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).