Anthropic Burped…
There Is Movement… May Mean Nothing…
Most of you know that Kris and I and WMG Publishing have a lot of tittles in the Anthropic settlement. And I do mean a lot. And the expectation of any kind of payment is pretty much on the bottom of any reality. But some folks who know a lot more than I do are saying that payments are in process and it could be as soon as September 17th.
Yup, and pigs really can fly.
But today, Kris and I both got emails from Anthropic on books that were opted out. Disney, in their not caring at all about creators, opted out all the Marvel books and Kris and I wrote the X-Men novelization of the first movie and I wrote another X-Men novel, two Spider-Man novels, and an Iron Man novel. I knew that, but claimed them anyway, so this is no surprise.
But here is what my form letter from Anthropic said…
First it had my claim number at the top (one of them) and then it had this…
| We received your claim in the Anthropic Copyright Settlement. Your claim currently includes works which have been opted out of the Settlement. If any rightsholder opted out a work, then that work is opted out for all rightsholders of the work.
The works below have been opted out. You will not receive a payment for these works, but you are not releasing any claims with respect to them. |
| Opted Out Works on Your Claim |
| Copyright Number | Title |
|---|---|
| TX0005253099 | X-Men |
| TX0005383764 | X-Men |
———————-
Well, the word that sort of shocked me was “payments” and then this letter itself. Clearly the secret master, wait, that is “Special Master” is working through all this. Kris got the same letter about the X-Men novel and I got another one about the Spider-Man books.
So here it is in August and there is movement and a mention of payments.
I’m still betting pigs don’t fly.
But something is happening, the appeals do not appear to stop the payment process, so we shall see. The letters sure were a surprise.
8 Comments
Vincent Zandri
There were no author appeals following the July 20 final approval. They gave authors up to August 19 to appeal. Nobody did, so those pigs are indeed gonna fly. Now am I gonna get the 3k per book? Let’s see just how far those pigs can fly without crashing! Lol
dwsmith
Vincent, in theory the first round of payments will be about 2/3 of the total,with another payment coming later in the fall and a final one distributing all that is left to everyone. Total might get to 3K or so per book.
I’m interested in how the special master divides up the anthologies. Especially the ones where half the table of contents is dead, the publisher is dead, the editor is dead. I wonder how many estates got into this and how the total will be divided up among those of us who did claim.
Vincent zandri
Hey Dean man,
Yeah, I’m aware of the split in payments…one in late 26 and other late 27… which seems dumb to me. It;s Anthropic. Just pay it out all at once. To avoid the latter concern over rights…and it is truly a concern…I provided them with letters of reversion of rights. In my mind, those should hold water, but who the hell knows? None of us will know until a check arrives.
C.E. Petit
Vincent, I wasn’t in the room — they wouldn’t want me in the room! — so I can only offer probable considerations.
It is typical that in a large (mid-eight figures and up) settlement negotiated while summary judgment positions are clear, the settlement fund is not paid in all at once. There are both administrative and legal reasons for this, but the combination of three things usually gets involved:
1. The variance of the “damages” that might be awarded after trial on a per-class-member basis (the greater the variance, the greater the probability that spreading out payments into the settlement fund and from the settlement fund makes sense)
2. The probability of serious objectors and/or competing litigation and/or appeals, all considered at the time the settlement is being negotiated; the greater the probability, the greater the incentive to everyone to spread things out
3. The availability of insurance to fund the settlement, with less available insurance meaning greater tendency to spread things out (and this case asserts multiple intentional acts, not “negligence,” and any insurance otherwise available will have Problems, with a capital P and that rhymes with T and that comes before U and that stands for Uninsurability)
So, again, whether it’s the best thing for authors or not, this is a typical payment structure for both funding the settlement and disbursing the funds. One non-intellectual-property matter I was involved in a few years back spread things over six years, with annual contributions and payouts, and barely got a pause to reflect out of anyone who handles class actions.
The immoral of the story is to never pay attention to the initial statement of a class settlement’s value, and most especially not to treat it as a single lump sum. Neither is usually very accurate.
Chong Go
That’s messed up. It seems like the exemption clause should be the other way around.
C.E. Petit
This is informed commentary, not legal advice for any particular situation. If it was legal advice, there would have been an invoice.
This is one of those instances in which the unique aspects of copyright get subordinated to some unique aspects of civil procedure that are designed primarily for other kinds of mass actions (consumer fraud, asbestos/talc/whatever exposure, defective products, certain kinds of civil rights violations — Brown v. Board of Education of Topeka, KS was a class action). But those are the rules for class actions, so when author interests and copyright interests get crammed in, things get… counterintuitive.
The problem is that a copyright infringement is against the whole copyright, but the exclusive rights held by various parties — primarily publishers and authors, remembering the coauthors too, but sometimes illustrators, book packagers, and various lowlifes I hope you never encounter; and that’s just for books! — are separate (now, anyway, it wasn’t always this way in the US). In this instance, the publisher (or, as in Dean and Kris’s instance, a media licensor) is choosing not to participate in this particular settlement, and claims to own an exclusive right.† Too, that exclusive right is partly a creature of the publishing contract(s); not entirely, but partly; and Tarzan plays an important role in understanding why. That, however, could — and does — fill whole books. The rights at issue are also creatures of failures to enforce antitrust law since the Paramount Theatres decision three quarters of a century ago, but Halloween approacheth and this isn’t the place to scare everyone.
Federal Rule of Civil Procedure 23 governs class actions of this nature (there’s a separate modification for shareholder derivative actions). It’s pretty short, and has lots of vague terms, that have been both filled in by the courts and left to individual judicial discretion. Even when the parties formally make a decision that “opting out of this (b)(3) class action settlement is work by work, not party by party,” the judge must review that decision for fairness. That’s why those of us who’ve done class litigation tend to call what happened in May a “fairness hearing,” even though it may be captioned a “final approval hearing.” Of course, “fairness” isn’t exactly a term with a clear definition, and it may (or may not) relate to how individual class members fare but always relates to how the class as a whole fares.
Copyright law gives rise to the cause of action — the reason for filing suit. Once it’s filed as a class action, the specific procedural rules for class actions tend to take over. That’s what has happened here: A choice had to be made by the counsel who negotiated the settlement (who are under intense court supervision) regarding what the scope of “opting out” would be. Without a choice of some kind, the settlement might fail the “superiority” and “predominance” requirements, and would certainly be much more difficult to administer. That this isn’t the choice that in the best of all possible author-friendly worlds might have been made only makes it subject to more lawyerly wrangling — not unrealistic, not inherently unfair.
† Whether the publisher/media licensor is correct is much less certain than they bloviate. Worse, it’s extremely fact-bound. It is also for another time, another forum, and moremoremore attorneys’ fees.
dwsmith
Thank you, CE!! Wonderful stuff to help smart writers at least understand the complex situations around copyright. Thank you for spending the time on that. Wow.
Chong Go
>but Halloween approacheth and this isn’t the place to scare everyone.
Lol. Thanks for all the details on this. I guess it is something that, without a cutoff, could be argued until the legal fees ate up all the profits and a few estates as well.