My Attitude Toward Helping With Copyright…

I Am Not a Lawyer…

And would never give legal advice. But I am a long-term professional fiction writer of over 50 years and I know copyright because (duh) that is how I make all my money.

So when I say something to inform about copyright, I say what I say not as a lawyer, but in the interest of helping writers learn and avoid issues.

A super nice person who has forgotten more of the legal fine details of copyrght that I know often responds to my posts.

I need to be clear here. Court cases and attorneys are cheap when you need their help to consult or look over a contract. But get involved with a legal case and the costs go through the roof, even if you did nothing wrong. Let me repeat that… EVEN IF YOU DID NOTHING WRONG.

Just having to deal with a court case can get stupidly expensive. For example, Kris and I had a frivolous suit filed against us and it never got to any real level because it was so frivolous that it was dismissed by the judge. Our attorney’s fees were over $130,000 just to get it dismissed. Of course the person who brought the case is required to pay our attorney’s fees now and our insurance picked up the rest.

So with that in mind, I am going to repost here a couple of comments I got from this great attorney about my copyright posts. In general, you do not want to get into court on either side of the equation unless it can’t be helped.

Comment from C.E. about my post on Song Lyrics…

I’m going to gently disagree with Dean on one thing: Song lyrics.

Dean may well be right that it’s not worth the hassle. Keep in mind that the Nashville-centered part of the music portion of the entertainment industry is very impressed with its own rectitude and righteousness, and has a miserable track record in actually winning fully-litigated claims of “infringement by taking a portion” outside of its own federal circuit (the Sixth). The large law firms, however, are backed by behemoth entities that dwarf NYC-based commercial publishers, and can successfully make an author’s life miserable even when they’re flat wrong.

That said, there are critical factors in whether quotation of a song lyric qualifies as fair use, ranging from the amount (the entirety of “Money for Nothing”? the chorus, or one verse? the catch-phraseish “Money ain’t for nothin’ and your chicks for free”?) to the parody exception (think Weird Al Yankovic) to whether the quotation includes either a proper name or the title of the song. Not to mention where things are been asserted and/or heard — what pass for the “rules” are different in Las Vegas than in Memphis than in Orlando.

Dean’s advice to “just say no” to quoting song lyrics avoids the hassle, but it’s an overstatement to say that it represents “the law” as a copyright law professor would analyze it. (And even they won’t agree at the edges, because it’s a very circumstances-of-the-alleged-infringement-specific inquiry upon which reasonable minds — and unreasonable minds, can and do differ.) By no means am I suggesting that authors should therefore feel free to routinely embed an epigraph in each chapter of a couplet from contemporary popular music, or quote four lines of a chorus in the middle of a bar scene as being played by the band/on a jukebox (if anybody still knows what a jukebox is), because that might not be a very good business decision. It’s not, however, a “can never legally do without explicit permission” prohibition.

As I said in my response to C.E in the comments, he is exactly right. And if you have more money than god and don’t mind paying big law to defend you, go right ahead and see what you can get away with on the fringes. Trust me, I took law professor’s exams with questions that have little to do with reality, but only the law in theory. Can’t imagine going there in the real world.

In another comment about my comment of doing collections for copyright protection and statutory damages if filed timely, C.E. said…

A couple of ridiculously technical notes on this area. The zero-level thing to be aware of is that US Copyright Office declarations of what copyright law is/is not are not themselves law. They’re what’s called “persuasive authority,” and many courts will follow them — but not always, and certainly not always at the extremes. See, e.g., Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) (Supreme Court rejects five different technical assertions by the Copyright Office of “what the law of copyright is” in a pro-author decision).

One example is the issue of exactly what is covered by a group registration versus the registration of a collection; the Copyright Office circular is, to put it rather bluntly, wrong in its implication that only the entire collection is protected. It is instead a remedies snarl on how many measures of statutory damages can be assessed if the entire collection is copied — just one measure for the collection, or one measure for each infringed story/photograph/painting/article? However, a group or collection registration does suffice to individually protect each element, and allow filing suit and winning on liability if one one out of 34 stories is actually infringed. Depending upon which circuit one is in, etc. — this is not something to trust either a nonspecialist attorney or general guidebooks/treatises on; it’s very fact-specific.

One other thing that the timing of registration affects is whether an award of attorneys’ fees is available. If the infringement takes place “before” the effective date of registration, no attorneys’ fees can be assessed under § 505 (although, in a class action like the just-announced settlement against Anthropic, they might become due under Fed. R. Civ. Proc. 23). The “effective date of registration” is the earliest of:
• The date of the application for registration, if the registration fee and deposit were timely (although even the deposit requirement is questionable);
• For most “published” works,† the date of publication if the application was made within 90 days of the official date of publication; or
• For certain non-US works first published outside the US, the later of that date of publication or completion of statutory requirements in those nations (for example, in the UK the date on which the mandatory deposit copy was sent to the British Museum).

Just to make all of this more fun, the whole business about “marking” no longer being required that Dean referred to was announced in early 1988, effective for any “publication” (not just the first one) on March 1, 1989, and has a convoluted “cure” procedure applying only when a third party like a commercial publisher failed to mark properly. And is even more dubious in Latin America.

† Naturally, the Copyright Act does not define what “published” means, and refuses to use “made available to the public” (the Berne Convention term) without actually saying what that distinction is.

Thank you, C.E. for all the time spent on this. Really appreciated.

I hope reading through this, you get an understanding of how amazingly complex copyright is, but also to function as a writer you don’t need to know it at the level C.E. does. But you need to know what will keep you out of as many problems as you can.

My stupidly simple theory is never steal anyone else’s work. Period.  Just write your own. And if you are starting out, register everything in a timely manner.

And let me be very clear on my comment on the Tom Lehrer stupidity. Tom can not assign his copyright into the public domain and do anything but have his estate make a promise they will not sue for infringement. He CAN NOT get rid of copyright. And he can not go in and tell others who have vested interests in his work that they now can not sue.

Simply put, as I like to do, avoiding all the edges where lawyers make massive amounts of money, DO NOT USE Tom Lehrer lyrics or songs no matter what the 97 year old man said.  That copyright is still valid and owned for 70 more years.