A Cautionary tale of Copyright – be careful what you sign

The Ars Technica blog has posted a story about a dentist who was asking patients to sign a “mutual privacy agreement.” This sweeping agreement effectively means that for any blog comment, review post or letter to a local newspaper written by a customer, the copyright would be owned by the dentist. The dentist’s staff insisted the agreement was not to censor truthful comments about the dentist, but to give the practice a tool to remove fraudulent reviews, especially by non patients.

However, non patients, do not sign the contract so are not covered by it. Moreover US courts are unlikely to find that copyright has been validly transferred under the agreement. So the agreement is useless. Unless its purpose is to intimidate patients into being cautious about what they say about the dentist concerned, which raises interesting questions about the dentist patient relationship.

It could be that dentists (and other medical services) are using the agreement because they’ve been told it will solve any negative review problems without fully appreciating what the clause actually means – medical staff are not copyright experts.

In fact most people, including writers, are not copyright experts. A basic guide to English copyright law can be found here. But in any situation where you are asked to sign over copyright, tread carefully and ask the following questions:

• Do you understand exactly what you are being asked to sign? If not, don’t sign and seek clarification.
• If the person who asked you to sign can’t explain it or is reluctant to let you take the agreement away for legal advice, do not sign it. Any reasonable agreement would be clear, explainable and any organisation confident with the agreement would let you seek further advice before signing
• Never, ever sign anything if you are pressurised to sign there and then.
• Most magazines accept poems or stories on the basis of First British (or relevant country) Serial Rights, ie on the basis that they are publishing the story or poem for the first time in Britain (or the relevant country). Copyright remains with the writer. If the magazine does not specify this, you would be entitled to assume this.
• If a magazine asks for World Serial Rights, ask yourself if you consider this fair. Your response may depend on what payment is being offered (and it should be generous) as this could also cover web publication.
• If you are entering a writing competition, check the rules regarding copyright. Generally copyright is retained by the entrant but the competition organisers may reserve rights to use entries for publicity or to publish them in a website or in an anthology, these are perfectly acceptable.
• Any competition which seeks to retain copyright of all entrants is not acceptable. You are effectively signing over copyright of your work and paying for the privilege (by paying the competition entry fee) of not being able to use your own work anywhere else (even if you are unsuccessful in the competition).
• If you query the copyright clause with the organisers and are told that the clause is “not what they meant and copyright does remain with the entrant”, do not sign or enter the competition. If you sign or enter the competition where entry indicates acceptance of the competition rules, you have agreed to the unfair terms. If the rules do not reflect what the competition organiser intended, the rules should be changed to reflect intention. If something as basic as the rules of entry aren’t accurate, what does that say about the competition organisation?

Trying to restrict copyright is not an effective way of preventing negative reviews and provides no protection against fraudulent reviews, which are better dealt with as libel or defamation.

 

Copyright, Copyright Infringement and Plagiarism

Copyright protects writers from having their work used without permission. Under English law, it’s an automatic right and arises whenever a writer creates work. Therefore, there is no need to register work or stick copyright signs on blog articles.

If you write a poem, you automatically have copyright on that poem from the date of creation and if anyone else wishes to use that poem, they must ask your permission.

To summarise current English Law (not intended as legal advice and should not be read as such) as it relates to literary works:-

The Copyright, Designs and Patents Act 1988 gives creators of literary (and other) works rights to control the ways in which their material may be used, covering broadcast, public performance, copying and adapting among other rights.  In certain cases the author will also have the right to be identified as the author and to object to distortions of the original work.  A work must be regarded as original and exhibit a degree of labour, skill or judgement.  Copyright for literary works lasts from 70 years from the end of the calendar year in which the last remaining author dies (the Act makes separate allowance for work where the author is unknown).

To clarify, copyright applies to the independent creation of a literary work.  So if you write a poem about Autumn, your actual wording is protected by copyright, but the idea behind the poem is not protected.  So if another poet decides to write a poem about Autumn they can provided they do not directly copy or adapt your poem to write their own.  Names, titles, short phrases and colours are not protected, but a logo or trade mark may be.

None of the acts below are permitted without consent of the copyright owner:-

• Copying the work;
• Renting, lending or issuing copies of the work to the public;
• Performing, broadcasting or showing the work in public;
• Adapting the work.

The acts below are permitted – this list is not comprehensive:

• Copying for private and research study purposes;
• Performing, copying or lending for educational purposes;
• Criticism and news reporting;
• Incidental inclusion;
• Copying and lending by librarians;
• Recording for the purposes of listening to or viewing at a more convenient time (eg downloading a podcast to listen to later);

Plagiarism

Plagiarism is the wrongful appropriation, close imitation or purloining and publication of another writer’s work and representing that work as if the plagiarist was the owner.  Plagiarism is not a legal transgression but a moral one.  Good general advice is: if you didn’t write it, ask permission and at the very least credit the original author.

Copyright Infringements

One of the strengths of the internet – easily and widely available information and access to writers’ work – is also its weakness as it makes it easy for copyright infringement.  There is a tendency for people ignorant of copyright law to think that because something is in the public domain, it is free to copy.  It is not.

Therefore it’s recommended that writers guard against copyright infringement.  Use search engine and blog alerts to search for and alert to any potential copyright infringements. 

If you do find your work has been used, check:

• Does the use come under the ‘fair use’ provisions?  It is not copyright infringement for someone to quote from your work in order to write a review or piece of criticism (and definitely not copyright infringement if you don’t like the review/criticism).
• If your work has been used on a members’ only forum where members are invited, it may be regarded as private or research study purposes.  Before complaining of copyright infringement, contact one of the forum moderators and ask why your piece has been used and request that they take it down if you don’t feel your work should have appeared.
• Contact the site your work is on and ask the owner to remove it.
• If one of your blog articles has appeared on a scraper site and you can’t find a sensible contact email/address, contact the blog hosts.  WordPress, Live Journal and Microsoft blogging platforms all have contact forms for removal of copyrighted material.
• Use Google’s DCMA form.
• Wait for a response before complaining to your social network that you have suffered a copyright infringement.  Not all acts of infringement are deliberate, and although ignorance of the law is not a defence, mistakes do happen.  So do allow a site or blog owner chance to respond.

If you want to use someone else’s work (or part-work):

• Ask – if you can’t find an author’s contact on their blog or website, go via their publisher;
• Crediting the writer isn’t enough.  It might stop you being accused of plagiarism, but if you didn’t have permission, it’s still copyright infringement.
• If you don’t get permission, don’t use it;
• Copying may cost very little (frequently only the time taken in using copy and paste functions), but creating the original piece took time and research and, if the original author hadn’t invested that time and research, the original would not exist.  Stealing an author’s opportunity to earn money from their own work is stealing and may even prevent the author from being able to publish some future work as book publishing contracts very often depend on sales from previous books and if the sales aren’t there because the book was illegally copied and downloaded, then the author will really struggle to get another deal.
• Do not be tempted to breach copyright. 

Most writers, especially poets, earn very little from publishing their work, but that doesn’t excuse you from using poems without permission.  Ignorance of the law is no defence.

Why J K Rowling’s Harry Potter Lexicon Lawsuit Win is Good News

Steven Vander Ark planned to publish a Harry Potter Lexicon that infringed the copyright of J K Rowling’s Harry Potter novels and companion books “Quidditch through the Ages” and “Fantastic Beasts and where to find them” also written by J K Rowling. Judge Robert Patterson has banned the publication of the lexicon and awarded J K Rowling damages. This is good news because:

1. It does not stop anyone writing or publishing a guide to fictional works – the court differentiated between work that merely broke copyright and work that was transformative, eg provided a new insight to the original works.

2. It does not stop anyone making fair use of copyrighted original works – the court made the point that fair use was not just about the amount of material copied from the original but also the nature of use – the lexicon was not transformative because there were significant amounts of verbatim copying.

3. It does not stop collections of critical essays or literary criticism that make fair use of copyrighted original works, because the essays and criticism are transformative.

4. It does not stop fanfic (fan fiction) – the court took into account that the lexicon was a commercial venture and, although unlikely to impact on the sales of the Harry Potter novels, it would impact on the sales of J K Rowling’s companion books. The commercial intentions behind the lexicon weighed against it. Fanfic that credits the original, is a not for profit venture and is transformative – eg a prequel, sequel, parallel universe or uses original characters – is not banned.

Related articles:

Should Writers Get Paid?

Ghostwriting

Long Live Fanfiction

Writing Mothers