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Career changing Legal

A crash course in copyright law, part 3 (exceptions)

A crash course in copyright law, part 3 (exceptions)

What are some exceptions to copyright infringement cases?

So, when is it all right?

Purdue University offers a terrific and very readable summary of the main known exceptions to copyright infringement claims.

Note: the law changes in every area. This blog is no substitute for talking directly with an experienced copyright attorney!

Fair Use

For the fair use defense, Purdue outlines four basic factors:

Purpose and character

Some specifics favor fair use. These include nonprofit, educational, and personal usages. Plus there are those which represent a potential tipping point.

These include teaching, research, scholarship, criticism, commentary, and news reporting. And there are those which favor needing permission. These include commercial, entertainment, and for-profit uses.

Hence, a nonprofit’s research is more likely to be fair use than a for-profit enterprise’s commercial use. Hence the for-profit business should seek the copyright holder’s permission.

Nature of work

To favor fair use, it should be a fact and/or published. But to favor needing permission, it should be a fiction and/or unpublished. E. g. It’s more likely to be fair use if you repeat a published fact about dinosaurs. Whereas you more likely need permission for an unpublished novel about vampires.

Amount

Small and insignificant bits of copying are more likely to be fair use than large ones representing a work’s heart. As a result, those are more likely to require permission.

Hence, if I copy the character of Millicent Bulstrode, then the character is minor and small. But this does not necessarily mean JK Rowling won’t sue me. Still, copying Hermione Granger is another matter entirely.

Market Effect

You’re more likely to be in the fair use realm if:

  • Licensing/permissions are unavailable or there is no major impact,
  • There is limited/restricted access to the work, or
  • The user or institution owns a legal copy.

But it’s different if there is a major impact, or licensing/permissions are readily available. Or the work has worldwide availability, or there is repeated or long-term use. Then the scale slides to requiring permission. Profit and sales are not an element to this cause of action. Although selling the copied article, particularly multiple instances of it, can place the act into the ‘requires permission’ camp.

Face to Face Instruction

According to Purdue,

The traditional classroom or face-to-face instruction is when the instructor and the students of a nonprofit educational institution are in a place devoted to instruction and the teaching and learning take place at the same time. In this setting all performances and displays of a work are allowed.

Requirements:

  1. All materials must be legally acquired.
  2. Teaching activities must take place in a classroom or a similar place devoted to instruction.

Exceptions: Virtual Instruction

Like face-to-face instruction allowance, virtual instruction generally gets a pass, per Purdue University. However, there are some specifics. For example, the class must be a regular offering in the curriculum.

What about Parody?

The American Bar Association notes the United States Supreme Court treats parody and satire separately. But the ABA feels it’s a distinction without much of a difference. Both are mockery. But satire is often more like commentary than outright mimicry. For the ABA, and particularly when a work has both elements, the difference matters less. Although copyright holders might be more inclined to license satire rather than parody. This is because parody is pretty much a knockoff by definition.

Commentary generally falls under fair use. That commentary can be amusing or not, satirical or not. Copying generally isn’t fair use. But amusement and exaggeration blurs that line.

The best advice I can give you is: don’t make your work into a copyright test case.

In other words: be original!

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Career changing Legal

A crash course in copyright law, part 2

A crash course in copyright law, part 2

Want to learn more about copyright law?

How about infringement?

We are artists and that means we are copyright holders, even if we never assert our rights and never file with the copyright office. According to American copyright law, you own it if you made it. You don’t have to mail it yourself.

Infringement

However, I will only talk about American law. If you assert copyright in another country, the law will most likely differ. Furthermore, if you have any questions, ask me in the comments section. I will try to research and answer you in a timely fashion. Or ask a copyright attorney. This area, like many areas of the law, has nuances and there can be changes. This blog is no substitute for good advice from an experienced lawyer. If you think you need to protect your rights, then do so properly. And that means hiring an attorney.

The United States Code

According to Title 17 of the United States Code:

§ 501. Infringement of copyright

(a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be. For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a).

As used in this subsection, the term “anyone” includes any State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity. Any State, and any such instrumentality, officer, or employee, shall be subject to the provisions of this title in the same manner and to the same extent as any nongovernmental entity.

But what the heck does that all mean?

The American Bar Association explains it better. It publishes a Young Lawyers series intended to help newly minted lawyers understand the nuances of complicated sections of practice. So the ABA explains:

An action for copyright infringement may arise where a third party violates one or more of the exclusive rights granted to copyright owners.  To establish infringement, the plaintiff must prove:  “(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.”

Ownership of a valid copyright consists of:  “(1) originality in the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work, such as to permit a claim of copyright; (4) compliance with applicable statutory formalities; and (5) (if the plaintiff is not the author) a transfer of rights or other relationship between the author and the plaintiff so as to constitute the plaintiff as the valid copyright claimant.”  A copyright registration certificate from the Copyright Office serves as prima facie evidence of elements (1) through (4).  If the defendant rebuts the plaintiff’s prima facie evidence, then the above elements of valid copyright ownership become essential to the plaintiff’s case.

So what is the ABA is saying? Registration with the US Copyright office isn’t necessary to successfully bring an infringement claim. But it’s awfully helpful.

If you think your work might be infringed upon, if you feel it is a danger and you are concerned about it, then get some peace of mind and register it with the US Copyright Office.

Categories
Career changing Legal

A crash course in copyright law, part 1

A crash course in copyright

It’s time for a crash course in copyright law. Don’t worry; no one is going to make you practice law.

Seriously, you’re good.

Me, on the other hand? I’m a retired lawyer, admitted to the New York state bar, 1986. I never worked in the copyright field. However, I have read plenty about it, and of course I have my own legal training and experiences to fall back on. If you have questions, I will try to answer them. Or contact a copyright attorney if you know one, and ask! Your questions won’t offend me.

Disclaimer

Do not infer or imply representation. If you’ve got a copyright issue, and you’re defending, or you think you should bring a lawsuit, I urge you to get legal representation as soon as possible.

American Copyright Law

For the purposes of these blog posts, I will only look at American law. The law differs outside the United States, it will be different. Copyright law is Federal, so jurisdiction rests with the Federal courts. It is a civil matter; no one goes to jail for copyright infringement.

Copyright Search

The United States Copyright Office exists as a part of the Library of Congress, founded in 1870. Want to find out if something has a copyright? Click here and be sure to select Other Search Options. If you think your search will pull up a lot of records, select 100 records per page from the pull-down menu to the left. Make sure to be as specific as possible, but you might need to go less specific in order to be truly diligent. For example, a search for Sally Field’s character, Sister Bertrille, might not bring up anything. A search for Bertrille might give you something, but a better search would be for the television program the character comes from, The Flying Nun. Here’s the copyright for the theme song to that series.

But most people could guess that Field’s role or at least the series has or had some form of copyright. But what, exactly, is copyright?

The Elements of Copyright

According to the US Copyright Office,

Copyright is a form of protection provided by the laws of the United States (title 17, U.S.Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.

Per Section 106 of the Copyright Act of 1967, a copyright holder can:

  • reproduce the work in copies or phonorecords
  • prepare derivative works based upon the work
  • distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
  • perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
  • display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work
  • perform the work publicly (in the case of sound recordings) by means of a digital audio transmission

Hence copyright holders have any number of rights in their own works. Can they allow others to use them? Absolutely! We call that a license.

When do copyrights expire?

Not surprisingly, the US Copyright Office has something to say about that.

Works Created on or after January 1, 1978 The law automatically protects a work that is created and fixed in a tangible medium of expression on or after January 1, 1978, from the moment of its creation and gives it a term lasting for the author’s life plus an additional 70 years.

and …

Works in Existence but Not Published or Copyrighted on January 1, 1978 The law automatically gives federal copyright protection to works that were created but neither published nor registered before January 1, 1978. The duration of copyright in these works is generally computed the same way as for works created on or after January 1, 1978: life plus 70 years or 95 or 120 years, depending on the nature of authorship. However, all works in this category are guaranteed at least 25 years of statutory protection. The law specifies that in no case would copyright in a work in this category have expired before December 31, 2002. In addition, if a work in this category was published before that date, the term extends another 45 years, through the end of 2047.

What does this mean? Well, the short answer is that you generally do better to publish your work! After all, you can’t expect anyone to guard against copying it if they don’t know it exists. The other important takeaway: you don’t need to assert copyright or mail it yourself or anything like that. Does it help to register your work? Absolutely! If you ever doubt have concerns, do the legwork (or have your lawyer do so), and register your work.

More of the crash course later ….

Categories
Career changing Covers

Color Theory, Part 4

Color Theory, Part 4

Color Theory, Part 4 – If you are interested in creating your own covers, or if you are a part of selecting your cover in your published work, you need to understand color theory.

Janet-Gershen-Siegel-Adventures-in-Career-Changing--CheatSheet4 Blue

What does it mean when you add blue to your cover?

The Basics

Color theory is the associations and impressions we get when confronted with a certain color or set of colors. Color matters.

Blue and its Family of Colors

Blue works as a lot of people’s favorite color. We associate it with both the navy and sadness. It is the color of both the sea and the sky. It is also has associations with the Union during the Civil War. A blue moon is a rarity. Winners get blue ribbons. We also associate blue with the Democratic Party, and with business, particularly conservative business attire. But it is also the color of blue jeans. Well-known blue books include the Uniform System of Legal Citation, Kelley’s used automobile values, and the Handbook of United States Coins.

Violet and purple are not exactly the same color, although we often use them as synonyms. Violet skews bluer; purple skews redder. And purple reminds us of gay pride, grapes, and Barney the dinosaur. Purple prose is overly flowery and ornate; we tend to see it as over the top. Both shades remind us of flowers; purple is more reminiscent of wine and cranberries.

Green is the color of early spring and Ireland. It is inextricably associated with both St. Patrick’s Day and Christmas, and is often associated with resurrection in culture, probably because of evergreens. Green reminds us of aliens (little green men!), sickness, and poison, but also limes and mint. It means go and was also the lowest level of terror threat according to Homeland Security.
Add green to your book cover and bring out nature or evoke business, or add purple to connect with gay pride. Or add blue for a conservative look, or to evoke the ocean or sky.

Upshot: Part 4

Colors are going to matter when it comes to your book cover. They can make or break your sales, so choose wisely.

Categories
Career changing Covers

Color Theory, Part 3

Color Theory, Part 3

For color theory, Part 3 – If you want to create your own covers, or if you are a part of selecting your cover in your published work, you need to understand color theory.

What happens when you select a cover color predominantly from the family of yellows?

The Basics of Color Theory, Part 3

Color theory is the associations and impressions we get when confronted with a certain color or set of colors. Color matters.

Yellow and its family of colors

Yellow is a vibrant color but it is rather difficult to see against a white background. If your cover is mainly white, yellow is a poor choice for author or title lettering unless you outline the yellow in a darker color.

We associate yellow with sunshine but also with lemons, which can evoke either cleanliness or a car that just never seems to work right. Yellow can also evoke cowardice and caution. It can also feel like early springtime, particularly in the northeastern United States. This is because two early flowers, forsythia and daffodils, are primarily yellow in color.

It can also remind us of taxis and urban living. But it can also remind us of Buddhist monks’ saffron robes, or even the spice saffron itself, which is rare and expensive. In science fiction, it signifies an intermediate alert, a cause for concern but not out and out panic. But we also use an amber alert for locating missing children.

Gold

Gold more closely aligns with wealth and winning. We may also associate it with wedding rings and even old-fashioned false teeth. Gold is scarce. However, adding it can feel a bit much, like gilding the lily, as opposed to illuminating a sacred manuscript. Gold has ancient associations with wealth, and was reportedly used in the Ark of the Covenant.

Add yellow to your book cover for a splash of sunshine or wealth, or scarcity, depending on the shade.

Categories
Career changing Covers

Color Theory, Part 2

Color Theory, Part 2

Color Theory, Part 2 – If you want to create your own covers, or if you are a part of selecting your cover in your published work, you need to understand color theory.

The Basics of Color Theory, Part 2

Color theory is the associations and impressions we get when confronted with a certain color or set of colors. Color matters.

Red and its Family of Colors

Red tends to be a bold, standout color. It works with a lot of other colors. It can also help if you’ve got a mainly black, white, or gray image for your cover. Red lettering can work with that background. However, if the value (brightness) of the red is the same as the gray behind it, you may find it feels like the color is vibrating.

Red means stop or anger or ripeness. It can also feel like excitement or danger, as it can remind us of everything from sports cars to raspberries to stop signs. The Twilight book covers in particular rely on red accents to great effect.

Pink

Pink comes across as a softer version of red. We often associate it with health and ballerinas, but also baby blankets and Barbie dolls. Its current association with femininity is fairly recent; until about the Second World War, it was considered more of a masculine color.

Color Theory, Part 2: Orange

Orange is more likely to be associated with hunters or the harvest or prisons, but it can also be associated with traffic safety. It can remind us of sunshine and, of course, oranges, but also the toxin, Agent Orange.

Copper

Closely related copper associates best with pennies or cookware more than anything else. However, we also associate it with bronze (about 90% of bronze consists of copper), and so we may link to the idea of third place medals.

Choose a color from the red family for your cover or for its accents, and expect some strong associations but also a cover that can really stand out.

Categories
Career changing Covers

Color Theory

Color Theory

If you are interested in creating your own covers, or if you are a part of selecting your cover in your published work, you need to understand something about color theory.

The Basics

Color theory is the associations and impressions we get when confronted with a certain color or set of colors. Color matters.

A Wheel and Some Hex

Your computer generates colors based on combinations of basic colors. These are written in RGB (red-green-blue) or hexadecimal. Once you know the code, you can replicate any color.

Using RGB or hex is particularly important as you replicate your colors and branding across multiple platforms. What looks like pure fire engine red on my monitor may appear more like brick or tomato to you. But at least with a uniform color code, I can get it right if I need to copy the red from your page or cover.

Imaging programs such as GIMP and Adobe InDesign both have color picker tools which look like eye droppers. Select the tool, click on the color you want to replicate, and the tool will grab the correct hex or RGB coded color.

Color Theory: How Does Color Make Us Feel?

It’s just like a lot of the marketing issues surrounding books and book covers. That is, a lot of this will depend upon the buyer persona or demographic associated with the most sales of your genre.

Let’s say you are a science fiction writer. Then a lot of your readership is probably going to skew male. Although if you write LGBT science fiction, you may find more female readers in the mix. Either way, how do they feel about colors? Furthermore, if you mainly have an American readership, their associations with colors will differ from if your ideal readers are Canadian or Swedish.

Color matters.

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Career changing Community Management Opinion

Community Management – Handling Yourself as a Good Netizen

Handling Yourself as a Good Netizen

Are you a good netizen?

I have been managing Able2know for over fourteen years.

It is a generalized Q & A website and the members are all volunteers. I have learned a few things about handling yourself online during this time.

Chill Out

  1. There are few emergencies online. Take your time. I have found, if I am in a hot hurry to respond, itching to answer, it usually means I am getting obsessive.
  2. When it’s really nutty, step away from the keyboard. I suppose this is a corollary to the first one. Furthermore, I pull back when it gets too crazy-making, or try to figure out what else may be bothering me, e. g. I haven’t worked out yet, something at home is annoying me, etc. Being online, and being annoyed, does not equal that something online caused the annoyance.

Be Clear

  1. All we have are words (emoticons do nearly nothing).
    Handling Yourself as a Good Netizen
    what are words for? (Photo credit: Darwin Bell)

    I like to make my words count, and actually mean exactly, 100%, what I write, but not everyone hits that degree of precision in their communications. I’ve learned to cut about a 10% degree of slack.

  2. Not everyone gets you. You might be hysterically funny in person, but bomb online, Netizen. Or you might feel you’re a gifted writer, but you write to the wrong audience. You may be hip for your crowd, but hopelessly out of it in another. This is not, really, a personal thing. You can either waste your time trying to get everyone to love you or you can recognize that you didn’t convert one person and move on from there. Choose the latter; it’ll save your sanity every time.

Keep Chilling Out

  1. Be Zen. E. g. I’ve found the old, “oh, you go first” kind of thing smooths the way a lot. I am not saying to not have your say and let everyone else win all the time. It’s just, ya kinda pick the hill you wanna die on, e. g. what’s really important. Stick to those guns. The others, not so much. E. g. getting into a shouting match and kicked off a site due to your hatred of the Designated Hitter Rule – even on a sports or baseball site – falls in the category of you’re probably overreacting and being really, really silly. I doubt that that is a hill most people would try want to die on. But defending your beliefs, fighting prejudice, etc.? Those are probably better hills.
  2. And the corollary to #5: controversial topics are controversial for a reason. They get under people’s skin and make them squirm. Be nice; don’t do that all the time. So try to engage people in other ways, Netizen. There are plenty of people on Able2know who argue a lot about politics. I am not a fan of arguing politics. But we also get together and play Fantasy Baseball (talk about your Designated Hitter Rule). Or we swap recipes, or pet stories, or the like. But then, when a forum member gets sick or becomes bereaved, people who just argued till they were blue in the face turn around. And they virtually hug and offer tributes, prayers (or positive, healing thoughts) and words of comfort. And this user multidimensionality warms the heart. Over the years, people have gotten better at it. If someone’s really bothering you, it’s possible that, in other contexts, you’d get along. You might want to see if you can find some common ground, and other contexts.

Sing Along with Elsa and Let. It. Go.

  1. Know when to stop, or even let others have the last word. When I am really angry, I usually just withdraw. However, this isn’t a surrender. Instead, I’m tired and life’s too short. You do not become a smaller, or less worthwhile person, and you haven’t lost (whatever that really means, particularly on the Internet, fer chrissakes) if you walk away and wash your hands of things. Netizen, you are entitled to call it quits on an argument or discussion.

Finally, I hope you learn from my insanity and my mistakes. Life’s too short to let it get to you too much!

Categories
Book Reviews Career changing Personal Work

Writing

Writing

Writing rules.

Writing
The Nano Rhino says… (Photo credit: mpclemens)

The Before Time, Where There was Weeping and Wailing, and Gnashing of Teeth

One aspect of my career transition consists of writing a lot more.

And I found that I had truly missed it.

Sure, I had typed tons and tons of stuff before. But a lot of it covered such thrilling topics as documenting queries, or making lists of terms used by public service officers. It very rarely encompassed topics with wit, or style. And I certainly did not have permission to make up any of it.

NaNoWriMo, I Love You

I had known about NaNoWriMo for a while, but hadn’t thought I had anything to offer.

In 2013, I woke up with an idea during the last week of October. I created a wiki and an outline for it, and signed up.

And I wrote. And wrote.

Then about halfway through the month, I had finished. By the end of the month, the story was edited.

Now the Real Fun Begins

Because, yes, it was published.

It was and is the right thing to do, and the right path.

In addition, it feels fun. And it feels exciting. It feels like it’s a fit.

Furthermore, it does not feel like something where I’m stretching to fit into someone else’s idea, or parallel someone else’s vision. And I certainly don’t feel like I was going through the motions. In addition, it does not feel like ho-hum, same old-same old.

Furthermore, it releases a pent-up inner artist who was shouted down by pretty much everyone I knew for way, way too long in my life. And that is exceptionally freeing.

It feels right. And it feels honest. So it feels free. It feels good.

And it feels like it’s about damned time already.

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Book Reviews Career changing

Book Review: The Elements of Style, by Strunk, White, and Kalman

Book Review: The Elements of Style, by Strunk, White, and Kalman

As a part of the Quinnipiac social media writing class, we were required to purchase and reference The Elements of Style (illustrated) by William Strunk, E. B. White, and Maira Kalman.

Rather than just reference this work, I read it from cover to cover. And it turned out to be an easy read, considerably more comprehensive and better than I had remembered.

Simple Rules

Simple rules emerge in clear and concise prose which never talks down to the reader. It contains all of the rules that so many people should known, and should have learned years ago. Yet these days it seems that so many people just plain don’t know.

Case in point: forming possessives. Therefore, on Page 1 the guide just says, “Form the possessive singular of nouns by adding ‘s.”

That’s it, no more.

Information about punctuation remains equally succinct. Hence on Page 15, the guide says,

“A colon tells the reader that what follows is closely related to the preceding clause. The colon has more effect than the comma, less power to separate than the semicolon, and more formality than the dash.”

Easy to follow and remember, the above two sentences tell more about colons, semicolons, and dashes than I think I learned in most of my formal education.

Furthermore, language comes across as something knowable, with rules and formal logic. This is instead of what English can sometimes seem like, e. g. a messy stew of words from all over the world. The work gives the English language structure and predictability. Both of these things make it a lot easier to know the rules.

Book Review: The Elements of Style, by Strunk, White, and Kalman
The Elements of Style (illustrated)

There is but one thing left to say, and the Elements of Style certainly says it.

Write better.

Review: 5/5 stars.