Lawsuit filed against Naughty Nights Press

Naughty Nights Press has been sued in the St. Louis County, Missouri Circuit Court.  Cohen v. Naughty Nights Press, Cause No. 12SL-AC40683.  NNP was served by International Registered Mail on December 24, 2012.  Under Missouri law, service will be completed on or before December 29, 2012.  

The lawsuit includes six counts: two counts of fraud in inducement based on the publisher offering contracts that it knew it couldn't fulfill; two counts of declaratory judgment seeking declarations of author's rights; and two counts of tortious interference with business expectancies for NNP's interference with the author's publishing listings on Amazon.

Track & Confirm e-mail update information provided by the U.S. Postal Service.

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CHALLENGING ONESELF AS A WRITER: KEEPING THE SEX SCENE REAL

A recent lead story in the evening news was about a local deputy who is accused of taking sexual liberties with female prisoners. As news stories go, this one was pretty salacious. Of course, there was no actual recounting of the sex. Given the same factual scenario in a work of fiction, the setting was great for writing some serious “Prison Sex" encounters.

As a fiction writer, I have a luxury that news reporters don’t have (or at least shouldn't have). My characters can do anything I want them to, any time, any place, any way. But as any Spiderman fan knows, “With great power comes great responsibility.”  It isn’t enough to place a sex scene in an unusual setting.  There is more to a sex scene than merely making the female and male parts fit together. The scene still has to be believable within the context of the work.

When it comes to writing a sex scene, I have a basic checklist:

A) Set up: is there enough background to support the scene?

Tom dropped the letters into the mailbox slot. He flipped the door several times to make sure that all of the letters fell into the box. Mary, a tall, buxom business woman waiting to deposit her letter tapped her foot impatiently. He turned to her, “Is there a problem?”  Their eyes met, the untamed fire in hers immediately lighting a fire in his groin. He ripped open her blouse as she unfastened his belt.

This scenario doesn’t seem likely even for a hand-held camera, 8mm black and white porno. There needs to be a believable build up, however unlikely the setting. Part, or even a substantial portion, of the build up can occur offstage in indirect action. But the buildup is still necessary. The more improbable the setting, the greater the need for a solid foundation for a sex scene. Even if the scene is just casual sex for the sake of having sex, the characters still need to connect in a believable manner. If the reader remains skeptical that the characters are about to have sex in the scene, then the scene will fail.

B) Foreplay: is there enough?

Bill hit “play”, and set the remote on the arm of the black, leather couch. He put his arm around Suzy, who snuggled closer. She turned her head, and opened her mouth for a kiss. His tongue met hers as he rucked up her skirt. He drove into her powerfully, as relentless as a force of nature.

This is a bit thin on details. The reader is probably going to need a bit more information on their feelings and reactions to tactile stimulation before reaching the “force of nature” bit.

C) Temporal consistency and mechanics: does the sex scene work from technical point of view?

One problem that I’ve found in sex scenes that I’ve edited is that the mechanics of the scene are off. In one memorable scene, the couple is coupling fiercely. Two paragraphs later, she unzips his slacks and takes his cock out. Being old fashioned, I suggested that the paragraphs needed to be reversed. In another scene, the man held her breast in one hand and fingered her dripping pussy with the other. She moaned as he pulled her hair. My question as the editor was, pulled her hair with what? His teeth?

D) Originality: 1) what makes this scene different from the other sex scenes in the book?

Chapter Three: Mary slowly did a scissors split,  impaling herself, as she slid down Tom’s long, thick rod until she was filled.

Chapter Seven: Suzy swung her legs out of the pike position, and flipped one leg over each of the parallel bars. She spread her legs until they were straight out at her sides in a perfect split. Bill reached around her and grabbed her breasts as he slid his long, hard shaft into her until she was filled.

Been there, done that. Yes, Mary was in the bedroom, and Suzy was in the gym. But the novelty of a woman doing the splits wore off after the first time. One of the splits has to go. If the reader really likes the splits scene, then s(he) can reread Chapter Three. Chapter Seven needs to give the reader something new.

2) Word choices?

How many times do the same words or variations on a root word repeat?  Using “throb”or “throbbed” in every sex scene will bore the reader at best, or at worst, produce a throbbing headache. Find some new adjectives.  If in Chapter Three, Mary “slid” until “she was filled”, then in Chapter Seven, Tom’s actions need to be something other than “slid” until “she was filled”.  I would need to find a new verb for “slid”, and a new adjective for “filled”.

In Earth Angel, there was a brief stand alone sex scene that my editor wanted to cut because she didn’t think it added anything. I disagreed because I wanted to change the pace at that point, and work on character development rather than plot development. The scene stayed after we discussed its purpose. But to make sure the scene added something, I still had to make sure that it fit within the internal logic of the overall story, and didn’t merely rehash stock footage from a prior sex scene.  

CK Copyright 11/7/11; Moral rights to be identified as the author of the foregoing article asserted worldwide (including in Great Britain in accordance with Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988) (See prior blog on Moral Rights).     

Mind, Groin, or Both. Inserting the Sex Scene

Okay, you've gone to great pains to develop your _____ (insert characters). Enough with the damn plot development. It's time for a sex scene. It's also decision time. What is the purpose of the scene? Is the sex supposed to cement the characters' relationship? Is it a casual release? Is it the breaking point? The purpose of the scene often dictates the best approach to its portrayal.

In Earth Angel, I wanted the sex scenes to further the characters' relationships. Prince Dzhok (who goes by Jack) is a Qpiad (often misspelled as "cupid" in Earthside English). "Make love, not war" is central to his persona. He makes loves often, with over 1,980 offspring. The Qpiad are human appearing humanoids with one significant distinguishing ability. They are always a perfect sexual fit for their partners, regardless of size, species, or color. Jack takes his lovemaking very seriously, and is an All-Realms master of the simultaneous orgasm. Accordingly, with Jack, it was important to focus on his techniques.

Salash, Jack's oldest friend and lover, the mother of 22 of his children, is a full blooded High Sidhe. The High Sidhe are extremely flexible. When an Earthside gymnast scores a "10", the judges should always check for High Sidhe blood. With Salash, I needed to show her flexibility.

Having identified the purpose of the sex scene, the next decision is the lexicon. The mechanics of any sex scene, whether M-F, F-F, or M-M are going to be pretty much the same. Tactile stimulation is followed by some form of penetration in one or more orifices. But the word choices one uses to describe the process are the key. Identify your target, the mind, the groin, or both, and attack.

The Mind: In one sense this is both the easiest and the hardest target. The more that is left to the imagination, the greater the attack on the mind. "He undid another button, then kicked the door shut....Mary woke the next morning..." In this case, the sex is entirely inferential, and may be as hot and kinky or as quick and vanilla as the reader chooses. However, if you truly wish to engage the reader's mind, then be prepared to show the reader everything that happened once the door closed. Describe the mounting sensations, the distended time, and the cataclysmic finale. Focus on anything and everything except the actual physical act, except as may be necessary to describe the next round of sensations. Use metaphors and similes rather than descriptions of the physical act.

  

The Groin: This is probably the easiest approach. Just call it like you see it. Describe the participants' physical attributes in as much detail as you desire, then focus on the mechanics. Be sure to add telling sound effects.

Both: This one is a bit trickier. You need to handle this like a sports broadcast. Part of you needs to write the play by play, while another part provides the "color".

That said, here's a quickie from Earth Angel:

As Salash climbed back onto the bed, Jack flipped over on top of Brunhilde, and slowly guided himself inside her. Although Brunhilde stood a full head taller than Jack, he had no trouble filling her, much to her pleasant surprise. In fact, she remarked that next to Thor, he was probably the largest she had ever had, and she never would have guessed from looking him over just before he got into the bath.

He did not take offense at the comparison. He knew he could be larger than Thor if he so chose. He preferred his current size, which was a custom fit to Brunhilde's hot, wet passage. Salash placed her hands on either side of Brunhilde's head, then pressed herself up into a handstand with her legs straight and together. She then slowly bent at the waist into an inverted pike position until she formed a perfect inverted “L”, with her legs parallel to Brunhilde's body, extending just slightly over Jack's head. Whenever a human gymnast scores a perfect “10”, the officials should always check for Sidhe blood―but they never do. Salash opened her legs, extended her tongue, and slowly bent her arms until her legs rested on Jack's shoulders.

Brunhilde had time for a quick “Showoff!” before Salash's tongue was in her mouth. Jack leaned forward and began tonguing Salash, while vigorously pumping Brunhilde until they all came simultaneously. Let Thor try to pull that one off!

*********************************

EARTH ANGEL By CHARLIE KENMORE

charliekenmore@gmail.com

http://charliekenmore.blogspot.com/

Blurb: There are seven parallel worlds known as the Seven Realms which are separated by a Veil. Six are inhabited by all manner of entities, some natural, some not. That may not be the case for much longer. The first portion of the High Sidhe Prophecy of the Sevens has been fulfilled. The Anarch, who is one with the Veil, has escaped. If she chooses, she can part or drop the Veil or she can lift the Veil in its entirety. The Seven Realms will converge. The laws of physics and magic will collide head on. Unless she is stopped,there will be nothing left.

Queen Amura has called for an assembly of the signatories to the High Sidhe's Second Accords, a multi-realm peace treaty to consider how to deal with the threat of the Anarch. An Earthside TechnoWitch and other dark forces also are  seeking to control the Anarch. Prince Dzhok (Jack), High Sidhe Ambassador Salash (Jack's oldest friendand lover), and Valkyrie Brunhilde set out to find and befriend the Anarch before all is lost.

Purchase Links: http://www.damnationbooks.com/book.php?isbn=9781615724840  (you have toregister-free)

http://www.amazon.com/Earth-Angel-ebook/dp/B005KMQAA2/ref=sr_1_1?s=books&ie=UTF8&qid=1315450669&sr=1-1

http://www.allromanceebooks.com/product-earthangel-599934-140.html

DUALITY-- BY THE NUMBERS

     Light and darkness. Yin and Yang. Venus and Mars. Optimist or pessimist--half full or half empty. Protagonist and antagonist. A fantasy writer seeks out the duality at the core of any story line. Really, who wants to read a story about good and good? Despite the spin, it’s a binary world. Things do or don’t happen, and are or are not. As Yoda succinctly explained, “Do or do not, there is no try.” 

     Duality is everywhere, if one knows what to look for. Take numbers for example. Absolutes, right? Not necessarily. January U.S. labor figures came out showing substantial and continuous job growth. According to the commentators on channel 47, it’s good news. However, according to the talking heads on channel 48, it’s horrendous news. In fact, according to some of the talking heads, the numbers aren’t even real (which makes no sense since there are no “i”’s next to the reported numbers). Same numbers. Go figure. On deeper reflection, though, one should hardly be surprised. In the US, an octodecillion is a one followed by fifty-seven zeros. In Britain, the same number is one followed by 108 zeros. Similarly, a vigintillion is one followed by sixty-three zeros in the US, and 120 zeros in Britain. 

     One is the identity number. Number one gets parades and cereal box covers. Number two, well, who remembers who took the silver medal in women’s curling in Nagano in 1998? Gotcha, it was a trick question. Denmark took the silver, but it was their first medal in winter Olympic history, a fortiori, an event memorable because it was a number one. Generally speaking, however, number two fades rapidly into the mists of memory.

     Two is twice one, and serves as the basis for our binary world, yet doesn’t even appear in base two. In base ten, we call “10” “ten”. In base two, we call “10” “two”, but does it look like a two to you? Of course not. It is a classic case of appearance versus reality, a fundamental precept in fantasy writing, which mercifully finally brings us to the point.

     Writing is the product of a continuous subconscious stream of binary choices. At each step, the Muse is checking off countless boxes with yeses and noes. Each yes or no has consequences for the story which affect the story’s appearance, and thus, the reader’s willingness to suspend disbelief and accept your character’s actions. 

     Let’s build a fantasy character. Right off the bat, the binary computer goes to work. Since we’re dealing with fantasy, question one is whether or not the character is animate? Check “yes” or “no”. If “yes”, continue to question two. Is the character human? Jumping ahead, we’ve checked “animate-yes”, “human-yes”, “female-yes” and after several dozen more questions, we have “Mackenzie”, age 18, blonde, hair to mid back, C cup bra, honors student, lives with parents,sings in her church choir-soprano.

            As Mackenzie stepped forward for her solo, he spied the dark stranger sliding into the      last pew. Smiling, she....

      She what? Well, that depends on a number of binary choices. What is Mackenzie’s basic character, sacred or profane?  If your Muse checked “yes” for “sacred”, it is unlikely that upon viewing the dark stranger, Mackenzie felt her nipples harden and developed a tingling between her legs. More likely, “Smiling, she felt (‘joy’, ‘love’, ‘compassion’, ‘hope’, ‘vindication’)...” Conversely, why is the dark stranger there? Does he have designs on Mackenzie? Yes. Does he mean her harm? No. Does he want her sexually? No (at least not yet). Ultimately, the reader will learn that the dark stranger is there to save Mackenzie from the visiting imposter Episcopalian clergyman who, in fact, is really Formorii (Irish nasties--defeated at the Second Battle of Magh Tuireadh, but I digress).

       The writer’s job is to get the story down in black and white. Like my holiday gift tee shirt says, “Even if it’s crap, just get it on the page.” Once it’s down, then the writer can go back and check the Muse’s decision making process, and flip the occasional yes to no or no to yes until the story has the appropriate appearance. Once that is done, the binary choice flips over to the reader who will like it or not. The rest is just commentary.

CK Copyright 2/7/12; Moral rights to be identified as the author of the foregoing article asserted worldwide (including in Great Britain in accordance with Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988) (See prior blog on Moral Rights).    

          

Two New Guest Blogs

It's twofer day! Check out my guest blog "Betimes Bestride 

Behemoths" at Come Selahway With Me.

http://selahjanel.wordpress.com/2012/10/25/

And then check out Siobhan Kincade's Backlist Bash: Ken 

Charles --Slightly Twisted Sisters

http://siobhankinkade.wordpress.com/2012/10/24/

New Interview up by Selah Janel

Check out my new interview by Selah Janel.

http://selahjanel.wordpress.com/2012/10/24/

METAPHORIC MUMS

We have a fall tradition. Every year, we pick up a couple of pots of mums and put them out on the porch. Since we’re renters, we don’t plant them. We just leave them on the porch and enjoy them there. In the spring, usually around the time of the first grass cutting, we toss out the last years’ pots. This year, however, the first grass cutting was in mid March when it was already in the eighties. When I went to toss the mum pots, I noticed that one of the pots had plants with green leaves. That pot I kept.

By May, the mums were blooming. We had a large number of cheery flowers, bobbing and swaying in the tepid spring air. The blooms were still going strong at the start of the summer’s record breaking streak of consecutive days over eighty-five. Then came Fandomfest weekend and to my shame and horror, the untimely demise of the Chrysanthemum Spring Uprising.

Over Fandomfest Weekend, we arranged for a friend to come over and feed our cats. But I forgot to tell her to water the mums. After several days of baking in St. Louis’s hundred plus degree oven, the mums shriveled and turned brown. When we got home from Louisville, not a single little messenger of hope greeted us.

Head hanging, I watered the pot daily during the next couple weeks of record setting heat. Despite the oppressive atmosphere, in the third week, I noticed the first flushes of green. Week by week, new leaves appeared. Today, there is once again more green than brown, and the plants are full of new flowers. The Miracle Mums are alive!

Watching the growing buds, it occurred to me that not only are these mums miraculous, they are also metaphoric. These mums represent writing as an avocation. At times they flourish. They come into their own at the most unexpected times. Following periods of floral fecundity, they go dormant for a while to recharge. At times they take hard hits and appear completely moribund, but deep within, the spark is still there. With a little nourishment and encouragement, they come roaring back.

Like the mums, at the peak of the heat, I couldn’t write a damn thing. As the heat wave crested, I turned out a novella and a short story. Now that it is cool enough to sleep through the night, I’m ready to go back to work on some of my larger WIPs. In September, I pushed ahead and finished a new science fiction novel in time to submit it to the Harper Voyager open call for submissions. Intellectually, I’ve always understood that there will be dry periods when writing. But emotionally, there is a corresponding need to fight the pessimism that accompanies such dry periods. Now that I have an avatar to focus on, it will be easier to remember that so long as the desire is there, eventually the words will come.

CK Copyright 10/21/12; Moral rights to be identified as the author of the foregoing article asserted worldwide (including in Great Britain in accordance with Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988) (See prior blog on Moral Rights).

Welcome to the Seven Realms Earthside Communications Center

Greetings Traveler, and welcome to the Seven Realms Earthside Communications Center (SRECC). Whether you've just arrived Earthside, or have been stranded here for a while, the SRECC will provide you with valuable information during your stay.

Access to the Golden Way is available in most metropolitan areas, and at several burned out rest stops along old US Route 66.

For the sake of uniformity, the SRECC uses Earthside English as its principal language. Plans are under consideration for mirror sites in Qpiad and High Sidhe, subject to funding availability and limitless temporal resources.

The SRECC will be updated continuously, beginning with the next update, and continuing thereafter whenever an update is available. All updates are retrospective in nature and may be considered concurrently, sequentially, or out of natural order.

The SRECC is not responsible for any temporal anomalies resulting from fluctuations in the Veil.

The next meeting of the Board of Directors will be open to the public at Djinnie's Bar and Grill on 9th St., starting promptly at 12:00 (that's half past anvil on your Godmother Clock) on the last vernal equinox.

Any questions may be directed to the Oracle at Delphi, or sent directly to Charlie Kenmore, Administrator at this Blog or charliekenmore@gmail.com

Alexx Momcat and I are at Archon 36. So far, we've seen R2D2, several aliens and three foot tall Iron Man.

Welcome to the Seven Realms Earthside Communications Center

Greetings Traveler, and welcome to the Seven Realms Earthside Communications Center (SRECC). Whether you've just arrived Earthside, or have been stranded here for a while, the SRECC will provide you with valuable information during your stay.

Access to the Golden Way is available in most metropolitan areas, and at several burned out rest stops along old US Route 66.

For the sake of uniformity, the SRECC uses Earthside English as its principal language. Plans are under consideration for mirror sites in Qpiad and High Sidhe, subject to funding availability and limitless temporal resources.

The SRECC will be updated continuously, beginning with the next update, and continuing thereafter whenever an update is available. All updates are retrospective in nature and may be considered concurrently, sequentially, or out of natural order.

The SRECC is not responsible for any temporal anomalies resulting from fluctuations in the Veil.

The next meeting of the Board of Directors will be open to the public at Djinnie's Bar and Grill on 9th St., starting promptly at 12:00 (that's half past anvil on your Godmother Clock) on the last vernal equinox.

Any questions may be directed to the Oracle at Delphi, or sent directly to Charlie Kenmore, Administrator at this Blog or charliekenmore@gmail.com

Ken Charles's "Venus and Marks" Released

Check out the latest CP collection "Venus and Marks" by Ken Charles.
http://noboundariespress.com/2012/07/04/now-available-venus-and-marks-by-ken-charles/

YES, VIRGINIANS, THERE IS A SANTA CLAUS -- AND OTHER RANDOM MUSINGS AND AWARDS FROM FANDOMFEST

     It’s official. Yes, Virginians, there is a Santa Claus. Santa Claus is about seven miles south of US 64 at Exit 63 in Indiana. For the skeptics among you, a picture of Alexx Momcat and Santa at the city limits of Santa Claus, Indiana can be found on Facebook and Alexx Mom Cat’s Gateway Book Blog. 

     Special thanks and kudos to Stephen Zimmer. It’s not easy to cram a year’s work into a couple of months, but he did it (despite having his staff appropriated out from under him). 
 
     I hate “I told you so’s,”, but FandomFest Weekend was filled with food and family, just as I warned. It was tremendous meeting so many of our e-family in one place. An extra star for Raven, Bill, Susan and Mama who let us hold Baby Alice.
 
     Gentleman Celebrity of the Fest Award -- We have a tie. On Friday morning, I ran into John Rhys-Davies. I took a moment to tell him that I’ve enjoyed his work for many years. I didn’t expect to take up any more of his time, but he saw my “Author” tag, and asked me about my writing. This brief exchange won me the “neener, neener” battle with Alexx Momcat.
  
   On Saturday, someone gave me lots of Kharma points by scheduling me for a reading with Angelia Sparrow in the Holly Room past the swimming pool at the same time as one of Timothy Zahn’s presentations. Although I missed the presentation, at least I had time to make a pitch to Inkstained Succubus Productions. However, on Sunday, we found Mr. Zahn wandering the vendor area. He not only signed Alexx’s autograph book and bookplates for us (since we pulled his books out but forgot to bring them), he also came over to where Alexx was nursing her sore knee so we could get his picture with her.
 
     Honorable Hearsay Mention goes to James Marsters for his brilliant performance in “The Photo Op” co-starring Selah Janel.
 
     Say What? Award-- Hands down, this award goes to Galt House Parking. We were charged three different rates on Friday, Saturday and Sunday.
 
     Just Nod and Agree with Them Award -- We have another tie. This one goes to the tandem of Lee Martindale and James Tuck. In the immortal words of Stan Lee, “‘Nough said’.”
 
     Best “Take That, You homophobic, diabetic!” Award -- Crymsyn Hart.
 
     Shortest Skirt Viewed on the Third Floor Breezeway Award -- sorry, what were we talking about?
 
     Breast of Show Award -- the Eyeballs Lady.
 
     Best Concealed 30 Foot Aquarium Award -- Al J’s (the Breezeway bar).
 
     Highest Hotel Speedbumps in North America Award -- the Galt House.
 
     Thickest Still Intelligible Accent Award -- Tally Johnson.
 
     Pout of Show -- Raven (I earned it. But two chocolate muffins later, I think I’m forgiven. Hope so any way.)
 
     Best Refill My Psycodelic Pen Supply Award -- Kathleen Sullivan
 
     I had high expectations for the weekend, and they were met and exceeded. Looking forward to seeing some of you at Archon this fall, and the rest of you next year. 
CK

    

     
    

CUSTODY ISSUES FOR YOUR BRAIN CHILD WHEN DIVORCING YOUR PUBLISHER

     My alter ego, Ken Charles, recently terminated two contracts with a small publishing company. Once the Digital Millennium Copyright Act of 1998 notices worked their magic and the last of the vendors took down the works, I naively thought that was pretty much the end of the matter. However, just as I considered dipping my toe back in the publishing waters--this strange, foreboding music sounded--dum-dum, dum-dum, dum-dum, dum-dum. I received an email from the putative “editor” for the two works warning me that:

    "You are not permitted legally to publish any of my edits should you choose to publish either The Mercies of Cinderella or The Naughty Ladies of Cotton Glen. You do not have any rights to any of my edits."

Curiouser and curiouser, to say the least. 

     As a courtesy, I sent back a reply email explaining that the poor woman was confused for two basic reasons. First the “editor” was not in privity with the “author”. Simply put, I didn’t hire her. If she believed that she was entitled to some kind of compensation, then she had to seek it from the publisher that hired her. Second, she did not have any “intellectual property” interest in her putative “edits”. (This reply was not well received.)
 
Custody Issue One -- Who has rights to the work?
 
    The parties who have a claim to a work are those parties identified in the contract. In my case, the “editor" was not a party to either contract. Unless there is some kind of express provision granting a lien or some other kind of guaranteed payment or other rights to the “editor”, then the author has no obligation to the “editor”. Conversely, although the publisher’s “president” may sign the contract for the publisher, the “president”does not assume any personal liability for the publisher’s subsequent breach of contract. Accordingly, assuming that the contract properly expires or otherwise terminates by its terms, then the rights to the work should return to the author.  
 
     For example:
 
     In Shortcuts Editorial Services, Inc. v. Kaleidescope Sports and Entertainment, L.L.C. and Cybergenics America, L.L.C., 706 N.Y.S.2d 572 (2000), a production company hired a film editor to edit a technology firm’s television programming. When the production company failed to pay the editor, the editor sued the technology firm. The claims were denied. The court explained that it was not enough that the technology firm benefited from the editor’s work. The editing work was performed for the production company. The court concluded “if services were performed at the behest of someone other than the defendant, the plaintiff must look to that person for recovery.”
 
    Accordingly, applying the above reasoning, even if an author benefits from an editor’s work, if the editor is hired by the publisher, then the editor has to look to the publisher for compensation. The “editor” does not acquire an interest in the work following the termination of a publishing contract.
 
Custody Issue Two -- Who has rights to the “edits”?
 
     Basically, the author comes out of a terminated or expired contract with the same work s/he had going into it, with the extra added bonus of additional proofing. However, some contracts may provide that the publisher retains all rights to its “intellectual property” or copyrighted materials. So what additions to a work beyond the original submission belong to the author, and what belongs to the publisher or even the “editor”? Simply put, at what point does a work become a “joint work”?
 
          The U.S. Copyright Act (17 U.S.C. Sec. 101) defines “joint work” as:
    "A 'joint work' is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."

The Act does not define the words “inseparable” or “interdependent”. 

     In Visitors Industries Publications, Inc. v. NOPG, L.L.C., 91 F.Supp.2d 910 (2000), the court explained:
    "Even if two or more persons collaborate with the intent to create a unitary work...the     product will be considered a 'joint work' only if the collaborators can be considered     'authors'. (Cite omitted.) In order to determine authorship, most courts have adopted the 'copyrightability test'.... 
Under the copyrightability standard, (a) collaborative     contribution will not produce a joint work, and a contributor will not obtain a co-ownership interest, unless the contribution represents original expression that could     stand on its own as the subject matter of copyright.
    (Cite omittted.) As quoted above, an author must contribute more than mere directions or ideas to a work to gain copyright protection under the Act; he must translate an idea into a fixed, tangible expression.
    
Simply put, the insertion of a missing word, or the correction of improper punctuation does not create “subject matter that will stand on its own as the subject matter of copyright", and so does not create a “joint work”. Even suggesting plot changes to an author will not turn an “editor” into an “author”.
    
     In the case of my terminated contracts, in one of the works, the publisher included this disclaimer:
    "Please note that final edits on this work are at the discretion of the Author. Our editors may make  suggestions we feel would improve the work and reader appreciation,     however, our editors are forbidden to change anything without Ken Charles' (sic) approval. This ebook remains an expression of his creativity and is published as directed by him."

In short, the publisher expressly disavowed any claim of authorship, or that the work was now a “joint work”.  The “editor” who made certain suggestions, some of which I adopted, did not become an “author” with a protected “intellectual property” interest in the work.
 
     I privately edited a book for an author who was badly pressed for time. We had worked on several projects together. When I made a number of suggestions, she instructed me to just go ahead and make the changes, which I did. Accordingly, my ideas were translated into “fixed, tangible expression(s)” that became “inseparable or interdependent parts of a unitary whole.” Arguably, I moved from the role of “editor” and became an “author” of a “joint work”.

CK Copyright 6/25/12; Moral rights to be identified as the author of the foregoing article asserted worldwide (including in Great Britain in accordance with Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988) (See prior blog on Moral Rights).    

"Personhood" is now available

The "Personhood" book is now available from Beuyscouts of Amerika. FREE!
Includes my short story "Attar of Humanity".


http://beuyscouts.files.wordpress.com/2012/06/personhood_the-book.pdf

RES IPSA LOQUITUR, OR DOES IT?

     My daughter graduated from the University of Missouri College of Veterinary Medicine on Friday, May 11th, 2012 (the 63rd such Commencement). Author James Rollins is also an alumnus, but I digress. The completion of her studies finally allowed her sufficient free time to read her father’s first novel, Earth Angel (which had been collecting magnetic particles on her electronic TBR shelf for over a year). When she finished, she asked me a question as to why Angel acquired control of the Veil, while prior entities who entered the Veil didn’t. Initially, I thought the answer was res ipsa loquitur (literally, “The thing speaks for itself”, a legal term used when the evidence presents a fairly certain conclusion as to liability, such as the negligence of the driver who rear ends a stopped vehicle). The living Angel entered the Veil inadvertently and became a part of it. Other entities entered the Veil through the cessation of their existences. However, since Rachael is a careful reader, but still questioned the matter, at some point I may want to go back in and clarify the issue.

     Dammit, Jim. I’m a pantser, not a plotter. The issue of how Angel acquires her powers is an example of a potential plotting pothole. As a pantser, I frequently have no idea what my characters are going to do until the Muse informs me that they actually are doing something. Accordingly, it is not uncommon for me to have to go back and lay a foundation for a character’s actions that would have been easier to insert the first time through a chapter if only the Muse had warned me the insertion would be needed later. Once the proper foundation is laid, then the reader is more likely to accept subsequent plot developments as res ipsa loquitur.

      The same foundational problems can arise with a character’s motivation. I edited a novel wherein the author spent the first chapter establishing a very strong, Type A personality, self-absorbed heroine. The heroine is at the pinnacle of her career, and is about to close a major deal. She enjoys the status and material benefits that her job affords her. Just before this major deal is to close, she gets word that her mother is dying. Several years earlier, the women had a falling out over the heroine’s job, and hadn’t spoken since. Her mother dies, but leaves a package in a safe deposit box with instructions that the heroine is supposed to deliver the package to an individual who lives in another state in a far removed rural location. The heroine drops everything to deliver the package.

     When I questioned the author about why the heroine would drop everything to deliver the package, essentially her answer was res ipsa loquitur. She told me that it was the mother’s dying wish, and the heroine felt duty bound. Well, from a reader’s perspective, if heroine is so focused on her job and herself, and hasn’t even spoken to the mother in years, where did the sense of duty come from? I suggested that she needed to add in the heroine’s unresolved guilt over her last fight with her mother with whom she was very close when she was a child, to explain why the heroine didn’t just send the package off by an overnight delivery service. 

     While willing suspension of disbelief will allow the reader to bridge some plotting and logical chasms (particularly in the genres of fantasy and science fiction, e.g. accepting that super heroes can fly without any apparent means of propulsion), the fewer and narrower the obstacles, the more likely the reader will be satisfied with the end result. While a proposition may appear “obvious” to the author, the author needs to ensure that there is sufficient detail to allow the reader to come to the same foregone conclusions. 

CK Copyright 5/13/12; Moral rights to be identified as the author of the foregoing article asserted worldwide (including in Great Britain in accordance with Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988) (See prior blog on Moral Rights).    

IN THE SAND: A DRAWN LINE OR ONE’S HEAD? STANDING UP TO ON-LINE PIRACY

     “Ignore it. It will go away.”  That is the basic advice that I received from several authors when I raised the issue of dealing with an upstart, er start up publishing company that refuses to abide by two publishing contracts that it drafted. Indeed, one of the terms of the contracts (same basic terms in both) pertains to the duration of the assignment of rights. After the expiration of the contract term, all rights revert. Accordingly, by simply waiting, the problem will go away eventually. However, while I don’t covet instant gratification, waiting is not in my nature, particularly when I’ve been wronged.

     There are unilateral contracts where only one party has any obligations, such as offering a prize for the successful completion of an objective (e.g. winning a race). No one has to compete for the prize, but if someone actually successfully completes the objective, then the first party has to award the prize. Similarly, a party that acquires an option to purchase something, has no obligation to make the purchase, but if it elects to exercise the option, then the contract “ripens into a bilateral contract under which both parties must fulfill their respective obligations as set out in the option contract."  Richard D. Weinstein, Appellant, v. KLT Telecom, Inc., Respondent (Missouri Supreme Court, SC87816, 2007).

     A publishing contract is a “bilateral contract under which both parties must fulfill their respective obligations”. A bilateral contract is an agreement supported by mutual consideration (something of value-either tangible such as cash or property, or in the form of a promise to take or refrain from taking certain actions). A party cannot pick and choose which provisions of the contract to follow and which to ignore. A publisher cannot take the license to use an author’s copyright protected material unless it is willing to follow and fulfill all of its obligations under the publishing contract. Since many publishing contracts are heavily weighted in favor of the publisher, even the smallest of rights granted to or retained by the author constitutes an integral part of the publisher’s consideration supporting its right to use the copyright protected material. Accordingly, a publisher that  fails or refuses to fulfill all of its obligations under the contract is cheating the author. Therefore, the author should not feel guilty about enforcing the author’s rights. An author can always file a lawsuit alleging breach of contract, and in some cases, fraud in inducement or anticipatory breach of contract. However, there are other options.

I. THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998

    The Digital Millennium Copyright Act of 1998 provides authors with a means for addressing electronic piracy of the copyright protected materials. It provides procedures for service providers to follow to identify and take down unauthorized works. A knowing failure to take down or block access to unauthorized works could subject the service provider to monetary damages.

     An author who believes that the author’s copyright protected material is being used improperly may send a take down notification to a service provider (DMCA Section 512(c)(3)). If the service provider removes or blocks access to the challenged works, then it is not subject to monetary liability. Similarly, it is not subject to monetary liability to a third party for taking down challenged material, unless the service provider is served with a statutorily proper counter notification from the posting service subscriber.

     Title 17, Chapter 5 of the US Code (17 USC Section 501 et. seq.) deals with  copyright infringement and remedies. Actions under this Chapter include awards of monetary damages and attorneys fees. When dealing with a provider of unauthorized copyright protected materials, the DMCA established procedures for sending a takedown notice. Section 512(c)(3) provides:       (3) Elements of notification.—

            (A) To be effective under this subsection, a notification of claimed infringement

            must be a written communication provided to the designated

            agent of a service provider that includes substantially the following:

            (i) A physical or electronic signature of a person authorized to act on

            behalf of the owner of an exclusive right that is allegedly infringed.

            (ii) Identification of the copyrighted work claimed to have been

            infringed, or, if multiple copyrighted works at a single online site are

            covered by a single notification, a representative list of such works at

            that site.

            (iii) Identification of the material that is claimed to be infringing or to

            be the subject of infringing activity and that is to be removed or access to

            which is to be disabled, and information reasonably sufficient to permit

            the service provider to locate the material.

            (iv) Information reasonably sufficient to permit the service provider

            to contact the complaining party, such as an address, telephone number,

            and, if available, an electronic mail address at which the complaining

            party may be contacted.

            (v) A statement that the complaining party has a good faith belief that

            use of the material in the manner complained of is not authorized by the

            copyright owner, its agent, or the law.

            (vi) A statement that the information in the notification is accurate,

            and under penalty of perjury, that the complaining party is authorized

            to act on behalf of the owner of an exclusive right that is allegedly

            infringed.

http://www.copyright.gov/title17/92chap5.pdf

Failure of an author to follow the above notice procedures means that the service provided will not be charged with having requisite knowledge of any infringing activities, and so will not be monetarily liable to the author.

     The requirement that the notice be sent to the “designated agent of the service provider” can be a little tricky. The service provider should provide a link to its designated agent. If it doesn’t have such a link on its site, the US Copyright Office maintains a list of registered designated service provider agents. http://www.copyright.gov/onlinesp/list/. If the service provider or vendor is not listed, then the author should send the takedown notification to any “contact us” link and any complaint and/or comment links (general or linked to the specific work). 

II. PEEKING BEYOND THE DIGITAL MILLENNIUM COPYRIGHT ACT OF 1998

     You’ve just sent your 238th take down notification, but Infringer-Alpha (“IA") continues to post your copyright protected materials with impunity. Obviously the monetary damages and attorneys fees available under the DMCA haven’t slowed IA down. How would IA feel about triple damages? How would the service providers that keep allowing IA serially to post your works feel about treble damages? Are you really, really pissed off? Let’s talk civil RICO.

     RICO, Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1964(a), (b) and (c), provides for civil actions with triple damages as well as attorneys fees. RICO actions are highly complex. However, the basic premise is that entities that engage in patterns of illegal activities may be subject to such actions. There have to be violations of certain criminal statutes. In the case of the serial infringer IA, by posting author’s protected materials without permission or right, arguably IA commits wire fraud, a proscribed action that meets RICO requirements. By posting multiple times, arguably IA engages in a pattern of such activities. In joining with service providers A thru ZZZ, arguably IA creates an “association-in-fact enterprise” for the purpose of conducting the wire fraud activities.

***

     Sticking one’s head in the sand and ignoring the actions of a publisher that fails to abide by its contractual obligations doesn’t make a problem go away. Rather, it encourages the offending publisher to treat other authors in the same manner. After all, as any ill-behaved child knows, there is no reason to stop misbehaving until you’re caught and called to answer for your misconduct. An author whose rights are being trammeled should not merely run out the clock and wait for the contract to expire to recover her/his rights. An offended author needs to draw a line in the sand. The author should call the publisher on the publisher’s breaches of the publishing contract both for the author’s sake, and for the sake of future authors. To that end, I notified the naughty publisher that the two contracts were terminated, and sent take down notices to the service providers hosting the two works. Granted, a civil RICO action may be a bit over the top.  However, if any author decides to go that route, please send me a copy of the complaint.

CK Copyright 4/30/12; Moral rights to be identified as the author of the foregoing article asserted worldwide (including in Great Britain in accordance with Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988) (See prior blog on Moral Rights).     

 

WRITING PET PEEVE #498--ANTHROPOPATHY OF CAREER POLITICIANS

   

      We all do it. We do it from early childhood from the first moments after we acknowledge the world outside of ourselves. We anthropomorphize the world around us. We name our first stuffed animal, and endow the beloved stuffie with human characteristics that are commonly lacking in plain cloth, batting and plastic buttons. From books to movies and television programming, talking animals are a staple. The tendency to anthropomorphize is a lifelong attribute. There isn’t a writer alive who does not know, with unshakeable certainty, that the word processing system that just deleted the entire day’s work product and output just as you were about to hit “save”, did so intentionally and with malice aforethought. (Don’t even think about it, Machine.)

      “Anthropo- a learned borrowing from Greek meaning 'human’ used in the formation of compound words....” Webster’s Unabridged Encyclopedic Dictionary of the English Language, New Revised Edition (Portland House, 1996, p.63). “Anthropomorphize” or “anthropomorphise”-- “to ascribe human form or attributes to...” (ibid, p. 63). 

     Anthropomorphism lies at the heart of fantasy and para-normal writing. If the creature doesn’t have certain undeniably human attributes, then why is the hero or heroine so hell bent on trying to bed it? Conversely, why is the creature so determined to bed the human? Accordingly, as a fantasy writer, I have been programmed since birth and by choice of avocation to accept the concept of anthropopathy.

     Many writers may suspect while growing up that one or more siblings or cousins may be changelings. In order to pacify Mom, the writer gives these creatures human attributes and treats them accordingly. At some point, the writer may acknowledge that the sibling or cousin is, in fact, human after all. Acknowledging that Mom was right may take a little longer. The point, however, is that anthropomorphizing things that look human is a common practice. Nonetheless, the anthropopathy of career politicians remains one of my writing pet peeves.

     What is a “career politician”? A career politician is a mindless golem manufactured to perpetuate and facilitate the decision making operations of government. Special interests provide the glue that holds the construct together. That such an entity should be entrusted with decision making responsibilities is either a cruel oxymoron, or the ultimate expression of heartless cynicism. The career politician is not a mere homunculus. It is a full sized, walking, talking breathing, human appearing construct.

     Typically, the anthropomorphized career politician receives the full “Oz” package. First, it possesses “human intelligence”. It is expected to be fully conversant on every subject and topic from bio-ethics to hydrofracking. It recites dialog from read-only memory. Yet the listeners are continually astounded, flummoxed and perturbed when the words directly contradict a prior pronouncement Second, it is dowered with a “heart”, the avatar and embodiment of human compassion (not the actual organ). Once again, the public is perplexed when it votes to displace hundreds of people from their homes to facilitate the development of a superfluous shopping center. Finally, it is loaded with “courage”. Still, people are amazed and bewildered when it refuses to take any actions contrary to the interests of its benefactors, despite overwhelming public support on an issue.  

     While problems with plot inconsistencies continually plague the anthropomorphized career politician, a far greater problem often lies with attempts at mimicking human speech. What kind of character would tell people desperate to find employment, “I like to fire people.”? What kind of character sits down at a small gathering to seek his hosts’ support, then insults the special treat that the hosts provided? If a character claims to support women’s rights, then at least some of the character’s actions should be consistent with such support. Willing suspension of disbelief will only carry a character so far.

     Career politicians are sui generis, creatures of their own unique kind, and need to be recognized as such. Ascribing human characteristics to them only serves to confuse and frustrate the populace. So stop it! As every writer knows, a reader that is confused or frustrated isn’t going to finish reading the book. When writing about career politicians and their actions, remain objective.

CK Copyright 4/24/12; Moral rights to be identified as the author of the foregoing article asserted worldwide (including in Great Britain in accordance with Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988) (See last week’s blog on Moral Rights).    

Naughty Nefarious Pirates update

Facebook has removed the covers of The Mercies of Cinderella from its pages. Under any scenario, the Author Agreement for the work terminated on May 19, 2012. The work has been removed from Smashwords. However, the former publisher just listed it on Kobo.

Aeode & Charley - a Mini Opera

DRAMATIS PERSONAE

The Sweeper of Dreams

Charley Nellis

Aeode

Elderly Lady

Announcer

ACT I:  HOME SWEAT HOME

A small, cluttered apartment. CHARLEY NELLIS sits at a desk holding a letter opener. He is shirtless and sweaty. Crumpled papers litter the floor around him. A ceiling fan spins slowly. 

CHARLEY
Karen. (Charley puts his head down on the desk and sobs a couple of times. He sits up and sighs.) Damn it. I need you. (Charley pricks himself with the letter opener.) Ow! (Puts his finger in his mouth.)

THE SWEEPER OF DREAMS (sweeping up paper wads into a pile)
Be honest with yourself. What have you achieved since she arrived? She was a distraction from your art. Your tears are not for her loss, but for the time that has irrevocably slipped away. Still, there is hope.

AEODE (Off Stage - behind Charley)
Hello, Charley. (Charley spins around and knocks over a drink. Aeode enters, in Greek tunic and sandals. The Sweeper nods to her, and exits.)

CHARLEY
Who in the hell are you? How'd you get in here?

AEODE
You summoned me, Charley. I am Aeode.

CHARLEY
I summoned you? I didn't summon anyone. Look lady,  you better go back to the damn escort service and tell them they have the wrong address.

AEODE
What is an escort service?

CHARLEY
Okay, lady. Whatever. It's time for you to leave.

AEODE
But we have work to do. You did summon me here to help you, didn't you?

CHARLEY
For Christ's sake, lady. I didn't summon you. Go back to the agency.

AEODE (confused)
Did you not make the offering?

CHARLEY
What in the hell are you talking about? What offering?

AEODE
Did you not offer your blood, sweat and tears for your art?

CHARLEY
My blood, sweat and tears? What are you... (Charley turns and picks up his composition pad. He traces the blood and tear stains on the pad with his finger. He turns back to Aeode.) Who are you?

AEODE (smiles)
As I told you, I am Aeode.

CHARLEY
Great. Hi Aeode. I'm Charley.

AEODE
Of course you are.

CHARLEY
What in the hell are you doing here?

AEODE
I am here to inspire you, Charley. Shall we go to work?

CHARLEY
What do you mean go to work?

AEODE
Charley, you summoned me. I am your Muse.

CHARLEY
My muse? (collapses into his chair) Christ, I've lost it. She hasn't even left town yet, and I've gone nuts.

AEODE
Charley, I'm real. I am Aeode, sister of Melete and Mneme. I was in Parnassus when I learned of your offering.

CHARLEY
So you were over in Greece...

AEODE
San Francisco, actually.

CHARLEY
Okay, San Francisco. So you learned of my offering, and came here. Right. So what exactly are you doing here?

AEODE
Charley, I am the embodiment of song. Whatever voice is hidden inside you, I will help you find it.

CHARLEY
Great. So you'll help me find my inner voice. I don't suppose you have any references.

AEODE
Of course I do, silly. Every song you've ever heard, I inspired.

CHARLEY
Right, every one, huh? Mozart arias?

AEODE
Certainly. (Aeode launches into "Queen of the Night" aria from "The Magic Flute").

CHARLEY
Whoa, whoa, whoa! Okay. I believe you. So you can do opera. Well, I don't think my inner voice is very operatic. I'm pretty sure it's more contemporary.

AEODE
I'm perfectly comfortable with any style that is within you. In-A-Gadda-Da-Vida was in the top ten for eight-one  weeks. Of course, that style may not be yours either. But I was also there for Daryl Dragon and Toni Tenille, and now I am here for you.

CHARLEY
I don't believe this. Do you know the Fates?

AEODE
We're good friends. I had lunch with Clotho last Tuesday. Why do you ask?

CHARLEY
Because you just told me that I'm destined to bring about the second coming of the Captain and Tenille!

AEODE
Oh no, you misunderstood me. I am there whenever it is time to give voice to song. Dragon and Tenille were only an example. I could have used Madonna and Patrick Leonard.

CHARLEY
Gotcha! It was just an example. You could have used Tammy Wynette. I understand. But I'm not Madonna or Tammy Wynette or Dean Martin. I'm Charley Nellis. So what can you do for Charley Nellis?

AEODE
I will help you realize your dreams.

CHARLEY (laughs)
Really? And I haven't even taken you to dinner yet.

AEODE
I am not here to eat, Charley. Let's get to work.

CHARLEY
Sure. Great. Let's get to work. But not here. I've got to get out of here for a while.

ACT II -- THE PARK
Charley sits alone on a blanket in the park, with his composition pad on his lap.
(An ELDERLY LADY walks a small dog on the path by the blanket.)

CHARLEY
No, that's not going to work.

AEODE (offstage)
You haven't given it a chance.

CHARLEY
I don't have to. It doesn't feel right.
(Elderly Lady watches Charley.)
No, I don't. (beat) I don't care. It's just not working. (beat) I'm not following you.
(Aeode joins Charley on the blanket.)

AEODE
You're still trying to force it. You have to relax. Here, turn around.
(He turns his back to her. She massages his temples. Charley sighs.)

CHARLEY
Stop! It’s no use.
(Elderly Lady shakes her head and walks on.)
I can't do it. A hell of a lot help you've been!
(Elderly Lady hurries on.)
Right. I could have stayed home, and gotten just as little out. You don't get it, do you? There is nothing in here. There is no inner voice for you to bring out.

AEODE
Charley, look at me.
(He looks at her breasts)
No, Charley. Look me in the eye.
(He looks up)
That's better. Now listen to me, mister. I've been doing this for several millenia.
I've helped the greats. I've helped the not so greats. But every one of them had something deep inside of them. They each had at least one little seed that needed to grow. I helped them find that seed. I have given everything I am to make those little seeds grow. And I know there is a seed in you.

CHARLEY
There's a seed in me, huh? Poppy seed, sure. Sesame probably. Maybe even a watermelon or two.

AEODE
Charley! I know it's in there!

CHARLEY (takes a deep breath, lets it out slowly)
You've been doing this for millenia. Always giving everything for someone else's art.

AEODE
That's right, Charley.

CHARLEY (reaches out and strokes Aeode's cheek.)
How sad.

AEODE
How so, Charley?

CHARLEY
Year after year, all over the world, you help everyone else find their inner voices. But
what about you?

AEODE
What do you mean?

CHARLEY
That's it! (Grabs her and kisses her) You did it! You found my seed!
(Kisses her again)

ACT III -- NIGHT CLUB
Aeode is in a nightclub at a standing microphone. She wears an expensive outfit. She bows and throws a kiss to the audience. Charley sits at a front row table, dressed in a tux. There is a bottle of champagne on ice at the table.

ANNOUNCER (Off stage)
Ladies and gentlemen, Aeode!

(Aeode bows several times, throws more kisses to the audience, then walks over to Charley, and accepts a sip of champagne from Charley’s glass.)

CHARLEY (holds up a contract.)
They signed. We got it all.






AEODE
Buy a girl some dinner?

THE SWEEPER OF DREAMS (walking across stage, sweeping.)
Be honest with yourself, and your dreams will manifest.
(Charley raises his champagne glass to the Sweeper.)


CK Copyright 5/15/12; Moral rights asserted worldwide.

NOW WHAT’S UP, TIGER LILY? THE STORY OF THE MORAL

     Woody Allen broke onto the scene in 1966 with a film called What’s Up, Tiger Lily? He purchased a Japanese film called International Secret Police: Key of Keys. He deleted the soundtrack, and substituted in an entirely new story that had nothing to do with the original motion picture. As Allen explained, “I took out all the soundtrack. I knocked out all the voices, and I wrote a comedy….We put our comedy in where they were formally raping and looting. And the result is a movie where people are running around killing one another, and you know, doing all those James Bondian things, but what’s coming out of their mouth is something wholly other.” http://www.youtube.com/watch?v=3QgABL5DvQA 

     If Allen wanted to produce and distribute What’s Up, Tiger Lily? today, what rights would he need to secure? Allen bought the Japanese film outright. So he controlled the copyright. But another set of creator’s rights transcend and dwell on beyond the copyright. These rights are known as “moral rights”. Moral rights protect the creator’s reputation. They include the rights of integrity and attribution. The right of integrity prevents the mutilation of a work that would besmirch the creator’s reputation. The right of attribution allows the creator to put the creator’s name on a work, or remove it from a work (think Sydney “Paddy” Chayefsky and Altered States). These rights are inalienable, and even survive the creator’s demise. Maybe. Sort of. Well….

     Moral rights are protected under Article 6^bis of the Berne Convention. The US is a signatory to the Berne Convention. However, under US law, Article 6^bis doesn’t actually convey or secure any rights. Section 104(c) of the Copyright Act (17 USC Sec. 104(c)) provides:

               (c) Effect of Berne Convention. - No right or interest in a work

eligible for protection under this title may be claimed by virtue of, or in reliance upon,

the provisions of the Berne Convention, or the adherence of the United States thereto.

Any rights in a work eligible for protection under this title that derive from this title, 

other Federal or State statutes, or the common law, shall not be expanded or reduced by

 virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of

 the United States thereto.

The creator of a visual work of art, however, has “moral rights” under Section 106A including 

attribution and the right to “prevent any intentional distortion, mutilation, or other modification

 of that work which would be prejudicial to his or her honor or reputation…”. Unfortunately, 

under US law, writers are not granted similar protections. If an author is concerned about moral

 rights protection in the US, the publishing contract needs to address the issue specifically.  

     An author’s moral rights are recognized, inter alia, in Great Britain, Canada and France. Moral rights are included as Chapter IV of the Copyright, Designs and Patent Act of 1988 in Great Britain (sections 77 et seq.). Although there is no specific required language necessary to assert a creator’s rights under the Act, generally a reference is made in a work to asserting rights in accordance with “Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988”. In Canada, moral rights are protected under Section 14 of the Copyright Act (R.S.C., 1985, c. C-42) (moral rights can even be bequeathed. Section 14.2.2(a).)

     Returning to the question on the floor, if Allen wanted to produce the same movie today, he would probably need to secure “moral rights” in addition to the copyright. Although he used the visual images of the original Japanese film, by inserting “comedy” in place of “raping and looting”, he distorted and/or mutilated and/or modified the work in such a way as to potentially prejudice the original creator’s reputation.

     Remember the erotic novel from my Paypal rant a couple of weeks ago, Sarai’s Baby (that I still haven’t written yet)? Let’s assume that Sarai’s Baby is under a publishing contract with ZYX WoRldWiDe Publishing Co ™. Under the terms of the contract, I retain the copyright. ZYX has editorial rights. The contract is silent as to moral rights.  

     I spent hours describing in graphic detail all of the nasty things that Abe did to Sarai’s maid. ZYX, however, took out all of the sex, and published Sarai’s Baby as a YA title. ZYX listed Sarai’s Baby for sale on Amazon, Amazon.co.uk, and Amazon.fr. In the US, I may have a claim for breach of contract. However, in the UK, France and Canada, I may have a cause of action for breach of my moral rights protecting my reputation.

CK Copyright 4/15/12; Moral rights to be identified as the author of the foregoing article asserted worldwide (including in Great Britain in accordance with Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988).