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).