Vision: A Resource for Writers
Holly Lisle's Vision
Piracy on the High Bandwidth
by John Savage, Esq.
© 2002, John Savage, Esq.
the last year or so, several authors I know have suffered the ravages of
intellectual property pirates. This article should help writers understand their
rights and how to enforce them. We’ll start off with a few examples, then
issue some letters of marque and reprisal of our own.
by to Be Boarded!”
pirate—we’ll call him Captain Bigbluebeard—had acquired years-old
submissions to a small-press horror magazine that folded. Bigbluebeard then
created a webzine on GeoCities, and posted these stories with full
attribution—and an admission on the webzine page that the materials
were posted without permission.
said you had to be bright to be a pirate. And therein lies the rub. Traditional
print publishing requires a wad of cash and at least the intelligence of a
French poodle for distribution. Electronic publishing requires less—far less.
A fourth-grader can master enough of the WYSIWYG hypertext editors available
today to turn an electronic file into a web page, and probably has enough savvy
to use a free service provider. Distribution then takes care of itself to an
extent impossible with paper products.
second pirate—Captain Brazennads—was moderately more clever, and probably
hurt the author’s feelings a lot more than did Captain Bigbluebeard. This
author posted a short novel on the Web. The pirate copied the short novel,
posted it on his own Web page, and claimed authorship of the novel. The author
discovered the pirate by accident. Public pressure resulted in removal from the
website and some public embarrassment for the pirate, including expulsion from
his otherwise-unrelated writing group.
there are the corporate pirates. Speculative fiction very nearly had one
recently: Wizards of the Coast. Some time after Wizards acquired TSR, Wizards
announced that it would issue a CD-ROM containing all of the editorial material
from the first 100 issues of The Dragon, the premier D&D magazine.
Most issues contained a short piece of hero-based fantasy fiction.
CD-ROM itself raised a few eyebrows. What angered writers, though, was that
Wizards proposed to distribute this CD-ROM without paying a cent more to the
fiction writers, even though the fiction writing contract was not an
“all rights” contract. Wizards (and other reissuers of print materials as
electronic products) claim that the CD-ROM was not a new publication, but just a
reissue and recompilation of The Dragon.
If the CD-ROM is not a new publication, no additional payment is due under
either the terms of the contract or general copyright and publishing law.
(Whether publishers are ethically bound to do so is for another time.) Shortly
after an unrelated court decision that rejected Wizards’ theory, Wizards
But Wizards was not the first, and will not be the last, to make this claim.
the Internet and electronic publishing and “reissues” made protecting
intellectual property impossible? No. Writers can take several steps to protect
themselves from pirates, and instead make the pirates walk the plank.
on a written contract. Writers
should, of course, be thrilled when they make their first sales. However, just
submitting an item for publication does not give the recipient the right
to publish it without the author’s further approval; actual approval is not
implicit in the submission. A submission of a story for publication is an
offer of merchandise on terms to be negotiated. When the editor accepts the
publication, he or she states the terms of acceptance, which must be ratified by
the author. The Uniform Commercial Code goes into the details of contract
formation and validity in mindnumbing detail. There are lots of exceptions to
every rule, and different states interpret these “uniform” provisions
Copyright Act technically prohibits any transfer of any part of a
copyright without a signed, written agreement.
As one federal court noted a few years ago:
sense tells us that agreements should routinely be put in writing. This simple
practice prevents misunderstanding by spelling out the terms of a deal in black
a publisher needs only a distribution right, not the whole copyright, to publish
a story, a novel, or anything else. Unfortunately, the courts have allowed
various “industry standards” to determine rights, and have seldom provided a
definition. For example, the phrase “First North American Serial Rights” is
not defined in the Copyright Act, or anywhere else that has the force of law.
(Even “published” was not defined until the 1990s!) At the very least,
follow the sale of a story up with a letter that states what distribution rights
the publisher is allowed.
should demand written contracts even when the editor is a close friend and
requested the story. If the editor keels over, someone else may have to handle
the editor’s assets—which certainly include literary properties. Bankruptcy
can make things even more convoluted. If a publisher declares bankruptcy, the
trustee will auction off every asset to the highest bidder.
not transfer all rights. In
his column in Speculations, Mike Resnick says that professional writers
reject quarter-cent-a-word sales. I suggest that professional writers reject
all-rights sales. Simple enough? The Wizards of the Coast controversy shows
exactly why. The only people who will get payment from Wizards for the CD-ROM
publication are the fiction writers, because TSR imposed an “all submissions
become the property of TSR” clause on everyone else.
are two exceptions—and only two exceptions—to this rule. The first is media
fiction. Media fiction, whether derived from games, movies, TV shows, or
whatever, is not independently conceived for copyright purposes, no matter how
much effort and originality the writer puts into his or her work. Media fiction
is a derivative work, and the creator of the media property has the master
copyright (although the writer has a second, subordinate copyright in the exact
derivative work). For all practical purposes, the media fiction writer never
had “all rights.” The second exception is the publisher’s offer of so
much money for all rights that the writer will never have to work again—at
least mid-six figures up front, with a continuing royalty and an equitable split
of derivative rights sales.
publishers ask for more rights, claiming that they need the extra rights to help
cover their own risks in publication. This is a barrel of weevil-ridden
hardtack, even for the small press. Accounting rules do not allow a publisher to
project future rights sales, or rely on those speculative sales for income;
anything the publisher makes on additional rights sales is pure profit. It may
be reasonable for a writer to split this profit with the publisher if the writer
is unable to exploit these additional rights, although this is the exception.
Anything more is, well, piracy.
an eye out for the skull and crossbones.
The two incidents described at the beginning of this article came at the authors
out of the fog. In both incidents, someone came across the website itself and
found the infringements. Web searches can be a more powerful, more certain, and
more efficient tool than relying upon the denizens of the Rumor Mill (http://www.speculations.com/rumormill),
although we’re a rough and ready crew, ready to board and scuttle any Internet
pirate’s ship. Free web search software, such as WebFerret and Copernic (both
for Windows), does an excellent job finding specific phrases. Once every three
months, or more often if possible, search for your titles, for unique phrases
and character names, and for your own name.
course, if you see what you believe to be an infringement of someone else’s
copyright, let the author know. Don’t take action yourself without facts.
Groundless accusations of copyright infringement can result in the accuser
paying the wrongly accused party’s legal fees,
which could well be far higher than a mid-list writer would earn over the
life of a novel.
the pirates below the waterline.
While it is often polite to write a letter or message demanding that the pirate
stop the infringement, such a shot across the bow seldom suffices. The next step
is complaining to someone with authority over the infringer’s Internet
service providers, such as GeoCities, claim that they will not take action for
copyright infringement unless the holder sends a copy of the copyright
registration to GeoCities. Don’t believe it. What these providers really mean
is that they will not intervene in cases of disputed copyright ownership, such
as Captain Brazennads’ style of piracy. If there is no question of copyright
ownership, as with Captain Bigbluebeard, the service provider will often sink
the pirate when writers either send a demand letter by fax or mail, or have an
attorney contact the service provider. This may be as simple as removing the
infringing document itself. The service provider will directly contact the
alleged infringer, even if the provider claims that “The complaint is being
processed for further consideration; don’t call us, we’ll call you,” or
other such nonsense.
letter to a service provider might read something like this:
last paragraph of the sample letter both reminds the service provider of its
obligations and fulfills the requirements of the Digital Millenium Copyright
Act. A webpage provider has control over the continuing contents of its pages,
and the terms of service usually state that the provider will exercise that
control. A court will not find copyright infringement unless the plaintiff
proves that the infringer knew of the violation. The explicit notice of the
violation notifies the provider of the infringement and makes it liable—except
if the provider takes steps to control or remove the violation.
This is especially effective against Captain Bigbluebeard’s provider, since
Captain Bigbluebeard cannot contest the writer’s copyright. It may be helpful
against Captain Brazennad’s provider, but it is less likely.
to whom does one send the letter? One of the new requirements of the Digital
Millenium Copyright Act is that all service providers must provide the name,
address, and contact information for its representative who handles allegations
of copyright infringement. The Register of Copyright is the definitive source
for this information, which is posted online
(requires Acrobat Reader, and is not appropriate for PDA use). NSI (http://www.nsi.com)
also keeps a listing, but this listing often does not extend to vanity domains,
and is of suspect timeliness.
does the letter have to go through the mail, thereby taking a week or more. A
faxed transmission is acceptable, and electronic mail that includes a digital
signature is also acceptable. The key is to include all of the information. If
Aunt Claudia, who has never used a computer before in her life, could find the
infringement with the information provided in the letter, the letter is clear
the rules yourself. This is
as much a matter of ethics as a matter of law. Writers should be scrupulous in
the way they treat other writers’ work. While “he did it, too” is not a
defense to infringement, it is a mitigating circumstance that will reduce the
damages awarded. What goes around, comes around: If Writer A does not treat
Writer B’s intellectual property as worth very much, Infringer’s attorney
will present evidence of that to reduce Writer A’s damages at trial.
are not powerless against Internet pirates. Understanding (and finding) the
problem is the first step; reacting appropriately is the second. Simple
precautions with your work and standing up for yourself will steady your ship.
You should seek a copyright attorney’s assistance for anything that goes
beyond this article.
Tasini v. New York Times, ____ U.S. ____ (2001) thoroughly
refuted this theory. For procedural reasons, I don’t expect a complete
resolution before 2004.
See Mayhew v. Allsup, 166 F.3d 821 (6th Cir. 1999) (discussing the
definition of “publication”).
17 U.S.C. § 204(a).
Effects Assocs. v. Cohen, 908 F.2d 555, 556 (9th Cir. 1990).
Some contracts purport to automatically revert rights to the author if the
publisher enters bankruptcy. Such a clause is meaningless; the Bankruptcy
Code strikes out those clauses. See 11 U.S.C. §§ 523, 562. The bankruptcy
trustee’s decision to allow the rights to revert is discretionary, and not
controlled by the contract language.
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994).
See Sony Corp. of America v. Universal City Studios, 464 U.S. 417,
435–46 (1981) and 17 U.S.C. § 512.