the libraries and collections they’re scanning involves exclusive access to the public domain works in their collection (many of these are very rare). This means that GOOG might end up the sole holder of a collection encompassing millions of PD works, which enshrines a permanent advantage to Google through contract terms restricting otherwise free media, which will prevent their competitors from having a level playing field.

Contrast this with the existing settlement, which basically says:

1. Google can go on treating the public domain as private property

2. Anyone who wants to compete with Google should be prepared to spend millions in legal action with the publishers, so only the richest, least lawsuit-adverse competitors need apply

Google was able to completely change the Internet’s ecosystem and destroy several extremely well-capitalized competitors from a standing start — literally two guys in a garage — because the cost of entry was low and because there was nothing about the web that Altavista, Yahoo, etc. could index that Google couldn’t index as well.

The competitive market for search produced an amazing, world-changing array of services and tools that have given us all a better life.

Now, Google is trying to enshrine its victory by changing the search landscape, creating a web of contracts and legal settlements that will permanently prevent competitors from competing with it head on. They tried it (and failed) with Google Video. They tried it (and succeeded) with YouTube, through their settlements and exclusive content deals with video companies. They tried it (and succeeded) with their Google Print settlement.

Writers’ best future comes from having a fractured, competitive market for search, distribution, publication, discovery — all the services that comprise the channel through which our audiences discover, consume and publicize our material.

The best way to get that is to *reduce* the cost of entry for competitors, which means that the cost of entry *cannot* include 20 million dollars in legal fees and twenty billion dollars in potential liability.

If the price of admission is a staff of high-powered attorneys and the capital to face massive liability, expect a future characterized by a few gigantic media oligarchs to whom we must go, hat in hand, to beg for crumbs.

Cory

***

THE SETTLEMENT NOTICE I RECEIVED:

You are receiving this notice because our records indicate you are an author or author’s heir or successor, and your legal rights in the United States may therefore be affected by the settlement of a class action lawsuit in the United States regarding Google’s scanning of books and other writings.

 A summary of the Google Book Search settlement appears at the end of this email.

 Detailed information about the settlement is available at http://www.googlebooksettlement.com.  Please read the full Notice, which has detailed information about the settlement, important terms, the claims process, and key dates.  It is available at http://www.googlebooksettlement.com/notice.html. These documents and assistance with the claims process are also available from the Settlement Administrator by email (booksettlement_en@rustconsulting.com) or telephone.

 If you have questions about the settlement, please visit http://www.googlebooksettlement.com or email the Settlement Administrator at booksettlement_en@rustconsulting.com.  If you have questions about distributing the Notice or about the ongoing program to notify class members worldwide about this settlement, please contact the Notice Provider at GoogleSettlement@kinsella-novak.com.

 Sincerely,
Google Book Search Settlement Administrator
booksettlement_en@rustconsulting.com

Legal Notice

Persons Outside the United States: This settlement may affect you because it covers U.S. copyright interests in books published outside the United States. If you hold such an interest in a book or other material in a book, this settlement will bind you unless you timely opt out.
——————————————————————————–

If You Are a Book Author, Book Publisher or Other Person Who Owns a Copyright in a Book or Other Writing, Your rights may be affected by a class action settlement regarding Google’s scanning and use of Books and other writings.

Authors and publishers filed a class action lawsuit, claiming Google violated the copyrights of authors, publishers and other copyright holders (“Rightsholders”) by scanning in-copyright Books and Inserts, and displaying excerpts, without permission. Google denies the claims. The parties have agreed to a settlement. This summary provides basic information about the settlement. “Books” and “Inserts” are described below.

What Does the Settlement Provide?

The settlement, if Court-approved, will authorize Google to scan in-copyright Books and Inserts in the United States, and maintain an electronic database of Books. For out-of-print Books and, if permitted by Rightsholders of in-print Books, Google will be able to sell access to individual Books and institutional subscriptions to the database, place advertisements on any page dedicated to a Book, and make other commercial uses of Books. At any time, Rightsholders can change instructions to Google regarding any of those uses. Through a Book Rights Registry (“Registry”) established by the settlement, Google will pay Rightsholders 63% of all revenues from these uses.

Google also will pay $34.5 million to establish and fund the initial operations of the Registry and for notice and settlement administration costs, and at least $45 million for cash payments to Rightsholders of Books and Inserts that Google scans prior to the deadline for opting out of the settlement.

Who Is Included?

The settlement class includes all persons worldwide who own a U.S. copyright interest in any Book or Insert. The meaning of “U.S. copyright interest” is broad. Wherever you are located, please read the full Notice to determine whether you are included in the settlement.

There are two Sub-Classes:

The “Author Sub-Class” (authors of Books and other writings, and their heirs, successors and assigns), and
The “Publisher Sub-Class” (publishers of Books and periodicals, and their successors and assigns).
What Material Is Covered?

“Books” include in-copyright written works, such as novels, textbooks, dissertations, and other writings, that were published or distributed in hard copy format on or before January 5, 2009. U.S. works must be registered with the U.S. Copyright Office to be included in the settlement. “Books” do not include periodicals, personal papers, sheet music, and public domain or government works.

“Inserts” include any text and other material, such as forewords, essays, poems, quotations, letters, song lyrics, children’s Book illustrations, sheet music, charts, and graphs, if independently protected by U.S. copyright, contained in a Book, a government work or a public domain book published on or before January 5, 2009 and, if U.S. works, registered (alone or as part of another work) with the U.S. Copyright Office. Inserts do not include pictorial content (except for children’s Book illustrations), or any public domain or government works.

The Notice contains a more detailed description of these terms and other essential information about the settlement.

What Should I do?

Please read the full Notice, which is available at http://www.googlebooksettlement.com. Decide whether you should:

  • Remain in the settlement. If you do so, you will be bound by the Court’s rulings, including a release of your claims against Google.
  • Object to or comment on the settlement. You must object/comment in writing by May 5, 2009.
  • Opt out of the settlement and keep your right to sue Google individually. You must opt out in writing by May 5, 2009.
  • File a claim for a cash payment (if you are eligible to do so). You must file your claim by January 5, 2010.


The Court has appointed Class Counsel to represent the two Sub-Classes. If the settlement is approved, Class Counsel for the Author Sub-Class will request attorneys’ fees and expenses that Google has agreed to pay. You can also hire your own attorney at your own cost.

The Court will determine whether to approve the settlement at a Fairness Hearing on June 11, 2009 at 1:00 p.m.

Get Complete Information, Including the Full Notice:

Visit: http://www.googlebooksettlement.com
Call: Toll-Free 1.888.356.0248
Write: Google Book Search Settlement Administrator, c/o Rust Consulting
P.O. Box 9364, Minneapolis, MN 55440-9364 United States of America

 This message (including any attachments) may contain confidential or otherwise privileged information and is intended only for the individual(s) to which it is addressed. If you are not the named addressee you should not disseminate, distribute or copy this e-mail. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. E-mail transmission cannot be guaranteed to be secured or error-free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete, or contain viruses. The sender therefore does not accept liability for any errors or omissions in the contents of this message or that arise as a result of e-mail transmission. If verification is required please request a hard-copy version from the sender.
Rust Consulting, Inc.
www.rustconsulting.com

(Note that since I was the intended addressee I seem to be able to disseminate this and there is no reason to hide it.)

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Writers Losing Rights

This is of concern to all writers in Canada, and really elsewhere though the issue of moral rights is called differently in other countries. Following is a letter I drafted and sent to various organizations (PWAC, Canadian Authors Association, League of Canadian Poets, Canadian Writers Union, Writers Guild of Canada, Canadian Poetry Association). If you are a writer in Canada and want to maintain the integrity of your piece and the right to have your name attributed to it, then you should be very concerned with CBC’s rules in their contest and the taking of moral rights. If you are part of a writer’s organization, please voice your concerns to your executive.

Dear members of the writing community;

 

CBC has long supported the arts with various programs including contests. Last year I noticed a contest for a poem on Mark Forsyth’s BC Almanac (Radio One). But when I read the rules and regulations CBC asked for all rights, including moral rights. I thought and hoped that this might just be an error, not to be repeated.

 

However, this year, CBC has been advertising Canada Writes, geared specifically towards writers. The full rules and regulations can be found at: http://www.cbc.ca/canadawrites/rules.html. The paragraph that concerned me was found under 4. Registration:

 

Entry forms become the property of CBC, free of any compensation or charges, and will not be returned to contestants. All submissions must be original and not infringe copyright or the rights of any other party, individual or otherwise, including but not limited to any person, group, entity, or company. By entering the contest, each participant shall waive any and all moral rightsover his/her entry and grant CBC an irrevocable licence to use of the work on-air or online: the entries may be read and aired on CBC Radio One in whole or in part, or online, on any websites or platforms related to the CBC, without any compensation being payable to the participant.

 

While it is not uncommon for some contests to ask for all publishing rights in return for a contest prize, it is highly unusual to ask for moral rights. Any reputable publisher will not ask for such rights and CBC taking this precedent is dangerous. The issue of rights is a complicated and often confusing one. I am no copyright lawyer but as a writer and artist I am concerned with this requirement by CBC. Below is a definition of moral rights:

 

http://www.nolo.com/definition.cfm/Term/D4718204-9904-42DF-8A5C84A64827173D/alpha/M/

In copyright law, rights guaranteed authors by the Berne Convention that are considered personal to the author and that cannot therefore be bought, sold or transferred. Moral rights include the right to proclaim authorship of a work, disclaim authorship of a work and object to any modification or use of the work that would be injurious to the author’s reputation.

 

This is of such concern to me that I cannot conscionably sit back as either a writer or as the president of SF Canada without bringing it to people’s attention. On January 19, I emailed CBC expressing my concerns. I heard nothing. Again I wrote on January 30, asking for a response and should I not receive one by February 6 I would contact as many Canadian writers’ organizations as possible. (If you would like to see a copy of those letters, please contact me and I will send them.)

 

If we ignore this, we set up a precedent for artists losing moral rights, where their works can be altered or attributed to someone else at the whim of the owner. If your organization has already been in contact with CBC and has any news on this issue, I would be interested in hearing what is happening.

 

Over the years, in various ways writers’ works and rights have been jeopardized. With a united voice I believe we can stop this trend and educate people before it becomes entrenched. I must say on a personal level that I am shocked and saddened that CBC would stoop to this level and I sincerely hope it is just the work of overzealous lawyers and can be circumvented.

 

I look forward to talking more with you and finding a solution.

 

Regards,

 

 

Colleen Anderson

President

SF Canada

 

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Writing: A Fable–The Demon

Once upon a time there was a person much like you and me who came upon puberty and began to write feelings and thoughts upon paper. This person loved words and reading and loved to imagine and create things.

Eventually the person decided that maybe it would be good to share these words and ideas with others, to show them the ways of this person’s expression. After all art is part for viewing and part for showing. The first creations were poems but the person found that the words lacked and although thoughts and feelings had been expressed, they didn’t connect with other people.

The person decided to get advice and seek courses so that a common language could be found, while still keeping a unique mixture of words, thoughts and images. There was a need to show others the visions. It was a scary time, for the person did not know what others would think of these fledgling designs. Would the person be pulled down or ridiculed for such pretensions? This new writer had seen one person changed into a demon when other writers and readers had read about the terrible character in his story. Those writers and readers took the skin of that story character and pulled it over the writer of the story. It was very hard for him to shed it and say, I am not that person.

The writer had not yet built up the thickened skin that comes from critiquing and dissection. But the writer went on to write a couple more stories, perhaps four in all. They were all raw constructs, crawling out upon the land with their newborn descriptions. Sometimes they had more limbs than were needed or lacked eyes, such was the new writer’s unformed talent. Two stories were tried in one class and then the writer felt emboldened to move into an acolyte’s workshop, sending off two stories, for no one entered the hallowed halls of the workshop without first being judged on merit.

Some merit must have been discovered, for the writer joined others in the apprenticeship of their craft. After completing the rigorous conditioning the writer learned how much there was still to learn and that it would take a  lifetime to be perfect or become a god of writing. The writer was invited into a small enclave, where mages of imagination met and discussed the secret ways of writing, delving into the mysteries of words and how to make their words more powerful.

Here, the writer in innocence brought a story from that time before the workshop, when only a few stories had been painstakingly born. A  few stories were still wriggling infants, not yet shaped into gods or monsters. The other word magicians looked upon the work and saw where the incantations would not evoke the right responses.

However, there was one who looked upon the work and said, You have taken my words. The writer was confused because their stories were very different, and professed to having written the piece before even knowing the other wordsmith existed. Yet the other wordsmith proclaimed that the writer should be careful where one took their ideas from for people weaving had become sacred in the wordsmith’s story and the writer had used creatures weaving. The writer had written the story before meeting the enclave or reading the other’s story but suspicions were laid, of black arts used to gleaned the weaving idea.

The venerated wordsmith left the secret enclave since the other word magicians would not oust the new writer.  However the wordsmith was part of another group that gave displays of their skills in hopes that rich people would notice their wordfame and remember their names. From that group, the wordsmith pulled out the demon skin and waved it about, then threw it toward the new writer.

Although the new writer ducked, seeing some dark cloud descending, the demon skin stuck to the writer’s flesh. Not everyone believed the wordsmith’s words but the stigma remained on the new writer. Like a scarlet letter, others would wonder what it meant and really, could that new writer be trusted? Surely there must be some truth to the wordsmith’s allegations. And the writer, whether innocent or not, would always now stand out as “that one.”

The writer, who was just a person, did not understand. The brand did indeed burn though the demon skin was invisible and the new writer felt like everyone else. The other group never allowed the new writer in, stating that the wordsmith’s words and opinion were powerful. All other writers in the region could join but not the one new writer. The group was not rich nor powerful except in exclusion but that exclusion had done the job.

The writer, now a partial demon, had been wounded by these actions. Having always been a champion of copyright and protecting the artist’s right, and having enough ego as any artist, the writer believed in creating unique worlds, not copying someone else’s. But it was as if the one scouring agent, rare and expensive, that could clean the partial demon from the writer’s flesh and soul, was kept hidden away.

Though some wordsmiths supported the writer-demon in private, no one stood up to the wordsmith who had thrown the demon skin. The person who was a writer, who wasn’t a demon but had some of the skin of a demon would never be free of that taint. Ostracized for a crime not committed, that  person’s soul was marked with the knowledge that people saw the person as false.

The demon-writer could always feel the skin, no matter how small the patch and spent the rest of the long years of writing, trying to do what was right, trying to champion the arts or at least not go against any enclave. In one short burst the demon-writer tried to retaliate in long festering hurt, and barred the writer from one reading. But it was not the demon-writer’s true way. No matter what happened this writer who was really just a person felt different and felt that the other wordsmiths always saw it that way, and that the rift in the writers’ enclaves would never be healed. Just like those early days of trying to share words and thoughts, the demon-writer found that people didn’t see things the same way.

But it would not be the end of the demon-writer’s travails for others held skins and waited.

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Writing: Rights & Contracts

I decided to withdraw my poem from being published in the online magazine Sotto Voce. Often one is paid little to have a poem published. I’ve received everything from $5-$100 for poetry. Of course, I would like to get more rather than less but I’ll sell a poem for $10 if the magazine looks respectable. What I won’t do though, is give my poem away for free.

Likewise, I do read contracts and do take them seriously. Sotto Voce stated they had exclusive rights to put the poem on their website for 120 days. Okay, not a big problem and fairly standard. They also said that at the end of that period all rights revert to the author, but then went on to say they took the nonexclusive right to keep the poem in their archives, as well as using it in a print, audio or other format, should they so choose.

Keeping something in a magazine’s archive is becoming more standard and some magazines will take it down should you resell the piece. Others may not. I could live with that but the nonexclusive rights on print, audio and other were bothersome. Most publishers may ask for the nonexclusive right, which often means first refusal on a print anthology (or whatever they specify) but they will at that time negotiate to pay for that right. Some magazines may say, we take print and anthology rights.

Their use of having an open-ended nonexclusive right in which they informed me that they would not pay additionally bothered me. It also meant that should I try to sell the poem to a print magazine I could jeopardize that sale because it might have been printed already. Given the vagueness of their all-encompassing, nonexclusive rights, I wasn’t sure that I would be notified if they used it elsewise.

Normally, each right is a separate thing: world rights, first North American rights, electronic rights, audio rights, print rights, etc. It’s a hodgepodge and can be very confusing and many publishers will try to lump it all together to get as much as they can for the price of one. I usually ask if I’m not clear, and contracts are often weird legalese. Since I neither needed the modest pay nor the publishing credit (though it’s always nice to have more) and because I was uncomfortable with this contract and didn’t like the exclusive nonexclusive rights they seemed to be taking, I said no after consulting with other writers (just in case I was getting overly picky).

Often contracts can be adjusted. When I receive a written contract I will sometimes write in or cross off something. So far no one has said no to those changes. There is leeway in most cases. Sotto Voce didn’t seem to want to do this and their contract was online with places just to fill out. Not much room for adjusting it. If they had paid more I might have gone with selling the poem to them. But not for peanuts.

Harlequin also had a fairly specific contract that asks for all rights (print, online, audio, ads, etc.) for a period of time. However, they are paying a whole lot more and the contract has a clause that should they go to other formats or languages, reprint, digital, etc. that those fees will be negotiated. I asked the editor about some parts of that contract but decided to go with it, although Harlequin doesn’t specify how long they keep those rights before releasing them. That bothers me and in retrospect I maybe should have put a limit. It might not be too late.

Contracts really do take experts and the wording is often vague or misleading. There are lawyers that specialize in such but we little writers don’t tend to go that route for small sales. There are agents who also specialize in understanding contracts and if you’re selling a book, they can help with the nuances of the rights. As well, many small publishers don’t always realize what they’re asking for and sometimes need educating. In the past I’ve had to mention this to a few new publishers. In the end, it’s up to each person as to what they’re comfortable with selling or giving away. And to me, it’s not about the money so much, but about respecting the writer and the writing.

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Writing: Things to Watch Out For

Below is listed an ad, which was reposted to a writer’s list I’m on. Markets like this disturb me for several reasons. Albeit many short story markets only pay about $100 these days (some pay more and some less), but to actually pay only $100 for a 30,000 word story amounts to highway robbery on the publisher’s part. One cent a word for that length would equal $300. You do the math on just how little you’re getting paid. Of course, if you write the low end 1,500 word story you’ll get about .07 a word.

Article writers get paid on average between .75 and $1.25 a word. SFWA says that professional rates for speculative fiction should be at least .05 a word. That would be $1,500. Now I’ve sometimes sent my stories to places that pay .03 cents or so. I’m still a fairly no name writer and there are many many writers out there. But there comes a point when you have to figure out what you’ll prostitute yourself for, and I won’t sell myself as cheap as below.

That low payment could fall into acceptable but what really gets me is that this publisher is asking for all rights. I don’t know if this includes moral rights and I’ve talked about how that is the last right anyone should ever give up, but even so, they want all rights. For $100. Wow. That’s not just first anthology rights or first electronic print rights, or first North American rights. That’s all rights. Which means you can never sell your story again, never get more money to make up for the measly hundred bucks these guys gave you to steal all your rights. You pretty much don’t own your story anymore.

If you work for a company and write on their dime, they in essence own all rights. However you still have moral rights in that you are credited with the work, unless you sign those away. Considering the big grab that these guys are doing, I wouldn’t put it past them to take moral rights too. And all rights means that they could turn your piece into a film and you wouldn’t get a penny, or they could hack it up to read like drek and you’d have no say.

Now sometimes these things are worded badly because new publishers don’t understand which rights they should ask for. But I find that the statements about “if you’re a new writer” tell me they know pros will not submit to such a place. As well, they do warn you that if you aren’t happy with all rights being taken, then don’t submit. There are other huge media magazines that buy all rights. The Cricket (Carus publishing) and related childrens’ magazines are one. However, they tend to pay more and I don’t really submit to them either.

The problem with all of this is that you get magazines and publishers who often say, we can’t pay you anything. We do it for love and you have the privilege of getting your work published. However, the flip side is that they have the privilege of publishing your work and without writers they would have no magazine. If they find writing of worth, then they should pay what they think it’s worth. I think it’s okay for a new magazine to start small, not pay much but aspire to hoping to pay more for stories as they grow. I understand that people want to put out magazines and with the internet it’s much easier, but everyone who can should be paying for the work. I too want to start a magazine one day but I won’t do it until I know I can pay at least .03 a word to start. I don’t want to dishonor writers, of which I’m one.

Writers are always the last to be paid, the ones that are often stinted in how much they get as well. Opulence magazine for which I wrote some articles, did the same thing; ripping off their writers and not paying them for years while the fat cats at the helm got glossier cars and homes. I’ve written about Opulence elsewhere. Of course individual magazines have to either get grants or raise funds through subscriptions and advertising. Still, writers should not be the ones that get less because all the other costs are more.

Oh and Vincent Hobbes, the novelist? Well, it seems the only writing he has done has been published by Hobbes End (one book) and there is very little information on this publisher. So Vincent published his own work and made a company. That makes me doubly cautious. But each person has their own brain. It’s up to every writer just how little they think their work is worth. Of course, if I said each of my stories was worth a million bucks, and that’s all I’d accept, I’d still be waiting to publish my first piece.

Novelist Vincent Hobbes is seeking short stories for an upcoming project which will feature a compilation of strange and bizarre stories. His publisher is currently accepting submissions from any author interested in
having his or her work published in a novel.

Manuscripts being accepted will include anything from the following fiction genres:
Horror
Supernatural
Science-fiction
Fantasy
Psychological thriller
Mystery

Requirements: Word count may be anything from 1,500-30,000 words. We are seeking stories that are original and not previously published. Interesting storylines with a preferable twist at the end to captivate the reader is desired. Think Twilight Zone. All stories must be tasteful-not overly gory, no inappropriate sex scenes, or an over use of profanity.

All submissions must adhere to the following guidelines:
Single-spaced 12-point font, Times New Roman Cover sheet must be included with all proper contact information

Whether you are a new author seeking to promote yourself, or simply someone who wants your family and friends to read your story
in a published and widely distributed piece of literature, this is a rare opportunity to have your name and story published.

You may submit your story via mail or electronically. Details are as follows:

If mailed, send copy to:
Hobbes End Publishing, LLC

If sent electronically, send to:
publisher@hobbesendpublishing.com
Attn: Short Story Submission (subject line)

Deadline is October 1st, 2008

Terms: Full rights, both printing and media, will be purchased outright for $100.00 per story. Therefore, it will be un-publishable elsewhere without express permission from the publisher. Any author who does not agree to such terms, please do not submit your work for this project. Also, the best story will receive a bonus from the publisher.

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Moral Rights

On Sunday, Jim Gunn talked about an essay for an old SF collection and how one author wouldn’t sell his piece because he would have to waive moral rights. Jim seemed to think this was silly, to not sell a story over moral rights. Maybe he was talking about that particular case only, where the essay was written specifically for that anthology. Earlier last year, on my blogspot blog I wrote about CBC radio having a contest and taking all rights. Also checking out Radio One’s program “This I Believe” they said: By clicking on the “submit your essay” button below, you are transferring to CBC all rights, including copyright, in your essay and are waiving your moral rights in the essay. As owner of copyright CBC, and third parties authorized by CBC, will have the exclusive right to make unlimited use of all or part of the essay in any and all media in perpetuity worldwide.

CBC wasn’t paying for these pieces. “Fill our programming for us for free. After all, it is our national radio station.” By writing for CBC, you’re volunteering it to these programs. Yet, many artists donate or volunteer their works for a particular show or event or book. So what’s the difference between donating a piece, giving copyright for a specific time and waiving moral or all rights?

The owning of copyright is a complicated thing and there are lawyers and agents who specialize in the fine print. Basically, by transferring all rights it means that you can no longer use that piece of your writing in any way. You cannot send it to be published or shown anywhere else. You really can’t even ask permission since CBC now owns it completely. Take a person who sells a sculpture. Someone else owns the sculpture but the artist might still have prints or photos of the sculpture sold or put in books. In the case of writing, many writers make a living from reselling their pieces to different publications.

Although in most cases of publishing one sells specific rights (and often specific media rights such as electronic or print publication) for a limited time, there are cases where you sell all rights, which still does not include moral rights unless they say so. But should you sell a book to a publisher, the rights give that publisher the exclusive right to publish your book for a period of time, compensating you as is laid out in your contract. If you sell to a magazine, you are paid for the piece, by article, word count or column inches and can after a time, resell that piece to other publications. Greeting card companies do it as a matter of course because they want to own the slogan in perpetuity.

There are first world rights, English only rights, print only, first North American, electronic and a motley assortment of many other combinations, often with a nonexclusive right to put in a print anthology (if you sell a short story to a magazine), which only gives that publisher the first right to ask you if they can put it in but you have the right of refusal.

In most cases rights revert to authors as per the contract, and the majority of authors will not write something in which they do not retain rights. I have never sold anything where the rights did not revert to me. Exceptions are for anything you write while in the employ of a company. In that case, they own it but you can still get writing credit for it and have your moral rights.

Moral rights are the most important to keep and it’s shocking that CBC resorted to such tactics. Waiving moral rights means that a company/magazine/publisher can take your piece and alter it, making it unrecognizable, printing pieces out of context and otherwise changing your words, and you will have no recourse. If I was a painter and sold a painting of a house to someone and waived my moral rights, they could then paint in a dead dog and a person dismembering someone else and I could say nothing. I’m not sure but it’s possible moral rights might also mean your name is no longer attached to your work. In the above example you would probably be happy if they left your name off but anyone who takes your moral rights can destroy what you’ve created and say you made it.

Of all rights, moral rights are the most important and the most worrisome when a big corporation like CBC is asking for them. When moral rights go missing it’s immoral. Any artist, whether writer, painter or jeweler, as well as any person who appreciates any form of art should consider very carefully what it means when you sell all rights and waive your moral rights.

I, for one, could not morally let this happen. There is no reason that anyone would need moral rights if they’re above board. An awful lot of money would have to exchange hands for me to waive these rights. Whether you sell a story or a photograph, you have the right to keep your moral rights. http://en.wikipedia.org/wiki/Moral_right

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