The Know Your Rights Blog

Generative AI Training Battles Lost And Won: Bartz V. Anthropic

Mon, 22 Sep 2025 02:51:10 GMT

If you haven’t caught this bit of news , Anthropic, the company behind the AI chatbot Claude, has gotten itself into murky water when it comes to what is and isn’t okay to use to train its AI.

We thought we’d break it down a little for you, as it’s particularly important to the small independent book publishers and authors that we love!

To sum it up, in this most recent lawsuit over the use of books to train generative AI, U.S. District Judge William Alsup of San Francisco determined that it was lawful to use books to train AI models BUT ONLY IF the books were acquired lawfully. During the proceedings, it was discovered that this massive AI company bypassed all the legal channels and opted instead to download millions of books off of pirating websites such as Library Genesis and PiLiMI. Because the books were NOT acquired lawfully, the court determined that this does NOT qualify as fair use and Anthropic MUST make restitution. Anthropic is now attempting to settle this class-action copyright lawsuit to the tune of 1.5 billion U.S. dollars, for which the court will determine if that amount is acceptable in the coming days and potentially months.

To add another important detail, as part of the settlement, Anthropic will also be required to destroy all of the books that they originally downloaded, meaning this settlement is not a payment to allow them to use the material, but a settlement for damages. For authors, this means that if they don’t wish to share their book with an AI company for the purpose of training their chatbots, they don’t have to (or they can set the price).

So, why is this such a big deal? We wanted to give our two cents: AI companies like Anthropic are billion dollar companies that are chewing up data and spitting it out faster than chewing gum. They need to ingest thousands and thousands of books to acquire all that data. The thing is, the writers of those books are not billionaires. Most of our clients are small publishers or authors just making an honest living sharing their creative talents with the world. When that talent is used to feed a billion dollar enterprise, it may not seem like a big deal to other people since people want AI to know everything, so it needs to know everything about everything in order for it to do its job, right? If the chatbot is just “reading” the book, how is that different from a person just reading the book?

Well, any individual person who is reading a book (that they bought or borrowed from a legitimate library) is personally gaining that information. Generative AI is “reading” that book in order to remix and regurgitate the information back out to potentially millions of people for a profit. From a business standpoint, of course Anthropic doesn’t want to absorb the time and expense involved to reach out to each individual author for permissions, but there is certainly a better way of going about getting the rights to those books legally. Publishers and authors are pushing for appropriate language in author contracts to allow for opt-in or opt out of training LLMs. And models already exist to legally permit use of content to train generative AI. Check out the new collective license for AI training from the Copyright Clearance Center (CCC) as one such example .

If you are an author and are concerned that your written works may have been used by Anthropic, you can check out more info about the settlement and submit your contact info here . The Author’s Guild also has some great information about this copyright settlement and Frequently Asked Questions about the process, particularly focused on providing authors with the info they need to know to determine if they should be a part of the class-action lawsuit.

We will do our best to keep you posted on the results of this lawsuit settlement, as well as the more than 40 other lawsuits winding through the U.S. court system also revolving around the use of book content in AI training. Until then, Authors: 1, Generative AI: 0!

Content is King, But Who Rules Over AI?

Tue, 13 May 2025 12:00:28 GMT

The Battle for Copyright on the AI Front Continues

The expression "Content is King" has been with us for what seems ages now. Once used in reference to television or other media properties, it now broadly can refer to pretty much any intellectual property. And if you've paid attention at all to the topics covered in this blog, you know that intellectual property has value, and is protected here in the United States by several items written into the U.S. code (U.S. law): patent, trade, and copyright law.

With books, movies, magazines, and the entirety of company-based and creator-made content available on the internet around the globe, there can be little doubt of the value of content. In February of this year, a policy brief asked that the UK government find a path towards supporting AI industries while still ensuring that creators are fairly compensated for their work . In March, The Atlantic published a report showing thousands of books, research articles, and more content that Meta scraped from the online repository LibGen. And the European Union as a governing body has been working to come up with a body of laws to help govern the use of content and AI itself.

Lawmakers and copyright officials here in the U.S. have likewise been busy. Last week, the U.S. Copyright Office released a (pre-publication) third part of its study on copyright and AI * . This third installment focuses specifically on generative AI, and how the acquisition of materials used to train these models intersects with current copyright law in the U.S.

Of particular note, the report states: "...The Copyright Act grants copyright owners a set of exclusive rights: to reproduce, distribute, publicly perform, and publicly display their works, as well as the right to prepare derivative works. Establishing a prima facie** case of infringement requires two elements: "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.” Creating and deploying a generative AI system using copyright-protected material involves multiple acts that, absent a license or other defense, may infringe one or more rights."

It's really not that much of a surprise that the U.S. Copyright Office's report squarely defends the rights of copyright holders, especially given the global conversations up until now. There even exists precedent for some AI companies obtaining permissions for content or otherwise utilizing material that is clearly in the public domain. Publishers and agents have also been hard at work creating licensing language that could be used to make sure that authors and artists retain their rights and being fairly compensated for their work if it is used in ANY commercially-derivative manner--including training AI.

Big tech companies who have built AI models are seeking profitable ways forward like to claim that content is "too expensive" to train their models, even as the expense of simply using an AI chatbot is growing . But this argument only helps to underscore the value of that creative content. The path forward to compensate creators for the use of their content in LLMs seems very murky.

The middle ground does exist, however. Even the U.S. Copyright Office mentions this in part 2 of their report on AI , stating that copyright-ability of AI-generated content is possible to the extent that human-authored prompts ultimately assisted in the creation of the new work (so, AI was utilized more as a tool rather than wholly generating the content). That said, these "hybrid" AI authorships will be considered by copyright examiners on a case-by-case basis.

Content continues its reign, but the battle over copyright and AI-generated works continues.

*After the release of the preliminary report, the Registrar of Copyrights was dismissed by the current administration. How this will affect the release of the final report is unclear at the present time.

**Prima facie is Latin for "at first sight." In U.S. Copyright law, it means that the owner of the copyright appears to be entitled to all of the rights in and to their work based on the two elements described in the text above.

Indie Publishing in Focus

Thu, 01 May 2025 20:37:53 GMT

In an Ever-Changing Industry, IBPA Helps to Connect the Dots for Indies

2025 has already been a dramatic year for the publishing industry. From growing book challenges and attempts at bans in US schools and libraries, to the current administration's attempt to squelch DEI initiatives at major companies and universities, and the explosive growth of AI and LLMs which seem to threaten authorship on a global scale, everyone involved in the life cycle of a book is keeping a wary eye out for the next blow.

But there are some bright spots. The grassroots initiative We Are Stronger Than Censorship have successfully raised enough funds to put 2 books back into communities affected by book bans for every 1 book that was removed from circulation. The US Copyright Office released part 2 of its lengthy study on AI and underscored the need for human authorship in order for a work to receive copyright protection . And the Independent Book Publishers Association (IBPA) has recently voiced its unwavering commitment to foster freedom of expression and promotion of publishing efforts that support diversity, equity, and inclusion .

Here at Gryphon Publishing Consulting, we are long-time fans of independent publishing. We know that indie publishers continue to produce the most interesting, inspiring, and yes--sometimes necessarily disruptive--books out there. We continue to do our part to lift voices, to advocate for others, and to fight for what is right. To that end, we are excited to attend IBPA's Publishing University 2025 in less than two weeks. We hope that whether you are an indie publisher just starting out, an established publisher, an author publisher, or someone who is providing essential support to the publishing industry by marketing, editing, designing, or selling books, you will check out the amazing sessions that have been planned and join us in the Twin Cities!

If you do decide to attend, drop us a line and we'll look forward to meeting you there!

How I Found Fair Use in an Art Gallery

mj@gryphonpublishing.co (Mary Jo Courchesne) — Mon, 24 Mar 2025 23:39:05 GMT

What exactly does it mean to transform a work?

Hear a familiar piece of music in a commercial? It was probably licensed through ASCAP, BMI, or SESAC for use in the ad. That photo on the billboard by the highway? If it wasn’t a photograph specifically staged for the campaign, then the ad agency had to obtain permission to use it in that huge format.

But what about using something without permission? Is there any legal way to do so? As we’ve discussed previously here on the Know Your Rights blog, there exists in US copyright law the doctrine of Fair Use which provides reuse of copyrighted material without permission under certain circumstances. In an infringement case, a judge will consider the four factors of Fair Use together, but the first factor is often weighed a bit more heavily (along with the fourth factor).

The first factor of Fair Use revolves around the “purpose and character” of the use. A judge will consider whether the new work that incorporates the original is meant to be for commercial or non-commercial use, and also whether that new work is sufficiently transformative. If the new use is non-commercial and transformative, then the new work is more likely to be thought of as Fair Use.

Why am I talking about Fair Use again on this blog and so soon after the last post? Let’s take a field trip to find out!

For my birthday last year, I went to a local art gallery with a friend and took some time to NOT think about work for a while. We spent a number of hours wandering through rooms full of art from different eras, in different mediums, and each eliciting different emotional responses. After wandering into a gallery full of digital art (think: a lot of moving visual elements and flashing lights), my friend informed me she was moving on to the next room because the optical assault was proving too much for her. I told her I’d catch up with her soon and continued my wander in the gallery, curious about what other art could be there.

One work that drew me in was an interactive piece that encouraged patrons to type in a website URL, and then the artist’s programmed algorithm would spit out a digital color block version of the website. So I typed in the URL of this website and the artist’s algorithm showed spat out this:

Pretty, huh?

So. I know that this website and blog where you’re reading my words is copyrighted to me, and therefore, is mine to do with as I see fit. Nobody else can use my website’s content without my permission. Although one could argue that I at least passively implied permission for the artist to use my content in creating a new digital work, I’d also argue that the new art based on my website was a Fair Use because it is non-commercial (so the artist wasn’t going to sell copies of it or collect a fee specifically for people to look at the graphic representation of my specific website), and perhaps more importantly, transformative (nobody else would be able to glean the information you are reading here by looking at the image above).

Taking a look at the other factors, one could argue that factor 2 (the nature of the copyrighted work) might weigh against Fair Use as my website is creative as it contains my own writing, and despite the usage of facts and some licensed images, the overall arrangement and presentation are my own, highly copyrightable, things. Factor 3 (the amount of the original work used in relation to the whole) might be harder to determine as we don’t know how much of my website was used in generating the artwork, but for the sake of argument, I’d say that only the homepage as used, so that small portion in relation to the whole is rather small. And factor 4 (the effect on the market for the original work) would weigh in favor of Fair Use as the artwork was temporary, was not monetized, and such a graphic representation certainly would NOT replace all of the information you get by coming to this website and reading my words.

On the other hand, if a large language model AI scrapes my website to train LLMs about Fair Use, we know from the recent ruling in the Thompson Reuters v. Ross Intelligence case that this use would NOT be considered a Fair Use , but there are a lot of companies that are still going to try (the most recent being Meta scraping books to feed its LibGen LLM ).

Does your company need an expert to come to teach your staff about fair use, permissions, or another copyright concept? Check out our courses or talk to us about creating a custom lecture for your staff !

Just What is Fair Use?

Thu, 13 Feb 2025 18:36:27 GMT

Sometimes, when you’re writing a book, you find just the right quote, passage, or photo that you want to use that will bring that something special to your work that you felt you were missing.

But seeking permission to reuse that material might seem an onerous task, or a waste of time. Should you just rely on Fair Use and continue with that third-party material? What steps can you take to protect yourself from infringement?

As you already may know, U.S. Copyright law exists to help promote creativity and innovation by providing a framework for protecting a creator's interest in (and all benefits from) their work. It is a creator's sole right to sell, distribute, or create derivatives of their work. Infringement occurs when another party uses, reprints, or adapts another person's work as their own without first obtaining proper permission.

Fair Use is a “statutory framework” in copyright law . It promotes freedom of expression by allowing for re-use of materials without permission under certain circumstances like news reporting, criticism, teaching, scholarship and research. The Fair Use doctrine requires the evaluation of four factors in determining whether a particular usage is "fair" or not. These factors are:

The Purpose and Character of the Use : The main consideration here is whether the use of the existing material is commercial or for education, as well as whether the new work is transformative. This factor is usually weighed along with the other factors below.
The Nature of the Copyrighted Work : Think of this as how the new work relates to the original. Here, a more creative work is less likely to enjoy protection under fair use than using a factual item. Further, using an unpublished work is less likely to be considered "fair."
Amount and Substantiality of the Portion Used in Relation to the Whole : Here, courts consider the literal amount of the work taken as well as whether the "heart" or the main point of a copyrighted work was taken by the new work.
Effect of the Use on the Potential Market or Value of the Original : So, whether the new work might "take away" sales or perceived value from the original work now or in the future.

Unfortunately, there have not been any bright-line rules that you can apply to Fair Use in terms of number of words or the amount of a work (cropping, alteration, etc.) you can use without permission. Fair Use also becomes particularly difficult to decide when the original work is a song or a poem. This is because songs and poems are more creative and much smaller compositions. The “heart” or essential meaning of these creative works carry more weight that means, if they are borrowed without permission, could be considered an infringement.

So, what does all of this mean for the work you’re creating with third-party content?

You can certainly consider Fair Use when creating your new work, but remember that Fair Use provides a guideline for a judge to decide whether or not your work infringed on an original. It is not an excuse for you to use content without permission, but it is an “affirmative defense” in an infringement suit.

Although all four factors are considered together, the first and fourth factors tend to be weighed more heavily. Each judge will also use previously-decided cases to inform their ruling. It’s that fourth factor that comes into play if your work is meant to be sold for a profit (and of course, many of us are interested in profiting from our work), and your work might also compete against the original work in some way.

All of this said, the U.S. Copyright Office has created a Fair Use Index which aims to provide a convenient way to review case law and help courts (and the public in general) understand the current thoughts on reuse of material under the Fair Use doctrine.

In the end, Fair Use is a personal assessment of risk. Considering the penalties for infringement can result in damages that range from $200 to $150,000 per instance, your best practice may be to either seek permission for the material or find a suitable replacement. Have questions? Book a Fair Use Content Review for your project here .

For more information on Fair Use, review the U.S. Copyright Office’s Fair Use Index or check out this article from the Association of Research Libraries .

Public Domain Has Its Day

Sat, 25 Jan 2025 16:33:00 GMT

Everything Old is New Again!

Back in 2019, a law that extended copyright protections for another 20 years in the US finally hit its expiration date, and a treasure trove of works hit the public domain, meaning that they could be used, adapted, mixed, and re-mixed without further permission. Every year since, January 1 has been known in the copyright world as “Public Domain Day” when new works hit the public domain bricks.

This also makes understanding US Copyright Law limits a wee bit easier to understand. Generally, a creator has federal copyright protection automatically as soon as their work is set in a fixed, tangible medium. This protection lasts for the life of the creator (author) plus 70 years. For corporate entities or pseudonymous works, this protection lasts from the time the work is created in that fixed format for another 95 years from publication or 120 years from creation, whichever comes first.

That said, just because something is in the public domain does not mean that you can use it freely everywhere in the world or for anything you want. Why? Well, different countries have different copyright durations, so even if a work is fair game here in the US, it might still have restrictions in Canada, for example, where some works have had their copyright terms extended in a similar way to what the US did back in at the beginning of the 2000s.

But some of this public domain-ness is sort of staged out. Mickey Mouse is in the public domain but ONLY in his earliest form as Steamboat Willie. The same is true for Winnie the Pooh and Sherlock Holmes. Newcomers in 2025 to this “sort of” public domain include Popeye and Tintin , both of which are released from copyright protections in the US, but public domain is ONLY for their earliest iterations, and ONLY here in the US.

To further complicate the issue, some of these creations are also vigorously guarded under trademark law. It shouldn’t be a surprise that the Disney corporation will be defending the use of “mouse ears” and others of its beloved characters through trademark for years and years to come. And where copyright can expire, trademark is renewable.

Creator beware indeed.

Not sure what is in the public domain, or what you need permission for in your next project? Schedule a consultation with us here !

Who Put the Sub in Subsidiary Rights?

Thu, 05 Dec 2024 16:26:58 GMT

What You Should Know About Subsidiary Rights

Contrary to the images in this post, daily life here at Gryphon Publishing Consulting revolves around publishing rights rather than sub sandwiches or underwater adventures. We help some of our clients obtain rights to re-use content in their publications by researching and negotiating permissions. We help other clients negotiate terms with potential licensing partners when an opportunity arises for a translation or other rights deal. But how do you know what rights you have in your book, and just what ARE subsidiary rights, anyway?

Before we go any further, some background: you might have heard us mention copyright one or two times around here. It’s important to understand what copyright does in order to understand rights. Copyright in the United States is codified under federal law, and grants the author or creator certain interests (or rights) in their creative work as soon as it is placed in a fixed medium (written down or typed). Copyright protects rights such as the right to reproduce, distribute, sell, create derivatives, or display work in all forms of media and in all languages throughout the world. No other person or company can do anything with your creative work without your permission!

So what happens when an author works to get a publishing contract from a publisher? Well, the author (sometimes with an agent) negotiates the right for that publisher to print (or “publish”) their book on their behalf. The publishing contract is the result of a license for those specific rights to print, reproduce, and distribute the work in book form.

While it’s true that a publishing contract may also contain a LOT of language about other rights that go along with the book (like the right to create an audio version, or to translate it into another language), all of the rights in a publishing contract are generally negotiable. We always recommend that if an author is considering holding back some rights from a publisher, they should think about what rights they can reasonably exercise on their own. A publisher might have more contacts both inside and outside of the publishing industry than an author does, so it might make more sense to allow the publisher to “hold” those rights for the author, and execute on them as they can (in exchange for a royalty to the author, of course).

To recap: we know that the author has created a work that has specific rights attached to it from the moment that they write words down. A literary agent is representing the author and their rights to a publisher. A publisher engages the author in a contract for certain rights.

But what are “Subsidiary” rights?

Subsidiary rights are forms of rights in a book that are part of that book contract, and essentially represent ALL of the myriad ways that an author can sell, make a new version, mix, and re-mix their book into different packages. These subsidiary rights include granting permissions to re-use parts of the book to another party, to translate and distribute the book in new languages, publishing the book in an entirely new format, or creating new products based on the book.

What do we mean? Say your book has a fun character illustrated within the book’s pages. The character might look good on a mug. Or perhaps the adventure the character has in the book could be gamified. So, a subsidiary right called a merchandising right could be licensed with a company to produce a mug, and another company might license the right to create a game. If your publisher doesn’t create an audio version themselves, they might license that right to an audiobook company to produce the audio version of the book. And a publisher overseas might license the right to translate the book into French to print and sell to their readers in France.

Subsidiary rights not only bring in additional income for a book property, but can also act like marketing for the original work. If you’ve ever gone to a movie and then visited your favorite bookstore where you found a copy of a book with a label on it that says “Now a major motion picture!” then you know that the book was likely adapted into that movie by filmmakers who licensed the right to do so. And when you saw the movie and bought the book, you are supporting that author in multiple ways!

Pretty cool, huh?

If you want to learn more about copyright and how to visualize what rights and subsidiary rights are, check out our new Copyright Essentials course here !

Authors, Publishers, and AI – Oh My!

Mon, 04 Nov 2024 14:48:33 GMT

Copyright is intrinsic to publishing, and yet many indie publishers and author publishers don’t think about how copyright laws influence their work on a daily basis, or just how the landscape of copyright is shifting with the development of Artificial Intelligence (AI) tools. In the United States and most of the western world, copyright vests with the author or creator as soon as a work is set in a fixed format. In the case of books, this is as soon as those words hit the screen or are inscribed on paper, or when a photographer presses the shutter on their camera or smartphone.

We’ve seen when content is widely available online, the assumption is sometimes made that such content is “free” to use, when it actually requires a proper permission license. Authors and publishers have made that erroneous leap in logic from time to time, but fortunately, we are seeing a greater awareness of copyright from all sectors of the creative economy now that some companies (sometimes AI-driven and sometimes not) have been accused of “scraping” materials for use in new products promoted as existing “for the greater good of all.”

It falls to all of us to keep watch over how new companies are using our copyrighted content, and encourage our legislators to help provide protections to keep our livelihoods viable and profitable. To that end, I wrote a summary of some things that I am keeping an eye on along with my colleagues at the Independent Book Publishers Association (IBPA). Check out my guest post on the Copyright Alliance’s website here , and let us know in the comments below what copyright issues are important to YOU!

A New Offer for Gryphon Publishing Consulting Clients: Introducing DropCap Marketplace!

Wed, 23 Oct 2024 18:12:31 GMT

Is your dream to have an internationally published book? Well, you certainly aren't alone!

In fact, we hear this ask commonly enough that we started looking for better solutions. Solutions to get more of the right eyes in front of our clients' literary magic. Solutions that are FAIR - that put the author first, create ideal deals licensing income, and support the components of these agreements on behalf of our self-published and indie authors.

If this sounds like you, then you have most certainly come to the right place. Introducing Gryphon Publishing Consulting & DropCap Marketplace!

Let us tell you, there are a lot of tools for translating, publishing, licensing, and organizing the entire translation licensing process. So, why are we excited about DropCap Marketplace? Well, for starters, it's the real deal when it comes to getting you and your book on the international literary stage. Together we can connect you directly with a global network of rights buyers, editors, and publishers, while consulting you on the best approach for your specific niche, goals, and budget.

One particular DropCap feature that we have fallen in love with for our clients is their proprietary matchmaking algorithm. It's all well and good if you get in front of "some people" with your book, but how do we find the right ones? With Gryphon Publishing Consulting's licensing and negotiating experience, and DropCap Marketplace’s large international network, we make sure your work finds its way to the right people , increasing your chances of making valuable connections and securing international deals.

We are all about simplicity and efficiency in the often complex world of publishing and permissions, and so for us, making sure we were working with a partner who values the same for our clients was paramount. DropCap has created outstanding, simple systems for walking through the international rights process, allowing our clients to focus on what they do best - creating and curating outstanding literary content, while we work on getting their work discovered.

Whether your dream is to have your work translated into multiple languages or perhaps you are seeking to broaden your readership across continents with smart distribution deals, Gryphon Publishing Consulting and DropCap provides the platform, connections, experience, and guidance you need to thrive in the global book market.

Make sure you check out DropCap Marketplace and see what it can do for you! We’re also excited to tell you that Gryphon Publishing Consulting clients receive 10% off of the regular fee for listing their titles on DropCap Marketplace (discount taken at check out). Finally, make sure to schedule a chat with us about your titles and how licensing internationally could play a role in your revenue and reach! Let's make the world your audience!

Is Copyright for Forever?

Fri, 11 Oct 2024 02:26:56 GMT

A Look at Copyright and Contracts

Generally, copyright term in the United States is set at the life of the author plus 70 years (the length varies for corporate, pseudonymous, and work-for-hire creations). This means that an author’s heirs stand to benefit from the intellectual property (the book or “work”) that was created, and that potential revenue generation is one of the primary drivers for authors to get their work published and sold.

When an author contracts their work with a publisher, the publisher will generally have the rights to publish that work for the full term of copyright. These rights–spelled out in the author contract–are technically a license of certain rights that the author has in their work to the publisher, rather than a full transfer of all rights provided by copyright. The contract provides the limitations on the publisher for the “use” of the work, and those rights have a beginning and an end. So even though an author contract states that the rights to publish are transferred to the publisher for the full term of copyright (life of author plus 70 years), it’s still use in a limited scope.

But the author doesn’t *have* to keep their book with one publisher for that long of a term because of certain exceptions provided in the contract or by U.S. copyright law, and once those exceptions are applied, the author can receive their rights back (a “reversion of rights”) and either take their work to another publisher, publish it on their own, or otherwise negotiate other licenses for the work without their original publisher being involved at all. One exception may be found in the author contract itself. Many trade author contracts contain a provision wherein an author can regain their work once the book has been deemed “out of print” for falling below a certain sales threshold. Another exception–provided by U.S. copyright law–allows for the author to request their rights back within a five year period beginning 35 years after the initial publication OR 40 years after the grant of rights, whichever comes first.

Publishing isn’t the only venue where this rights reversion comes into play. Perhaps the most famous (and recent example) of an artist reclaiming all of their rights to their work comes from music icon Taylor Swift. Her recent re-release of her entire catalog under her own label was made possible by a provision in her contract with her former record label that allowed her to do so a mere three years after leaving the label.

Of course, most publishers (and record labels) would LOVE for their authors and creators to stay with them for the long term. In most cases, authors will stay put simply because it is the easier path to be published and continue receiving compensation for their hard work. But copyright is not always for forever, and the door to regaining your copyright is not permanently locked when you know your rights.

If you need help understanding your author contract, let GPC help you by scheduling a contract review with one of our experts.

The Independent Book Publishers Association welcomes Mary Jo to the Board of Directors!

Tue, 09 Jul 2024 16:33:48 GMT

What a Truly Exciting Time to be in Publishing!

Here at Gryphon Publishing Consulting, we are just a teeny tiny fish in the vast ocean of publishing. Like so many members of the publishing industry, we are just making our own path, figuring things out step by step. Just like the actual ocean there are a TON of little guys, but they sometimes don't have their voices heard because they're drowned out by the bigger fish in the room.

But, there are some organizations that make things a little bit easier for everyone in their communities. One such organization is the Independent Book Publishers Association , or IBPA . They foster collaboration and educate on less understood topics. They advocate and they provide resources to be successful. They forge new paths and navigate the often tricky terrain that new businesses in publishing, authors, and creators often face.

We’re pleased to announce that our President, Mary Jo Slazak Courchesne has been appointed to the Board of Directors of the IBPA! Why is this so exciting? For starters, the Independent Book Publishers Association has several parallel values to Gryphon Publishing Consulting , including education, a strong code of ethics, and a commitment to diversity and inclusion in publishing. They also believe in upholding the highest standards in the industry, and making publishing accessible to all. We believe that Mary Jo's core values that she founded Gryphon Publishing Consulting with will help to support the mission and vision of the IBPA to create a better publishing industry for all who choose to work in it.

You can check out more about the Independent Book Publishers Association Board of Directors here!

"MJ Courchesne is the owner and principal consultant of Gryphon Publishing Consulting. She has over 25 years of experience in trade, academic, and direct-response publishing, and specializes in licensing, subsidiary rights, and permissions. MJ served as adjunct professor for 16 years in The George Washington University’s Masters in Professional Studies in the Field of Publishing. She currently serves on the Rights Committee of the Book Industry Study Group (BISG), as secretary for the board of directors for The Big Easy in Buffalo and is a member of the Society of Children’s Books Writers and Illustrators "

We are so fortunate for this opportunity and look forward to working hand in hand with the IBPA for many years to come!

Copyright and Happy Birthday

Fri, 12 Apr 2024 21:51:03 GMT

It wasn't too long ago ( 2016 as a matter of fact ) that you could not sing the song "Happy Birthday" in public, in a movie, or on television without paying a licensing fee to the Warner Chappell Music company. Although the song is sung to another melody long in the public domain ("Good Morning To You"), the origins of the song that we know here in the US is somewhat muddled.

The main issue with any content that is popular, or content that has "been around" for so long that it is in the subconscious of the general population: the assumption is made that the content is "free" to use in whatever way a creator might like. Unfortunately, this assumption also applies to IP online. We've had many clients decide that something they found is "public domain" just because they found it online ( see this post for more information ). However, you know what they say about assumptions, right?!

There's also a very popular rule floating around that states if you crop, flop, or edit an image or illustration, or "only" take a quote from a poem or other piece of literature or otherwise adapt it, then you are "safe" to use the content without permission. This myth generally originates primarily from the educational publishing space, where Fair Use may come into play for specific uses.

One great rule-of-thumb to keep in mind when publishing content anywhere: whether in print, online, or in a recording is to consider whether what you are producing originated with YOU, or if any part of the content came from another source. If the former, then you are ready to publish. But if any of your content has origins elsewhere, it's best to seek permission or enlist some help reviewing whether you need permission .

All of that said, one of my favorite examples of the use of newly-liberated public domain songs like "Happy Birthday" comes from a recent skit on SNL. I won't get into the logistics of licensing and fair use in broadcast in this post, but if you're down for a giggle, I hope you enjoy this humorous look at how using content on a shoestring budget can be employed.

Welcome Back to the Know Your Rights Blog!

Wed, 27 Mar 2024 16:48:56 GMT

Welcome back fellow book lovers, creators, publishers, and institutions!

Welcome to the refreshed Know Your Rights blog, and the all-new Gryphon Publishing Consulting website! 2024 marks the 10th Anniversary of Gryphon Publishing Consulting, LLC, so with that milestone, we’re all about celebrating the independent publishing community and creators like you who have trusted our services for the last decade!

Along with our makeover, we’re pleased to offer you a selection of pre-packaged services that you can book right from our site, but you can always book a consultation with us to talk more about your project so that we can find the right fit for you.

Also, we are absolutely thrilled to announce the launch of courses! We’ll be premiering a selection of short, low-priced tutorials on copyright called “Copyright Quickies” very soon and we’re developing long-form courses for deep dives into copyright, permissions, and best practices for you and your colleagues in the industry. Be sure to sign up for our newsletter to be the first to know when new courses release!

We hope you’ll browse around the site and let us know what you think of our new look! Here’s to helping you Know Your Rights into this next decade!

The (Virtual) World of Rights Keeps Spinning

Sat, 12 Jun 2021 18:17:36 GMT

Although this year has seen several major book fairs go virtual again ( London , Bologna to name but two), the permanent closure of others ( Book Expo ), it has also resulted in some virtual fairs that are real "new kids on the block." The US Book Show (end of May 2021 but available on-demand til August) and the Edelweiss Bookfest (June 8-9) both offer different takes on US publishing specifically, but have offered the opportunity to see what's new in the book world.

although I know 'Zoom fatigue" is real when there are too many meetings in one day, keeping connections growing consistently despite not being together is invaluable.

Many publishing professionals like myself would prefer to be meeting our global colleagues in person, but until such time that the world will allow such gatherings, these virtual shows have offered a way to keep in touch as well as to make new connections that we might not otherwise have made. As an aside, I think learning how to navigate in a more virtual world has been beneficial for most people, so although I know "Zoom fatigue" is real when there are too many meetings in one day, keeping connections growing consistently despite not being together is invaluable.

Who Wants to Go to Frankfurt (or Beijing)?

Wed, 26 Aug 2020 18:12:33 GMT

It would be a major understatement if one were to say that the COVID-19 pandemic created only ripples of change throughout the world of business. Everything from how we get our groceries to our daily news has shifted.

Perhaps nowhere else were more seismic changes felt than in the world of publishing. Publishing schedules have shifted, with some titles moving to future seasons, while other titles were outright cancelled. Publishers were forced to move to more agile production models and modes when faced with printer shutdowns, shipping delays, and store closures.

Perhaps nowhere else were more seismic changes felt than in the world of publishing.

Even the world of rights faced a shift in business as licensors first paused to consider how their business might change in the face of multiple book industry conferences canceling and going virtual. First the London Book Fair was cancelled only two weeks before it was scheduled to open, then Barcelona, then New York, and on and on up until the Beijing Book Fair went fully virtual.

The lastest change in rights fairs was confirmed this week with the announcement of the Virtual arm of the Frankfurt Book Fair, one of the largest and most comprehensive rights fairs in the world. As of right now, organizers still plan to hold an in-person conference, but it's unknown how successful (or how well-attended) it will be as large publishers from around the world have pulled out of attending, and even the guest of honor country for this year, Canada, have postponed their attendance until next year.

Here at GPC, we intended to make this our first big year back on the conference circuit, and were making plans to attend Frankfurt until COVID-19 hit. After seeing the issues other exhibitors and agents hand with receiving refunds when fairs canceled or went virtual, we made the difficult decision to stay home but do our best to put forth a strong presence online as we could by registering as virtual attendees where we could.

With the exhibition companies making it as easy as possible to create an online catalog presence, we're taking advantage of the opportunity to showcase our clients at both the Beijing International Book Fair (which is virtual only) and Frankfurt. Beijing is launching this week and the Frankfurt online show will be up and running in September.

We feel this is an optimal opportunity for our clients to dip their toes in the international market with very low risk and potential for big rewards. The additional upside of establishing partnerships before the 2021 fairs get going translate (pun intended) to a win-win situation.

If you're thinking of testing your list internationally, now's a great time. And GPC is here to help you if you need a hand in getting materials out there. Give us a shout !

Will the CASE Act Move to a Vote? You Can Help!

Wed, 29 Jul 2020 18:12:32 GMT

We first mentioned the CASE Act back in 2016, and have had high hopes for the bill to pass into law after it passed the House by a majority vote on October 22, 2019 . It moved to the Senate, and seemed to have similar support there until Senator Wyden of Oregon placed what's called a "hold" on the bill .

Senators don't need to have a specific reason for these holds, and it appears that Senator Wyden is interested in seeing the bill languish and die without debate. A group of advocates from across the publishing, music, art, and photography industries (in conjunction with officers from Senators Kennedy and Durbin) have been talking with Senator Wyden's office in an attempt to hammer out details that would move Wyden to remove his hold. To this day, there have been many back-and-forths, but little progress forward.

One of Senator Wyden's chief complaints about the bill is that it would result in frivolous copyright infringement lawsuits that would "bankrupt grandma." This opinion has been voiced before by organizations such as EFF , but is a fallacious argument in that the CASE Act is meant to be a voluntary review of an infringement suit by a tribunal of copyright experts. Either party can opt out of the review, and if they move forward, there are limits on the damages that could be recovered.

The IBPA's Advocacy Committee (of which our own MJ is a member) put out a call to action last week to encourage community members to contact their Senators to bolster support for the bill in the hopes of pushing for a live unanimous consent vote on the Senate floor soon. This "Live UC" would force Sen. Wyden to voice his objections to the bill, and allow other senators to articulate their support.

You can help in the effort by encouraging your senator to support the CASE Act. Go here for a quickand easy way to reach out to your representative.

Copyright Isn't My Problem...

Mon, 27 Jul 2020 18:29:45 GMT

We've mentioned before that copyright vests in the content creator as soon as a new work is placed in a fixed format (whether print, online, or recorded; it really doesn't matter).

Copyright holders, when they feel that their work has been infringed, can sue for damages (which may be awarded as fines or even jail time), but this is only enforceable in the courts when the copyright holder has registered their work with the Copyright Office.

Accusations of infringement are seemingly everywhere. Louis Menand wrote in the New Yorker last October a brilliant review of not just the history and philosophy of copyright law, but a decent overview of some of the current issues in courts.

One item in the article would be interesting to most people: the latest suit over the copyright of the ubiquitous song "Happy Birthday To You." The melody to the song was originally composed by two sisters as "Good Morning to You" in the 1880s or 1890s, but the author of the words then applied to the song we sing to our loved ones annually has never been conclusively decided. But people keep trying to claim copyright.

Does this mean that you, person on the street, will have to pay a royalty each time you sing this song, whether it is to your adorable son on his 2nd birthday or your 90-year old Meemaw? No, according to the final settlement issued on June 30, 2016 (see this article on Law360).

We are not saying that there is a future out there where anyone could be sued for infringement because they are singing a tune that has been popular for more than 100 years, but these issues point out that the proper licensing of copyrighted material is something everyone should be concerned with. As more and more websites and electronic media are created and delivered to people at lightning-fast speed each day, the probability that copyrighted material is shared improperly becomes more of a possibility. This in turn makes it more difficult for rightsholders to protect their work.

It is important for everyone--not simply authors, artists and publishers--to understand copyright and how intellectual property can be properly shared. This is where GPC comes in. Let us help you learn more!

How Artists Can Work Effectively with Publishers

Mon, 27 Jul 2020 14:33:07 GMT

I was recently asked to contribute a guest post to Artsy Shark and provide some ideas on how artists can work more effectively with publishers.

Essentially, what issues should artists think of when they are presented with a publication contract?

You can read the result here .

New Member of the Advisory Committee for IBPA!

Thu, 23 Jul 2020 13:37:52 GMT

We are pleased to report that our own MJ has been appointed as a member of the Advisory Committee for the Independent Book Publishers Association.

This is a working committee for IBPA, tasked with tasked with identifying, prioritizing, and developing strategies to address issues of concern to independent publishers.

Read the full announcement from IBPA here.

Congratulations, MJ!

Finding Infringing Material Online: Can Services Help Protect Your Intellectual Property?

Fri, 26 Jun 2020 13:42:57 GMT

*Originally published 8/30/2016, updated June 26, 2020.

You've created your material and sent it out into the world, whether in a print edition or simply "out there" on your blog or website. You have loyal customers and fans. But what do you do to make certain that someone unscrupulous doesn't take your material, adopt it as their own, and put it out into the world as a competing product?

Searching for infringing uses of your images, art, or writing on the web can be a daunting project. Simply typing in the title or description of your work into a search engine will likely bring back matches, several of which may be infringing.

Then, the process of notice-and-takedown begins. The Digital Millenium Copyright Act (DMCA Act) allows for copyright holders to follow a process to notify and request that infringers remove illegal content from their sites. You really don't need another person involved to send a DMCA letter, but if you are unfortunate to have your material copied in multiple places, it may be like a game of whack-a-mole to get all of that illegal content removed. Many artists, photographers, writers and even publishers do not have the resources to tackle this kind of monitoring and pursuit beyond an ad hoc basis.

Companies and services exist to help content creators more easily find infringing material and issue notice. Case in point, a product listed in this article purports to assist photographers find their material online (for free). Others, such as DMCA.com sneakily adapt the moniker of the original law to promote their services to publishers (for a fee).

Buyer beware, of course.

What should you do? So set realistic expectations for what you want accomplished when you contract with any new anti-pirate service or company. Consider whether there is one product in particular that you feel has been infringed on most? Does that product contain the heart of your mission or is your reputation at stake as a result of the infringing activity? Is the investment in time or money worth pursuing pirates and bad links?

Ultimately, when it comes to protecting your intellectual property, your best move prior to engaging a service to pursue infringing material online is to register the work with the US Copyright Office . Without that record, any DMCA takedown that ultimately results in an infringement suit will likely sit dead in the water (and there is not yet a small claims court for copyright).

Licensing Timelines

Tue, 09 Jun 2020 13:47:57 GMT

You're ready to license rights to your titles. But how do licensing activities fit into your publishing timeline?

As your spring and summer titles release to consumers, licensing professionals like us continue to push for additional placements for your list.

But it's also time for us to start tending to your 2021 releases.

Yes, 2021.

Although it might *feel* premature to be thinking about licensing opportunities for books that are publishing post-holiday rush and up to almost a year from now, your potential licensees are starting to make their inquiries, and will close their first selections within a few short months.

As a reminder, generally, the spans and selection times for licensees like book clubs, audio publishers, and even foreign rights follow this pattern:

Titles publishing July through December ("fall"): Pitches begin in January, and selections first selections are complete by early March. A few licensees may select for late in the season through April or May.

Titles publishing January through June ("spring"): Pitches begin in May, and first selections generally are complete by the end of July, though some will continue to select for late in the season through October. This means that the window is starting to close for spring 2021 titles (although there's still plenty of time for serial, foreign, and other rights).

From this timeline, you can see that we are beginning to enter prime time for spring 2021 selections.

What does this mean for your list?

Ideally, we like to have preliminary materials for spring 2021 (i.e., bibliographic information, initial sell sheets and sample chapters) in hand for our first inquiries starting in May or June, with early manuscripts and other marketing material following in June and July.

This does not mean that we can't pitch outside of these seasons*, but the chances for more positive inquiries go up if we start pitches earlier.

To that end, we would like your preliminary list of titles for 2021 as soon as possible!

*The timeline for international inquiries is a bit different. These tend to run year-round, and they are driven by buzz and good reviews and advanced materials as well as strong marketing plans. We'll write more on international licensing in a future post.

It's important to keep your licensing professional updated on any new reviews, big marketing opportunities, and other materials available as you have them. For example, here at GPC, we are updating our international partners constantly.

Have questions, or have a title you want us to pitch for licensing? Get in touch!

Happy Holidays to You!

Mon, 23 Dec 2019 14:54:42 GMT

We wish you and yours a very happy holiday season and a healthy and prosperous 2020. All of us here at GPC look forward to serving you again soon in the new year. Until then, we hope you have a restful winter holiday.

Falling into 2020 | Gryphon Publishing Consulting

Tue, 24 Sep 2019 13:58:16 GMT

Fall is officially here, we will soon see the first leaves begin to turn, and publishers' thoughts turn to the big holiday season push.

But here at GPC, we're thinking about 2020 already!

Why?

Our licensees are looking to fill their new seasons, and those seasons are spring and fall 2020.

Generally, the spans and selection times for licensees like book clubs, audio publishers, and even early foreign rights buys follow this pattern:

Titles publishing January through June ("spring"): Pitches begin in May, and selections generally are complete by the end of July of the previous year, though some will continue to select for late in the season through October.

This means that the window is starting to close for spring 2020 titles.

Titles publishing from July through December ("fall"): Pitches begin in November of the previous year, and selections generally are complete by the end of February. A few may select for late in the season through April.

From this timeline, you can see that we are actually beginning to enter prime time for fall 2020 selections.

What does this mean for your title list?

Ideally, here at GPC, we like to have preliminary materials (i.e., bibliographic information, initial sell sheets and sample chapters) in hand for our first inquiries starting in October, with early manuscripts and other marketing material following in November and December.

This does not mean that pitches can't occur outside of these seasons, but the chances for more positive inquiries go up if we start pitches earlier.

We'd love to hear what you have going on in 2020 and how we can help you do more with your list!

Copyright and IP: Days of Celebration

Fri, 26 Apr 2019 14:05:24 GMT

Today marks World Intellectual Property Day 2019.

Sponsored by the World Intellectual Property Organization (WIPO), this annual event revolves around a certain theme for study around a certain issue in intellectual property. This year's theme is "Reach for the Gold: IP and Sports," and there are a TON of great articles on the WIPO site about photography rights, IP and the Olympic Games, patents for sports equipment, and more. If you've never really had an interest in learning just what IP can affect in your daily life, this site makes a very compelling way to bone up on all things intellectual property.

This past Tuesday, April 23 was also World Book and Copyright Day , sponsored by UNESCO. This international celebration of reading and books not only celebrates the impact of books on people and cultures worldwide, but how books continue to help promote creativity and diversity.

As part of the World Book Day celebrations, a world book capital is selected as a representation of everything books. This year's capital is Sharjah. Learn more about the World Book Capital here .

Happy Reading!

Copyright Disputes in Georgian England

Thu, 07 Feb 2019 15:11:28 GMT

I have just returned from a trip to London with my husband who was traveling there for a work assignment.

As it was not my first time traveling there, it was a good time to explore some more offbeat museums and locations.

From visiting the Charles Dickens museum (situated in a house where he lived for a number of years), to the Tate Britain for a chance to look at some of William Blake's original etchings for "Songs of Innocence and Experience," London is truly a bibliophile's playground.

The British Library (which is an amazing place to visit on any day) even had a surprise to offer in the Anglo-Saxon Kingdoms exhibit. Illuminated manuscripts from ages ago? Check. Domesday Book? Check. Original copy of Beowulf? Check.

But to find in a little side panel of the London Transport Museum a court dispute in 1836 which highlights potential infringement in a mechanical design*? Bonus!

Mechanical designs, architectural drawings, literary, or artistic compositions, can be copyrighted. In this particular case, the plaintiff and defendant were locked in a battle to use a particular trolley design and color scheme to attract customers along the same route in London. It seems the defendant felt that they could "borrow" the overall look of its chief competitor in order to trick customers into riding their transportation service instead.

Now, we don't have the information on how the court case turned out, but we'd hazard a guess that the defendant was likely made to change their design (or at the very least, the colors) so as to not cause brand confusion.

What do you think?

*Arguably, this can also be seen as a trademark dispute, but the exhibition didn't really elaborate very much, and truthfully, I don't know enough about trademark law (and especially not in the UK) to make any assumptions. In reality, the case was likely just a dispute between two companies over a route and how much they could potentially copy one another.

Happy Public Domain Day!

Tue, 01 Jan 2019 15:19:42 GMT

For the first time in an incredibly long time, new titles are being added to the Public Domain in the United States!

On January 1, 2019, the provisions set forth in the Copyright Extension Act of 1998 finally expires, allowing hundreds of works to enter the Public Domain. From here on out (barring another piece of legislation to the contrary), new works will enter the Public Domain on January 1 of each year, just as they do in other countries.

This year, it means that works published before 1924 (with some exceptions) are now open for use without gaining permission from the author, their agent, or estate. So, works like Robert Frost's collection of poems New Hampshire will be available for use, as will the film The Ten Commandments (the Cecil B. DeMille version, anyway).

While it's true that some works published in 1923 (and later) might already have been in the public domain if copyright was improperly registered or renewed, and conversely, a (very) few works may still remain under copyright, it remains important to conduct the proper research into the copyright status of a work prior to using it.

But for now, authors, artists, filmmakers, and really anyone is free to create their own editions, versions, translations, or adaptations of works from 1923 and before. Hooray for more creative endeavors!

Springing into Summer

Mon, 23 Jul 2018 18:15:14 GMT

It was a VERY full spring here at GPC, with a lot of exciting new client work, some travel, and lots of meetings.

In April, we attended our second Independent Book Publishers Association Conference, this time in Austin, TX. While there, we presented a seminar on international rights & licensing to an overflowing crowd! We had lots of good questions and conversations there, and we're already looking forward to next year's conference!

Early spring and into May saw one of our most ambitious clearance projects yet: helping the Niagara Falls Underground Railroad Heritage Center get the rights they needed to the images in their gallery space, as well as to clear music they wanted to play on location.

The second phase of the project with the NFUGRHC involved lending our expertise to the set up and stocking of their retail store. We're still helping to bring in some new titles, but it was fun to help build their store from the ground up!

The NFUGRHC is a museum you should not miss! Definitely give it a look when you come to Niagara Falls and maybe you'll see us there on-site, too!

In May, we went to the debut conference for the New York Rights Fair and learned a lot about emerging foreign language markets. Did you know that the audio format is really starting to take off in Europe? We made a lot of great contacts there, and are looking forward to putting our learnings to work for you in the future!

While we were in NY for the Rights Fair, we also popped over to Book Expo to visit our publisher friends as well as take a look at all of the exciting new titles coming for fall 2018 and beyond. There are a LOT of fun publications coming out, and, even though Book Expo was smaller than previous years, there was a lot to take in, and many fruitful conversations were had!

As we roll toward the July 4th holiday, we're still plugging away at a few projects for clients, but we're looking forward to more interesting work for the fall. We've sent out proposals for new work, and are always keeping an eye out to how we can help you more.

Stay tuned, because we also will be announcing a new course coming in August in collaboration with Ragan Communications!

Copyright Extension: The Mickey Mouse Problem

Thu, 07 Dec 2017 19:21:00 GMT

In 2019, items that had copyright extended in the last amendment to the copyright act will fall into the public domain. This means that if you as a creator wanted to incorporate these works--from poetry to photography, and drawings to songs--into a new work of your own, you would not need permission from the copyright holder to use it.

Interestingly, unless copyright law is amended once more, materials released into the public domain beginning January 1, 2019 will potentially include the first iteration of Disney's iconic character, Mickey Mouse.

So does this mean The Mouse will be loose and FREE to use and re-use*?!

Well, almost...

The Sonny Bono Copyright Term Extension Act of 1998 (or the "Mickey Mouse Protection Act" as it is sometimes called) added 20 years to existing copyright protections for works already registered (or renewed) for copyright. There was no need for a copyright holder to re-register the work as extension was automatic to the term we observe today: the life of the author plus 70 years, or 95 years after first publication for an item created for a company or corporation (or 120 years after creation).

It's important to remember that copyright exists to protect original works of authorship so that those authors may benefit from their creation (and the potential uses for derivatives of those works). It was not meant to be a right that could be held forever, and guidelines such as Fair Use also exist to assist creators with guidelines for generally-acceptable re-uses of material without permission from the original creator.

Understandably, any large corporation like Disney would be most interested in protecting its keystone properties (like Mickey Mouse) so that they may continue to grow their business for years to come. So this is where trademark law comes in, and how corporations may be able to continue to protect their intellectual property IF a further extension of copyright law is not legislated soon (and you can be sure that Disney et al will probably lobby for another extension beginning in 2018).

Trademarks can be renewed pretty much indefinitely. They are designed to protect a business' commercial brand or identity from unauthorized or confusing usage. As a key figure in the Disney pantheon, Mickey (and reflections of The Mouse from the ears and silhouettes) would be something that the company would be most interested in protecting from such unauthorized use.

Indeed, copyright AND trademark law together make for very sound protection for a logo, symbol, or other icon, but trademark law is certainly nothing to sneeze at on its own. You can be sure that Disney would not allow any trademarks on The Mouse to ride off into the sunset anytime soon.

The forthcoming expiration of copyright on a wealth of materials is coming, however, and it will be interesting to see whether corporations lead the charge to change the law once again.

*In actuality, the mouse won't be in the public domain until January 1, 2024, as the first "Steamboat Willie" cartoon was released in 1928, and as a corporate creation, copyright protection extends until the end of December of the year 95 years from creation or 1928 + 95 = 2023, so in January of 2024.

Looking to Grow Brand Recognition or Revenue? Look to Licensing!

Mon, 04 Dec 2017 19:24:55 GMT

Indeed while it is Gryphon Publishing Consulting's mission to help publishers grow their reach through licensing as well as license third party materials the right way (i.e., inbound and outbound permissions and rights), it still is surprising to meet publishers or authors who aren't aware of the potential of this ancillary marketplace for their content.

MJ was recently interviewed by the IBPA's Independent magazine on the viability of licensing for publishers. While the overall licensing market for a particular book or list depends on the type of property and its overall appeal, most titles can indeed benefit from a smart licensing plan.

Check out the article here and please do let us know in the comments if you have any questions or follow-up that you'd further detail on in a forthcoming article. Or of course, you are welcome to contact us directly for more information and a free consultation of your business' licensing potential.

Adapting a Work? Get in the Clear!

Mon, 08 May 2017 18:37:23 GMT

Artists find inspiration virtually anywhere: the world itself provides queues to messages and stories that need to be told through photography, art, poetry and literature.

An existing work might spark a new work or even inspire a statement or criticism of that original work, but artists, photographers and writers need to be aware when their adaptation might indeed cross the line into infringement.

A recent article appearing in CNN chronicled one recent case. The artist in question, Chris Devins, stated that the idea for his mural of Michelle Obama as an Egyptian queen on a public building in Chicago was based on an image he found on Pinterest. The artist also claimed he didn't know who owned the image.

Creating a new work inspired by another previously-exisiting work without formal permission can land an artist in plenty of hot water. US Copyright law protects a creator's interest in their work and all derivatives and adaptations (see this circular for more detail). It is imperative that the person or company who wishes to use another's work do their due diligence and attempt to locate the rightsholder before proceeding (and yes, in some circumstances, Fair Use may come into play, but that's a matter for another post ).

This is not to say that finding a rightsholder is an easy venture. Best practices suggest allowing at least 4-6 weeks to complete permissions research and clearance. That said, the search process can take much longer because the first source you find for an image or excerpt might not automatically lead you to the rightsholder.

When seeking the rightsholder for literature, the first place to start is with the copyright or credits page of the publication where you found the material. The person or entity listed there will likely be your source, but realize that when rights are reverted or sold you may be ultimately working with someone else entirely. A search on the Copyright Office's Online Records will also be of great help for items copyrighted after 1978.

Images can pose particular challenges, especially if you found an image posted on social media. If the account posting is not the originator of the image, and your contact for the account doesn't know who does hold the rights, a reverse image search is a good first step. "Start with Tineye or [a similar search engine]...." says Liz Grady , a photo rights clearance expert. Remember that images can (and should be) registered at the US Copyright Office as well, so a search for an image there with a certain description may reveal the rightsholder.

Just as with excerpts from publications, you might find yourself up against a wall. Liz has helpful advice even then: "If you hit a complete dead end - meaning you absolutely cannot track down the copyright holder - pick another picture, pure and simple."

It's certainly better to be copyright than copy wrong.

Should You Register Your Work with the US Copyright Office?

Fri, 17 Mar 2017 18:41:39 GMT

Did you know that your work is automatically covered by U.S. copyright law as soon as you set it in a fixed format?

According to Title 17 of the US Code, all works are protected under copyright law from the moment they are placed in a fixed, tangible medium and can be perceived either directly (on paper, canvas, or other "solid" medium) or with the aid of a machine or device (computer or e-device, if you will).

What does this mean? Well, essentially, you do not have to register your work with the Copyright Office in order to have some measure of protection. The law exists to help protect content creators and to help "promote innovation" in the community.

That said, you might want to formally register your work, as there are a number of benefits to this process:

-It establishes a public record of the copyright claim.

-If registered within 5 years of creation, it provides "prima facie" evidence of the validity of the copyright and the facts stated in the certificate.

-If registered within 3 months of creation or prior to infringement of the work, it will allow for statutory damages to be awarded to the copyright owner in an infringement suit.

And, perhaps most importantly:

-It allows an infringement suit to be brought forward.

You might be thinking: "Well, can't I just mail my manuscript to myself via the U.S. Postal Service and therefore, as a government agency, I'm covered under copyright law?"

Unfortunately, all that this method will do is prove the date you mailed it to yourself on a certain date. There are no legal benefits to sending a manuscript to yourself in the mail, as the U.S. Postal Service is not an entity of the U.S. Copyright Office.

But don't despair. Not only is the process of registering copyright easy, but it's relatively inexpensive.

For example, for a simple registration (let's say a book, with one author or artist), the fee is just $35 for registering online.

Perhaps the best part? You can do it on your own without a lawyer.

Why not protect your intellectual property?

More information on U.S. Copyright law and the Copyright Office may be found at: www.copyright.gov

Just What is Fair Use, Anyway?

Wed, 22 Feb 2017 19:47:27 GMT

U.S. Copyright law exists to help promote creativity and innovation by providing a framework for protecting a creator's interest in their work so that they might benefit from dissemination of their work to the public.

It is a creator's sole right to sell, distribute or create derivatives of their work. Infringement occurs when another party represents or adapts another person's intellectual property as their own without proper permission.

That said, within copyright law exists a statutory framework called Fair Use (in section 107 of the Copyright Act). This provision provides for re-use of materials without permission under certain specific circumstances, particularly in cases of news reporting, criticism, teaching, scholarship and research. The Fair Use doctrine requires the evaluation of four factors in determining whether a particular usage is "fair" or not:

The Purpose and Character of the Use (The main consideration here is whether the use of the existing material is commercial or for education, as well as whether the new work is transformative. This factor is usually weighed along with the other factors below.)

The Nature of the Copyrighted work (How the new work relates to the original. Here, using a more creative work is less likely to enjoy protection under fair use than using a factual item. Further, using unpublished works is less likely to be considered "fair.")

Amount and Substantiality of the Portion Used in Relation to the Whole (Here, courts consider the literal amount of the work taken as well as whether the "heart" of a copyrighted work was taken by the new work.)

Effect of the Use on the Potential Market or Value of the Original (So, whether or not the new work might "take away" sales or perceived value from the original work now or in the future.)

Fair Use cases are heard rather consistently in the courts, and as a result, the U.S. Copyright Office has now created a Fair Use Index . The index provides a convenient way to review case law and help courts (and the public in general) to understand the current thoughts on reuse of material under the Fair Use doctrine.

Of course, rather than relying on Fair Use for new publications, it's always best to seek permission to reuse materials. This way you can be absolutely certain that you are on the right side of copyright law.

Have questions on your manuscript? Set up a consultation with us today to discuss your project!

Infringing on the "Little Guy": Hope for a Small Claims Copyright Court

Wed, 07 Dec 2016 19:56:41 GMT

Many people still don't realize that copyright does not need to be formally registered with the US Copyright Office in order to be protected by copyright law.

That said, among the benefits to registration is the right to bring forth a suit for infringement, under which the rightsholder may be awarded legal fees and statutory damages.

"This is all well and good," you think, "For large publishers. But what about me, the independent publisher or author? Surely attorney's fees, time, and energy required to pursue such a claim would prove detrimental to my own bottom line. What then?"

Enter the CASE Act , introduced by Rep. Jeffries and Rep. Marino, which proposes the creation of a sort of copyright small claims tribunal (called the Copyright Claims Board) which would review claims of infringement and pass limited judgement on the cases presented. In essence, this review board would function in much of the same way as a suit brought forward in federal court, but from within the US Copyright Office itself.

The benefit? The Copyright Claims Board would hold its hearings with written submissions or electronic hearings, and the claimants would not necessarily need to hire legal counsel to pursue a case.

Although the legislation went no further in this year, the CASE Act's presentation this summer is a positive step toward helping the independent publisher and author a way to enforce their rights in copyrighted materials.

Here's hoping that this is just the beginning of forward progress in copyright law.

Read Your Contracts!

Thu, 03 Sep 2015 14:38:07 GMT

I teach a course on permissions and rights in The George Washington University's Master's in Publishing Program . In it, I stress the importance of understanding your contracts and licenses. After all, these contracts are everywhere.

Don't believe me? Turn over your ticket at the next live event you go to. I can assure you that you will likely find some language referring to the venue's rights to utilize your image at the event in any way they see fit, including during a broadcast and in marketing.

"But," you'll say, "I didn't sign a contract! They can't do that!" Ah, but they can. Your ticket is what's called a "bearer instrument" and the act of exchanging money (or something) to obtain the right to view the live event (as, in reality, not everyone can see the event like you can), results in a swapping of rights. That includes the use of your image.

It's a similar thing with social media (and this is where things can get sticky). When you post an item on Instagram, Facebook, Twitter, or the like, you may technically still own all the rights to your image or content, but you also grant some rights to the venue where you have posted your material. In many cases, it's again, for use in marketing, but could go further than that. Simply stating somewhere on your page that you "do not allow" such usage won't necessarily guarantee you protections, either.

That doesn't mean that you shouldn't use social media, or that you shouldn't post your images to other places where your content is exposed to a wider audience. You just need to understand the terms of service for that platform, and what that means for your content.

If you share your content to a site where Creative Commons licenses are in play, it's especially crucial to understand the ramifications of your choice. There are several licenses to choose from , and in using them, you do provide your content with some measure of protection. But when you place content here, it may affect that same content if you then post it in another area.

Take this case, where a photographer uploaded a piece to Flickr , only to find it in use (for profit) on a book years later.

The lesson? Read your licenses (contracts) and understand what it means for the future of your work.

Still need help? Contact Gryphon Publishing Consulting for an analysis of your rights policy today!

The Instagram Debate: Fair Use in Art on Social Media

Thu, 14 May 2015 14:50:25 GMT

In probably one of the most interesting copyright debates since the musician Prince and a Pennsylvania mother went toe to toe over a YouTube posting, the artist Richard Prince, has apparently blatantly adapted Instagram postings and created works placed on display in the Frieze Gallery in New York.

The Internets have erupted with stories reporting on individual Instagram users selling their own versions of the same prints that Richard Prince sold for $90,000 . And, according to reports, Prince's own Instagram account received a lot of negative commentary on the subject (which, I imagine, is just what he was after in the first place).

But does the act of an artist adapting an Instagram screenshot, enlarging it and printing it on canvas for display in a gallery, constitute infringement? Maybe, and maybe not.

It's helpful to look at the general rules of Fair Use when analyzing this case. As definied in Section 107 of the US Copyright Act , Fair Use provides guidelines that help a court to determine whether the reuse of copyrighted material may be considered "fair" as well as what types of use (including criticism, social commentary, education, news reporting, scholarship and research) are may be considered Fair Use.

One important thing to keep in mind is that Fair Use is NOT protection against an infringement suit. Rather, its guidelines provide an outline for a court to determine whether damage was suffered by the copyright holder. It also is not an absolute that, when a defendant believes he or she has each factor checked off as Fair Use in an infringement suit that the defendant will be able to prevail.

I think several items make the story very interesting:

1.) Clearly, Richard Prince created a copy of the images on Instagram and made them into prints without consent (which is, just at its base, infringement).

2.) Perhaps not so obviously, the specific collection is unique and could be construed as the artist's commentary on social media and life in today's world (perhaps weighing in favor of Fair Use).

3.) Simply posting an image to Instagram or other social media platform does not formally register copyright in that image to the user who is posting. User agreements for the platforms aside, copyright still vests with the creator, but without formal registration of the work, infringement becomes more difficult to claim.

4.) The fact that Prince sold the prints from the gallery show (clearly profiting from the venture) pushes the reuse of the original photographs out of a clear case of Fair Use (and thus begging infringement).

Probably the best article on the controversy is co-authored by a practicing copyright attorney , and it makes abundantly clear that the idea of infringement is not that entirely clear.

However, until one of the Instagram users whose photo was adapted by Richard Prince decides to take him to court over the matter, we won't have a clear decision on whether this particular reuse is Fair Use. Until then, the battle will be fought at a virtual level online and in social media.

I'll be watching closely, though. Will you?

***Addendum, July 2: Another person, whose photo was "transformed" by Richard Prince in his Instagram gallery exhibit, spoke out on the matter to the Toronto Star .

****

Confused about whether the material you want to reuse in your new publication falls under Fair Use or not? Contact Gryphon Publishing Consulting for a Fair Use Analysis.

Content and Social Media | Gryphon Publishing Consulting

Mon, 04 May 2015 19:15:57 GMT

Today, Facebook announced that it is partnering with six major media publishers to test publishing their content directly on Facebook. The idea: by keeping readers within the Facebook ecosystem, readers will experience faster loads for content and will no longer have to "suffer" a time lag for content loading, and readers will also be able to experience more of the material they want to see within Facebook.

The Atlantic, The New York Times, The Guardian, and National Geographic are among the notable media outlets in the test. Each new partner has a large following of subscribers in various media in their own right, and they also have their own presence on Facebook in the form of a company page where they post links to content regularly.

So why would they agree to publish some content directly to Facebook and nowhere else?

Answer: more revenue, new readers and more subscribers.

Despite a large presence in print and digital formats on their own, every media outlet is interested in gaining new readership (and profit!) by any means possible. In a sense, they are meeting new readers where they already spend a significant amount of time. In the article about the deal which published in The New York Times today, each media outlet noted that they currently gain around 10-15% new subscribers from Facebook. By publishing directly in the platform, these media outlets expect to be able to turn over new subscribers by embedding ads within the Facebook-published materials.

It comes with a few risks, however, and I'm certain each media outlet is not entirely blind to the potential issues, but it provides some food for thought nonetheless:

1.) Facebook will be asking for more "free" content from its partners down the road, especially if the campaign proves fruitful for Facebook in gaining more users as well as generating more revenue from ads.

2.) Perhaps more risky is the issue of copyright on the articles provided. Although details of the deal have not been disclosed, I'm certain that the media outlets had to relinquish some control over the rights to material published on Facebook*. But demands for more content will increase pressure on outlets to relinquish more control over their material. So each media outlet needs to ensure that they absolutely control all of the rights to the materials posted.

3.) New publishers who are courted by Facebook may not receive the same terms as those in the test group. In the case of the test group, the media outlets themselves are large enough (currently) and have enough power and presence to be able to dictate better terms with Facebook. That said, but I'm concerned that other (smaller) publishers will be so hungry for their presence to be on Facebook to "gain more eyeballs" that they may be willing to give on terms. Publishing content exclusively on Facebook could then make the ability to publish elsewhere and gain readership away from that platform at risk.

I'm not saying that publishing to social media outlets is a bad thing (it's an incredible tool for interacting with customers), but content producers need to maintain awareness of what rights they need to have in order to publish to these areas, and not compromise on good due diligence on terms before proceeding. It is extremely important for content producers to be certain of what rights they have at all times so as to reduce the risk of copyright infringement.

In the game of gaining readers, it's important to be cognizant of the balance between gain and what could potentially be lost.

If you have questions about what rights you should have before publishing content on social media outlets, contact Gryphon Publishing Consulting today for some assistance in developing your company's rights policy.

*Of course, any media outlet worth its salt will ensure that they already control all rights to material they publish online, keeping in mind the lengthy privacy policies contain some notice to users how their content may be reused.

Inspiration or Infringement: In Music?

Mon, 20 Apr 2015 19:11:15 GMT

Most of you have probably heard of the Pharrell Williams/Alan Thicke vs. Marvin Gaye suit, or perhaps the

Sam Smith vs. Tom Petty suit.

In the case of the former, Williams and Thicke lost their case to the Gaye family, who alleged that the song "Blurred Lines" infringed on Gaye's "Got to Give it Up." In the latter, Sam Smith avoided a protracted legal battle by quietly settling the case and adding Petty as a co-writer on his song "Stay With Me."

Looking at both cases, I have to admit that I'm not entirely convinced by the similarities between the original songs and those that were purportedly infringing. I could really see judgements going either way, but in the end, I do feel that both cases were closed with reasonable conclusions.

Why?

When judges (or a jury in the Williams/Thicke vs. Gaye suit) review a case of possible infringement of a musical composition, the primary analysis is through what is called an "audience test." According to the American Bar Association , this test has an "ordinary person" listen to the works and, without looking for specific differences in them, "would be disposed to overlook them, and regard their aesthetic appeal as the same." In other words, whether a lay person could hear the similarities between the two works without first hearing differences and assume the compositions were either the same or derivatives of one another.

In the Williams/Thicke vs. Gaye case, I can hear the underlying melody and backbeat running through "Blurred Lines" that is reflective of Gaye's original work. Gaye was certainly a pioneer in music, and set a particular style for artists to come after him. But to my ear, I do not myself think that it is similar enough to be infringing. That said, when one narrows down the specific phrasing at issue, I do hear the similarities and understand where the judgement came from.

Sam Smith obviously didn't want to go through a long legal suit and so settled his case, which explains why it made barely a ripple in the news. In this case, I think he was smart to settle, as I feel this is a more cut-and-dry case of infringement. To my ear, the songs at issue are very similar in phrasing and melody, and it doesn't take much of a focus in on a particular section to hear that.

Each of these cases are very interesting, however, as they drive home the point that infringement of copyright will ultimately be decided by either a judge or a jury, and as such, are subject to opinion. It's extremely difficult to predict how a case will be decided even when specific factors are being reviewed.

In future posts, we will review some famous infringement cases in photography. But for now, the lesson to be gleaned here is to not simply assume that borrowing elements from another artist and changing others will keep you clear from an infringment suit. It's always best to ask permission before publishing rather than face the consequences and expense of a suit later.

Well, at Least It's Credited?

Fri, 13 Mar 2015 19:04:12 GMT

It might seem basic common sense, but more often than not, clients are surprised when I remind them that they need to ensure they have proper permission for reuse of materials, as well as making certain that the rights holder receives proper credit. This is important for many reasons, the least of them so that the reader or observer of the material can refer back to the original source material if they so wish.

I came across this the other day in my readings, and found the credit line amusing. The person who posted this material is blatant in stating that they did not receive permission to reuse the illustration, but they do provide credit back to the original rights holder:

What alarms me about the above "credit" and review is the accompanying illustration. Although you cannot see it for yourself, you will have to trust me here. While using a thumbnail of the cover of a book is usually deemed to be acceptable practice for reviews, taking an image off of the cover and posting that independent of the cover design is not.

As this particular piece is a review (providing critique of the original), it is true that this usage would be considered fair use, and the review's author would be unlikely to face a claim of copyright infringement.

It is also appropriate that the author of the review provides credit back to the original source, as well as information on how the interested reader might buy the book. But it doesn't excuse them from not getting proper permission for the reuse of the illustration out of context from the original cover.

Remember, even when the reuse seems to be innocent enough, it remains in the rightsholder's power to deny permission for any use. If you don't ask first, you might find yourself facing a copyright infringement suit.

If It's on the Internet, It's FREE!

Fri, 13 Feb 2015 14:28:45 GMT

I have lost count of how many times I have heard the statement "If it's on the internet, it's free to use."

The truth is, copyright vests with the creator at the time of creation in a fixed format. No special registrations are necessary. This applies to all content: from photographs to books, artwork to websites (like this one). All content is protected by copyright as soon as it is set in a particular format. It's not copyrighted when it's sitting in your head (as an idea), but it is as soon as you write it down or sketch it out.

But for some reason, people like to make assumptions about all sorts of things online: "If it's on the internet, it must be true." Seriously, people, do you really believe everything you read?

I didn't think so.

So why do you believe that something posted on a website is free for the taking? Simply because you pick up a book in a library, does that mean that you are free to rip off the cover or highlight the pages? Does the license you have to drive a car allow you to pick a random side of the street to drive down depending on your whim?

No?

Why is that?

Because there are inherent rights and responsibilities with each of these privileges. And if you are not responsible with the rights you have been granted, you may lose the privilege.

Copyright provides a bundle of rights (or privileges) to the author/creator of the material. It is up to the creator to determine who can use the material in another format, location, or language. Even only a portion of a work is protected by copyright, and it's within a creator's rights to refuse reuse in any form for any reason.

As a reader of this website, you are free to learn about Gryphon Publishing Consulting , look at my photo, and send me an email, but you cannot copy and paste these words and present them as your own. Those rights belong to me, and I can certainly allow you to use these words, but only with my written permission. I might not charge you for the reuse, but you still have to get my permission.

Just because it is on the internet doesn't make it free.

Welcome to the Know Your Rights Blog!

Tue, 03 Feb 2015 01:56:50 GMT

Hello there and welcome to Gryphon Publishing Consulting's "Know Your Rights" blog! Here, we will post articles to help educate you on permissions and copyright, whether by highlighting interesting copyright news, links for additional reading on current issues and legislation, or other items we think you will find educational and fun in the world of copyright.

No, really. Copyright can be fun.

Seriously.

Ok, a serious topic indeed, but that doesn't mean we can't be amused while we learn. ;-)

There is an abundance of material in the really real world as well as on the internet that will help illustrate the intricacies of intellectual property, but they are not all by any means boring. Some stories will make you laugh while others will cause you to gape in amazement.

The aim here is to educate you on copyright in a fun and engaging way. We hope you learn. We hope you will engage with us.

And most of all, we hope you will come back to read again and again.