Category: EndSheet Newsletter

Copyright Infringement and Substantial Similarity

What Constitutes Copyright Infringement?

‘Fair use’ is an affirmative defense to copyright infringement. If a publisher believes that content she wants to publish uses and is substantially similar to third party materials, she must either obtain a clearance or satisfy herself that use is permissible under a competent fair use analysis. Before she evaluates whether the use of third party materials is ‘fair use’, however, there must be infringement!

The two basic requirements for copyright infringement are (i) the accused infringer copying the original (first) work through access, and (ii) the allegedly infringing work being “substantially similar” to the original work.

Copying is proven up by showing that the purported infringer took the necessary steps to reproduce original copyrighted expression in his or her work, with or without intent based on access.[ See, e.g., Paul Goldstein, Goldstein on Copyright § 9.2 and §9.2.1 (3rd Ed., Supp. 2013).] Access is not an issue which courts typically discuss at length. Although the fact of access must be reviewed and confirmed, it’s an element of infringement often met without undue burden.

The issue of substantial similarity is tougher and often grayer. In the infringement context, the question is whether there has been enough of a taking so as to constitute an “improper appropriation” [See, Melville B. Nimmer and David Nimmer, Nimmer on Copyright, 4 §13.03[A] (2014) (“Nimmer”). ] of the claimant’s work – more specifically, the analysis focuses on whether the allegedly infringing work reproduces protected expression from the original work.

Evaluating Substantial Similarity in the Literary Context. Courts and intellectual property lawyers utilize different analyses in order to credibly determine and opine on whether, by reason of substantial similarity between two works, a copyright holder’s exclusive rights are violated. Individual analysis is driven by the media or product at issue.

It is one thing to compare two literary works, different to evaluate audio sampling, and altogether different to compare source and object codes for computer software. Generalizations are also just that. A competent evaluation of whether two works are substantially similar requires a careful, thorough, detailed evaluation of both works. Substantial similarity is a question of detailed fact!

Professors Nimmers articulate two approaches or methods, which apply to the literary context, to help evaluate the existence (or not) of substantial similarity. They are respected and utilized by both the copyright bar and courts adjudicating infringement cases. They don’t answer the question, but rather guide the necessary detailed evaluation. These approaches are known as “comprehensive non-literal similarity” and fragmented literal similarity.”[ See, Nimmer at 4§13.03 [A][1] and [2].]

The essence of comprehensive nonliteral similarity is ascertaining whether or not “the fundamental essence or structure of one work is duplicated in another”[ Id. at 4§13.03 [A][1].]. As an example, there may be similarity in structure, organization, and other protected expression, although not exact or verbatim, and along with that there has been some taking of the claimant’s overall macro work or portion of it.

In contrast, fragmented literal similarity addresses the factual scenario, “[w]here there is virtually, though not necessarily, complete word for word”[ Id. at 4§13.03 [A][2].] replication between the claimant’s and the alleged infringer’s works. As an example, where the infringer has used an offensive quantity of exact words, phrases, sentences, paragraphs, graphics or other protected expression. As to what constitutes the taking of an offensive quantity of protected expression, such quantity might be far less with a highly creative artistic work, than with a more factual, informational or commercial work.[ Id. at 4§13.03 [A][2][a]. The nature of the work at issue is also expressly statutorily articulated as one of several factors when evaluating the fair use of a copyrighted work. 17 U.S.C.A. § 107(2).]

Summary

Prior to evaluating fair use, in the context of prepublication manuscript review or advising as to infringement, one should determine whether the allegedly infringing work is substantially similar to the original (first) work.

Evaluating substantial similarity in the literary context requires a careful review of both works, under the broad approaches of comprehensive nonliteral similarity and fragmented literal similarity. ‘Careful’ means close review and inventorying of each alleged similarity in the two works.

If substantial similarity is deemed to exist, the question then becomes whether the defense of ‘fair use’ under Section 107 of the Copyright Act is applicable.

Jon R. Tandler is an Associate Member of PubWest and practices intellectual property, publishing and business law. He is a partner of Ryley Carlock & Applewhite, Denver, Colorado and Phoenix, Arizona, with email address jtandler@rcalaw.com.

This article comments on a general legal topic and is not legal advice.

References/Citations

1. See, e.g., Paul Goldstein, Goldstein on Copyright § 9.2 and §9.2.1 (3rd Ed., Supp. 2013).
2. See, Melville B. Nimmer and David Nimmer, Nimmer on Copyright, 4 §13.03[A] (2014) (“Nimmer”).
3. See, Nimmer at 4§13.03 [A][1] and [2].
4. Id. at 4§13.03 [A][1].
5. Id. at 4§13.03 [A][2].
6. Id. at 4§13.03 [A][2][a]. The nature of the work at issue is also expressly statutorily articulated as one of several factors when evaluating the fair use of a copyrighted work. 17 U.S.C.A. § 107(2).

 

 

PubWest Announces New Job Seekers Program

PubWest’s new Job Seekers program offers PubWest Individual Members a way to attract the attention of potential employers.

Individual Members are welcome to submit a brief overview of their skills and work experience along with the positions they are seeking. PubWest will post their Job Seekers profile on pubwest.org and run their profile in one of the association’s weekly News & Events newsletters, which reaches thousands of publishing professionals.

Learn more on the Job Seekers program page.

Foreword Reviews “BookCon”, the BEA Consumer Day

by Allyce Amidon, Associate Editor, Foreword Reviews

Arriving at the Jacob Javits Convention Center on Saturday morning, we got our first clue that BookCon was going to be absolute, wonderful, book-loving mayhem: the line to get in stretched as far as the eye could see.BEA BookCon 2014

As soon as the doors opened at 9am, our aisle (2900) was completely flooded with readers. Even hours later, the show floor was still so packed it was impossible to casually stroll through it. Many of the BookCon booths were selling copies of their books, some autographed by the authors, for $10-$12. Everyone who stopped by our booth seemed very pleased that we were offering complimentary copies of Foreword Reviews. The result was that we ran through our entire stock (six cases of magazines) by 10:30am.

Most of the attendees seemed to be general readers instead of industry professionals, with an encouragingly high number of teens and young adults who were all excited to be there. Our creative director mentioned, “I hope when my kids get older they’re as excited about books as these kids are.” There was nowhere you could walk in Javits without running into the lines for the BookCon panels, which looped through the entire convention center on multiple floors, with attendees lining up well in advance of the start times.BEA BookCon 2014

The BookCon kickoff party and special panel on Friday evening for This is Where I Leave You was packed and thoroughly enjoyable. We were treated to several sneak peeks of the movie juxtaposed with the same passages read aloud by author Jonathan Tropper, with comments from director Shawn Levy and stars Tina Fey and Jason Bateman. Next year, BookCon will be expanded to a two-day event. If this year was any indication, it should be another huge success.

Foreword Reviews is a book trade magazine that reviews books. The magazine is distributed quarterly to 7,500 librarians and booksellers and is also available at most Barnes & Noble newsstands and by subscription. Foreword employs a full time staff of seven, in addition to a handful of freelance editors and nearly one hundred reviewers. The company calls home the third level of a historic building, The Old Cigar Box Factory, located in Downtown Traverse City, overlooking the Boardman River. Learn more at www.forewordreviews.com.

Wish You Were There! A Postcard from BookExpo America

e-EndSheet Seeking Editors, Reporters

The e-EndSheet is the quarterly newsletter of PubWest covering member news and updates from the industry that will affect small and medium publishers. We’re looking for your stories—and your help. Even a few hours of your time considering story ideas, editing copy, and gathering art will help us provide the best information for you. Contact Kent Watson if you’ve got a few hours of time available this spring. 

 

Moving the Sales Needle

Marketing and Publicity Spotlight: Lorna Garano, Book Publicist

By Julienne Bennett

Lorna Garano started her career as a book publicist at New Harbinger Press in Oakland. Five years ago she struck out on her own, keeping New Harbinger as a client and adding such publishers as Counterpoint Press, John Wiley & Sons, the New Press, and AlterNet.org. I sat down with my former colleague to talk about her work.

Tell us a little about yourself. How long have you been a publicist and what kind of books do you specialize in?
I have been a publicist for a little over ten years (so, I was 15 when I started—just kidding). I work in a diverse range of nonfiction categories, including politics, health, self-help, biography, and arts and culture.

How has book publicity changed over the course of your career?
It has changed in much the same way that the culture as a whole has changed. Much more happens online, and gone are the days when only a few reviewers or tastemakers influenced which books were read and which languished. Because of the web, authors have to be much more involved in creating media instead of just waiting to be the subject of it, whether it’s blogging, making a book trailer, working social media, or—ideally—all of the above.

With the shift in the media landscape, some publishers report that traditional media outlets are harder and harder to book and many no longer affect sales. Do you have any advice for publishers trying to garner publicity that will “move the sales needle”?
It really depends on the book. I don’t think we should get stuck in either/or thinking. Traditional media is still important. Online media is so essential that it has become the primary or even sole media source for many people. Also, the two interact in ways that are often hard to predict and very exciting. Know your audience. Where in the media landscape do they live? Find out and go there and don’t be wedded to only scoring A-list media placements if that’s not where your readers are. 

In a typical book publicity campaign, what percentage is done online?
Again, it depends on the book. Generally, I would say that half of an average campaign unfolds online.

How important is the role of social media in publicity campaigns? Are there some simple things publishers can do to increase their social media presence?
When used thoughtfully, social media can really pay off, especially in the long run. I like to think of Facebook, Twitter, and other platforms as ways to create exponential buzz. They provide instant access to consumers and allow authors and publishers to communicate directly with readers. I think the crucial point with social media is that you have to be strategic. Don’t get hung up on reaching a certain number of followers, friends, etc., but make it a point to find the right ones. Also, remember that it is an interactive medium. Try to spark discussion and provoke thought. Ask questions. Invite opinions. This is not a static, one-way environment, so don’t use any social media platform like you would an ad space.

Editor’s note: You can reach Lorna by e-mail at lornagarano@
gmail.com or on her website www.lornagarano.com.

A New Approach for Backlist Titles

By Michael Campbell

I recently had a conversation with my old friend Amanda Mecke, who was previously VP of subsidiary rights at Bantam Dell. I wanted to talk about her involvement with a new venture, Gluejar, whose mission is to make more backlist books available as e-books to read and share, freely and legally.

Amanda, how long have you been in this business?
I’ve worked for 30 years in book publishing, mostly in subsidiary rights. I am therefore delighted to be working now with a startup company, Gluejar, to solve rights issues and free up books to be available as e-books.

When did you start buying digital books?
I wasn’t an early adopter, as I’m not a fan of e-ink, and I wanted to wait until a multiuse device became available. I first tested the Nook and Kindle apps on my desktop around January 2010, and now I’m reading and buying books on a color tablet.

What are some of the frustrations about e-books?
As a former rights director, I’m dismayed at how many backlist titles aren’t available as e-books. Even though the retail market is exploding, many of my favorite authors are still not available, so I can’t recommend them to friends. Word of mouth is still the most popular way of sharing recommendations for books, even more so in this age of social media.

I thought Google’s project to make public domain works available took care of that? Or Project Gutenberg?
There are still plenty of books that are not public domain, where the rights holders have difficulty converting them to e-books.

I know Amazon recently hired Nancy Pearl to do just that. But her discoveries will be Amazon exclusive e-books.

Gluejar aims to create a place where readers, authors, publishers, and librarians can share and discover backlist e-books.

What are the issues in converting backlist?
First are the cost issues. The biggest single problem with older books that don’t have digital files is that they must be scanned. To create an ePub file so the book is truly an e-book, with flowing text, requires proofreading by a copyeditor who has some familiarity with the original. So there is some upfront expense.

But a bigger problem, one that I’m familiar with as a sub rights director, is that the rights might be in limbo. If the original contract is unclear, both author and publisher may be unable to go forward with an e-book, even if they both want one. Negotiating a new contract is often too time-consuming and expensive. Or they may not wish to jeopardize future possibilities.

The Gluejar model allows publisher and author to “agree to disagree” and simply put the ePub file out there as a one-off digital edition—and with both receiving some upfront income. A letter of agreement will suffice, and neither gives up any commercial rights, such as a revised or enhanced edition in the future.

What’s Gluejar’s role?
Gluejar offers a space for publishers and authors to crowdsource funds to convert titles into e-books. The crowd-funding model is becoming familiar from sites that raise money for startups and philanthropies, such as Kickstarter and Crowdrise.

This is a way to help independent publishers and their authors leverage and protect their assets in the face of competition from inexpensive self-published new authors, as well as brand-name authors from media giants, and new e-books being published by huge retailers themselves.

Each title will be released using a prepaid Creative Commons license. The rights holder (publisher, author, or both) sets the cost to release the book. When a campaign to raise the amount of their goal succeeds, the rights holders reward the supporters by releasing an “open access” e-book.

I’m not familiar with Creative Commons licensing. Who else is using it?
Artists, photographers, and writers who want credit for their work without getting ongoing royalties or licensing fees. All of Wikipedia releases its content using the Creative Commons license. Images are available using Creative Commons on Flickr, Google Image, and other sites.

Is anyone else using it in a book-publishing context?
Cory Doctorow and Lawrence Lessig are two authors who release free-to-reader versions of their books using a Creative Commons license, even though the books are also sold in commercial editions.

In “ungluing” a book with Gluejar, the rights holders will use a fee-based, non-commercial (no one can resell it), non-royalty (no distribution fees), non-exclusive, media-neutral (no DRM) Creative Commons license, which Gluejar has chosen for financial and ethical reasons. In addition to contributing to prepaid fees for e-books, supporters also want to give to a public good. Creative Commons vouches for this ethic as a well-established advocate for gadget-neutral open access, which will level the electronic playing field while protecting copyright. 

So the e-book is free?
The e-book that Gluejar creates will be free to readers forever. You can’t withdraw the book from a Creative Commons license. However, no one can profit from it by selling it. Commercial rights to future enhanced e-books, adaptations, paperbacks and hardcover editions remain with the rights holders. The up-front cash payment to release the e-book will both pay the rent now and subsidize the future. Publishers and authors can garner an immediate profit from already published books.

How does it work?
Our crowd-funding website, Unglue.it, is now in alpha. It allows readers to pledge support to favorite authors and titles, as well as to search for special interests and give e-books to friends and libraries. Like Kickstarter.com and IndieGoGO.com, it will take a commission on successful campaigns, one that is much smaller than retail or wholesale distribution fees. Gluejar is NOT a publisher or a retailer.

So as a publisher, I could use Gluejar to “unglue” the book by raising the cost of scanning and editing, even a new cover and marketing. Since the book will become available as a free e-book, I should factor into my Gluejar target a profit for me, and a profit for the author – an upfront flat fee, instead of an ongoing royalty.
Exactly.

Other than a flat fee upfront, how else could giving away a free book generate profit for me?
A widely available Creative Commons e-book could be a no-cost perpetual marketing machine, using one free title to promote all of an author’s backlist, selling other print editions and e-books without any retail or subscription barriers.

Amanda, I know you care about libraries as much or more than any other publishing person I know. How do libraries factor in here?
On average, 50% of a book’s readers will access it through a library. Free, open access e-books mean more books will be more affordable for more libraries, and more authors who are not already celebrities will be introduced to new readers. As libraries’ budgets continue to be stretched, free e-books will become incredibly important to them.

How does a free e-book find its way into libraries?
The publisher will simply deposit one ePub file (complete with meta-data) into Internet Archive and Open Library, and it will be available in every library system in the world, as well as in Google Editions, and thus through good independent bookstores. Publishers can also make the book available as a free download from Amazon and Barnes & Noble.

So sum it up for me.
Gluejar takes me back to my very first job in publishing, working in rights for Harcourt Brace. Back then, much of our great hardcover backlist just wasn’t in print anymore. I was busy making it available by selling trade paperback reissue rights. Here at Gluejar, I get to help do the same thing: make great books available to libraries, students, teachers, book club members, and readers in general.

Editor’s note: You can reach Amanda Mecke at amecke@gluejar.com