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Copyright and Quoting Others

October 6th, 2015 . by Peggy

Copyright and Quoting OthersA number of years ago, I worked with a client who was quoting others for inspiration in her book, and as a matter of professionalism, we investigated what the legal impact of this might be. Here’s a brief summary of what was discovered on our trip down Copyright Alley.

Now, let me pause here for the part where I remind you, once again, that nothing you read in my blog (or any other blog) is a substitute for quality legal advice. What you are about to read is meant as a series of interesting (dare I suggest entertaining?) observations, and nothing more. I can’t be held responsible for anything anyone may or may not do with stuff they read here. In fact, let us say that this post is meant to encourage Authors in a similar situation to seek legal advice, and avoid any sleepless nights.

 The good news is that almost all of what we discovered worked in the author’s favour, and not against her. But you may find some of this surprising.

– An American lawyer friend that I asked agreed that anybody who bothers to spend the time and money to sue for using snippets of their wisdom is generally considered to be lacking in foresight. (I believe his exact word was “Dork”.) Most people are happy to be quoted, because it helps to raise their media profile.

– If you use less than 300 words in the total work, and less than 150 words in a stream, you’re covered under “Fair Use“.

– Fair Use mostly applies to teaching and other non-profit situations, but can be used for writing that is done for profit if he amount of text quoted is small.

– If you are using material prior to 1923, you’re after copyright expiration, which is much safer but still not foolproof.

– In the case of my client, the author was quoting small amounts from a large number of people, so this ratio helped to augment her Fair Use argument, as she’s not selectively targeting any one person.

– Song lyrics and music are a very dangerous and convoluted area, and it’s just best to just not go there. (Don’t quote Lennon!)

– Quoting someone for their cleverness or wisdom is not the same as quoting their theories or other intellectual property. My client was just using uplifting quotes about life philosophy, which any bright person might also know,  and not quoting their scientific observations or commenting on their technology. Big difference.

– To be on the safe side, always credit the speaker immediately after you quote their words, not in an appendix or other reference later in the book.

– Writers quoting “wise words” rather than technology or statistics still generally seem to be more concerned with being attacked for accuracy in their wording and attributions than permissions. This was unexpected, but observed in each place that we sought a precedent.

– You can’t copyright your spoken words, and a variety of other items related to titles or marketing, but you can copyright complete sections of a book or other written work, as in a chapter or explanation of a theory. In other words, it’s been put out there by another person, clearly crediting them in the public eye, so you can’t copy that.

– There’s a surprising lack of precedents out there for this sort of thing. I referred to three books chock full of quotes from a variety of people, and there were no permissions published or other items to address copyright whatsoever. They are all rightly more concerned with protecting their copyright on their own books and layout with the quotes in them than with the quotes themselves.

– Lawyers who deal with this sort of thing spend most of their time worrying about academic and corporate intellectual property issues, and this kind of thing rarely, if ever, comes up. I admit that out of anything we discovered, this reassured me the most.

In the end, my client decided on a compromise as her strategic approach. She sent each “quotee” a flattering personal letter asking for their permission to use their quote, with a specific response date. She made sure that there was a line on the copyright page that thanked all the people that have been quoted. As far as I know, there was not a single negative response, although the Office of the Dalai Lama did respond with a beautiful letter, granting official permission!

She also modified her disclaimer in the front of the book to include a statement about the efforts she made to avert copyright problems, and a promise to remove any from future editions if there is an objection that is resolved in good faith between herself and the objector. Talk about good karma! I don’t think she could do much better than that – even the lawyer friend agreed.

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Kindle’s New Payment System

June 30th, 2015 . by Peggy

kdpselectscreenshot1While some authors are a little freaked out about Amazon’s announcement about Kindle’s new payment system for books in the Kindle Select program, which now pays Authors based on the number of pages read rather than for each time the book is downloaded, most of us are just confused about what it will really mean.

This is all based on Amazon’s highly successful Kindle Select program, by which Kindle Authors opt-in to a sort of revenue share based on their books that are borrowed from the program. Kindle Select membership is $9.99 per month at the time of writing, a fantastic deal for the reader. For that price, if you own a Kindle-branded device, you can borrow and read all the books you like, in Kindle format, for free. Nothing, zip, nada. Authors who allow their books to be lent out in this way then receive a share of the gross revenue of Kindle Select memberships. I personally know Authors who make more each month from the fund than they do from their standard book sales.

The announcement sent out on June 15th says that the fund split by authors is being “topped up” from $3M USD to $10.8M USD. Smokin’. But they tempered this news with a simple and poorly-explained caveat: Kindle’s new payment system will pay you based on the number of pages that get actually read, not the number of times your book is borrowed.

Here is their explanation of the new payment plan:

Under this new model, the amount an author earns will be determined by their share of total pages read rather than their share of total qualified borrows. Here are a few examples illustrating how the fund will be paid out. For simplicity, assume the fund is $10M and that 100,000,000 total pages were read in the month:

•       The author of a 100 page book which was borrowed and read completely 100 times would earn $1,000 ($10 million multiplied by 10,000 pages for this author divided by 100,000,000 total pages).

•       The author of a 200 page book which was borrowed and read completely 100 times would earn $2,000 ($10 million multiplied by 20,000 pages for this author divided by 100,000,000 total pages).

•       The author of a 200 page book which was borrowed 100 times but only read half way through on average would earn $1,000 ($10 million multiplied by 10,000 pages for this author divided by 100,000,000 total pages).

I can see the logic in this: for those whose books have great cover designs or back cover copy, and their book gets “borrowed”, but perhaps fails to deliver in the content area, they have been paid the same amount I have, when my book is read in its entirety. I get it – this is the ultimate meritocracy – we should get paid based on quality, not quantity.

Some will make this criticism: then authors will do anything to keep readers hooked. They will pander, they will have nothing but cliffhangers, they will write for the lowest common denominator is an ultra-competitive world that measures most-not-best.

I would strongly suggest that we are already there! Authors are trained to keep readers hooked! Yes, we talk about it all the time in writing classes, over coffee in writing groups, and we ourselves buy books that promise to teach us how to do it better. It’s already our measure of success. All this new system does it make it easier to see how well we’re doing at it, and harder to tell fish stories.

The only real way to judge this system will be to look at the checks as they come in. If it means that I earn less, then I suppose I’d better get better at giving readers what they want. If it means I earn more, then I suppose that means I’ve been missing out all along. And if nothing changes, I’ll do what’s needed to shake it up. Again.

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The Gallery System: Art and Books in Revolution

March 24th, 2014 . by Peggy

This is a short speech I wrote several years ago, while living on Gabriola Island, in the San Juan islands near Nanaimo, BC. Watching art and books in revolution, and surrounded by indie artists, I saw a parallel between my own work as an indie author and their work as independent artists, each selling from their own studios on a small rock in the middle of the ocean. The impression of those vibrant artists has not waned in the years since, and I found this essay while clearing out a file cabinet last weekend. I hope you see a similar revolution happening around you.

ID-100214827As a young fine arts student studying to be a painter and sketch artist, I was coached by well-meaning teachers and professors who wanted all of their students to achieve commercial success. There’s nothing more rewarding for an art teacher than to witness their student actually pay a mortgage with the revenue from their creative efforts. But now, as an adult with a generous amount of business experience behind me, I can now see where Artists, and Authors, are being ripped off.

I often compare the current traditional bookselling system, where a big publisher buys work from a writer and distributes it through large chain stores, to the way art sales are managed by galleries. What I call “The Gallery System” is how a gallery finds marketable painters, sculptors, and other visual artists that fit the commercial definition of good art (whatever that means), and put their paintings on display in the well-lit large front window of a gallery. Passers-by feel confirmed in buying work they don’t have any deep feelings about, because of the artificial validation that buying from a large gallery gives them. We are robbing the next generation of the ability to think critically about art and literature.

Here’s the really naughty part: when the painting sells, the artist only takes a small portion of the profit. I know many wonderful artists that have altered their work to make it more palatable to this market, thereby not only sacrificing their own artistic integrity, but also denying a hungry art-buying public the opportunity to discover and experience something new.

Galleries (read: bookstores) plunge the work of the artist directly into an extremely competitive market, often without the benefit of additional insight for the consumer. Try attending a gallery exhibit opening sometime, and notice the similarities between that and a book signing. But now, living in an “art-friendly” community, I’m extremely pleased to see that the art (and book) buyer recognizes the cachet of visiting the studio of a working artist – and buying direct.

This revolution is well underway in the arts community. And more than the way money changes hands is being affected: a wider variety of mediums are gaining mainstream recognition, and artists are spreading their creative wings. A previously-unidentified audience for non-traditional work is clearly out there doing some serious shopping. The line between art and craft is more blurry than ever. And the art of the people, folk art, is no longer segregated into a movement.

It is very clear that self-publishing, and the selling of books directly from the author to the consumer, is the manifestation of this same spirit in the publishing world. Authors now have access to the same tools that large publishing houses do. They are thinking of their books as tools for marketing their businesses and other products. Fine printing gives credibility to their statements. And they are receiving equal critical recognition to any other author.

What about balancing business needs with artistic integrity? This is achieved more easily now than ever, because the author retains all the control. Their work is no longer subject to commercial critics that stifle creativity early in the process. The way this works is because of and old axiom, which I see proven again and again: art cannot exist in a vacuum. We must write so that others can read. Otherwise, our writing is a purely selfish act. Outside of writing for self-exploration, which makes us better writers regardless, we must write for an audience. By considering our audience, which is the second rule of quality writing*, we automatically satisfy the needs of an increasingly clever book buyer. The integrity of our writing is inherent, and intelligent readers will buy all they can get their hands on.

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