Wednesday, May 30, 2012


     “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.
    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
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. 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). 

     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).     

Tuesday, May 29, 2012


      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).    

Monday, May 28, 2012

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.

Tuesday, May 15, 2012

Aeode & Charley - a Mini Opera


The Sweeper of Dreams

Charley Nellis


Elderly Lady



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. 

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.)

(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.)

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

You summoned me, Charley. I am Aeode.

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.

What is an escort service?


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

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

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

AEODE (confused)
Did you not make the offering?

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


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


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.

Great. Hi Aeode. I'm Charley.

Of course you are.

What in the hell are you doing here?

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

What do you mean go to work?

Charley, you summoned me. I am your Muse.

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

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

So you were over in Greece...

San Francisco, actually.

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

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

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

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

Right, every one, huh? Mozart arias?

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

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.

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.

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

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

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

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.

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?

I will help you realize your dreams.

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

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

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

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.)

No, that's not going to work.

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

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.)


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.)


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.


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.


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

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.

That's right, Charley.

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

How so, Charley?

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

What do you mean?

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

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.

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.