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If I were asked to express in a single sentence what has happened mentally to many American children during the last decade I would know no better formula than to say that they were conquered by Superman. And if I were further asked what is the real moral of the Superman story, I would know no better answer than the fate of the creator of Superman himself.

Fredric Wertham, Seduction of the Innocent, Chapter 10.
http://tinyurl.com/agvmrje

Settlement talks? I don’t see anything.

@mgh The following are a few references to the initiation of settlement talks.

Toberoff’s argument against the summary judgment is that DC violated procedural rules re a mandatory pre-filing notice period. DC finds the you-said-judgment-but-not-summary-judgment argument to be transparent jockeying for tactical advantage. Specifically, DC alleges that Toberoff was delaying so he could prepare and file the 2/7 Pacific Pictures motion, which, reading between the lines, is an attempt at showing that the recent string of losses has not left Toberoff powerless.

Thing is–and here I’m speaking more about the negotiating role of an attorney than the legal–the PacPic filing doesn’t achieve that goal. If anything, it has the opposite effect.

The same goes for the objection to DC’s motion on 2/7. Could Toberoff win on the you-said-judgment-not-summary-judgment technicality? Sure. District court judges have to be sensitive to this sort of stuff, since you don’t want a picayune matter of procedure to undo more substantive decisions. But as I noted yesterday, it doesn’t foster fear or respect.

Settlement talk references – the process started in January

p.17 – email
p. 18 – email
p. 78 “In reality, Mr. Petrocelli had stated in a largely unrelated telephone
conversation with Mr. Toberoff about organizing settlement talks that DC would file a “motion for entry of judgment””

p. 78 “On January 31, Mr. Petrocelli had a telephone conversation with Mr. Kendall (who does not represent any party in these two cases) about coordinating a settlement meeting.”

p. 79 “Obviously, DC cannot use casual references in settlement conversations to evade its meet-and-confer obligations under Local Rule 7-3, especially when DC was openly vague about the sort of motion it intended to file”

A quick update – one procedural, another more interesting.

Procedural: Judge Wright replied pretty much as one might expect. He says that while DC gave Toberoff plenty of notice, Toberoff IDed a technical inconsistency with the procedural rules.

You can almost hear the judge sigh.

The upshot: he grants the continuance and cancels the March 11 dates for the Siegel and Pacific Pictures cases. In Pacific Pictures, he takes this one step further and says that he’ll make his decision based on the record.

What’s more interesting is that DC’s latest document dump includes an interesting piece of info re the Shuster case. DC includes material indicating that it has sought a new court-ordered mediation with Mark Peary now that the court has shown him that he really can lose everything except the micro-settlement with his mother. Previously, Peary had said he had only considered the possibility of a loss “like I would an asteroid hitting us and wiping out life on earth.”

In other words, DC is likely prepared to reach a new agreement in excess of the old 25K/year settlement.

The latest case documents can be found here: http://www.scribd.com/doc/124657128/Siegel-Superman-Superboy-Pacific-Pictures-cases-2-8-2013-documents

Oh Jeff, Jeff, Jeff….
What will you get to write about now?

You don’t have to be a procedural wonk to understand the importance of the admittedly complex issue of civil procedure. That’s because, as far as I understand it, there is still some bargaining to be done. And every DC claim that can be dismissed improves the Siegel’s bargaining position. I think the 9th Circuit’s decision is horrible. It chills the bargaining process by putting in land mines, it also seems to directly contradict one of the cardinal rules of evidence in civil matters – statements made in conjunction with an offer of settlement are not admissible as evidence. And if a term sheet doesn’t fit that description, I don’t know what does. Maybe that’s why the 9th Circuit didn’t want the case to establish a precedent.

@Jonboy Just you wait. Been holding back. Always open to questions too.

@Mitchell Berger The state of the law regarding term sheets would surprise a lot of people who agree to them. It’s in many ways counterintuitive. My take on the 9th Circuit’s use of a memo dispo is that the legal principles for finding a term sheet binding have already been established. This was just an application of established law to a particular fact pattern – no need to offer additional guidance in binding precedent.

Re bargaining to be done: yep, that’s how these things often get wound up after one side wins a huge victory. Thing is, though, DC is now in the stronger position, a reversal of the situation in 2008 and the subsequent expansion of the Siegels’ ownership stake. The filing described in this post is primarily about Toberoff not getting hit with owing damages & attorney fees to DC.

Now can we get Superman back in his original costume instead of Jim Lee’s nightmare?

Jeff, I can’t wait for the book you write on this. You know — the book that I decided in my head will be on sale around this time next year.

Seriously, these as-we-go-along posts are stirring and wrenching and eye-opening. Putting it all in one place in the proper context (and in the right narrative order) would be a must-read.

The human “point” that stands out to me here is the aggressive attempt to strip an author of his right to be considered an author while we here in the 21st century are enjoying a renaissance of author recognition; even corporate authors! “Monsters, Inc.” isn’t just a Pixar film, but a Pete Doctor film, and it’s marketed that way. Kevin Feige, Jon Favreau, and Joss Whedon are given more credit for the Marvel film explosion than the corporation itself is. Today, corporate art producers promote their employed or freelance individual humans as the secret to their success, yet we just have a block preventing us from affording the same recognition to those who built the foundations. It’s because the working relationships then were so fuzzy and disputed that any “give” in those relationships today becomes dangerous to the financial health of the companies. Understood. But it doesn’t make it any less outrageous.

I second Jeff’s book — he is literally the only person who is getting the analysis of this right. Otherwise, facts like these get buried behind single news leads and small paragraphs. No one is simply willing to do the homework anymore.

Something new that struck me was the use of “Jack Kirby’s Fourth World” in a few places in the settlement. I don’t know the exact reason they were putting it in (help?) but just the way it is worded — as his, but emphatically theirs — very ironic and sad.

@Jesse Many lawyers today are domo arigato Mr. Roberto when it comes to preventing future harm to a corporate client. It doesn’t occur to them that treating folks as less than human is offensive in ways that can lead to much more substantial harm down the line.

For instance, the Siegel case has cost Time Warner millions in legal fees–probably more than they would have paid the Siegels under the settlement during the same period of time. The likelihood that Time Warner would have taken the same financial hit if Joanne Siegel had gone off the reservation after transferring DC all the rights in the settlement falls somewhere on the spectrum from slim to none. But all the lawyer can think is control, control, control without any sense of nuance or a strategy informed by human nature.

@Brad Based on the context, my initial sense is that Kirby’s Fourth World + related material are there to forestall on claim to revenue from post-termination versions of Kirby’s Jimmy Olsen/Fourth World/Kamandi material with an arguable or actual Superman connection. (Definition 9, “Superman Property,” is key here.) At the time profits from Darkseid material may have been the main concern, but who knows? Perhaps the original plan for the New 52 was to build it around Goody Rickles.

On a broader level, yes, the phrase “Jack Kirby’s Fourth World” has branding value in the comics community, but in a document designed to deny an original creator the possibility of any credit or financial interest it takes on a wholly different valence.

Jeff,
Aren’t the royalties retroactive? Meaning, isn’t DC paying the royalties from the date the agreement was signed to today, as well as going forward? DC didn’t pursue this case to stop those royalties, or even reduce them, they reacted to Toberoff’s claims.

So saying “the Siegel case has cost Time Warner millions in legal fees–probably more than they would have paid the Siegels under the settlement during the same period of time” isn’t really accurate, is it?

Did the lawsuit cost TW money? Yes. But they were willing to pay the Siegel heirs significant money, and had an agreement to do so. It was the Siegels and Toberoff who decided to try to void that agreement.
What was TW to do? Renegotiate for more? Siegel didn’t want more. Apparently she wanted to stick it to the man. So TW had to defend their property.

@jonboy There was a way to write certain clauses – particularly anything pertinent to non-defamation and other stuff beyond finances – that likely could have kept the settlement process from breaking down into the long-ongoing lawsuit.

When you’re negotiating a settlement, particularly a one involving a situation w/ decades of hard feelings, you don’t stop with cash if you want the settlement to get the folks on the opposite side of the table to sign on the final dotted line. Many disputes aren’t really just about money–and if you pretend they are, you could end up losing more of it than is necessary.

In the Siegel deal, when the dollars were more or less set would have been a great to time to think about how to get the Siegels to see this a good thing, as a form of vindication for Jerry and a means of securing his legacy. Without that, there was always a serious chance it could revert to the mean–a fractious, costly legal dispute.

Now DC is on the hook for the past royalties *and* the decade or so of lost time, extra staff, $ spent massaging it for SEC filings and fees for outside counsel. A bit of strategic humanity in 2002 could have saved all that extra cash for creative projects to further corporation growth–or, more likely, tripling bonuses for C-level executives.

This deserves a book all to its own. But I’d also be interested in an indepth detailed history of the larger universe of notable comic/ fandom trademark and copyright disputes including Superman (Siegel/Shuster), Natl vs Fawcett / Marvel vs DC (Shazam/Capt Marvel), DC vs Bruns, Gerber/ Wolfman/ Friedrich vs Marvel, Warren vs Harris, Gaiman vs McFarlane (Medieval Spawn, Angella, Cogliostro, and Miracleman/Man-of-Miracles), Miracle(Marvel)man, Stan Lee vs Marvel (2002 not Stan Lee Media), Jack Kirby vs Marvel, and hell, let’s even toss in Lucasfilm vs Battlestar Galactica.

My overall understanding of things is that the (admittedly different) courts have been schizophrenic at best over the nearly century of time they’ve been looking at the sausage-making of my beloved hobbies.

Jeff,
So are you thinking that if DC/TW had been “nicer” to the Siegels in 2002, all the subsequent legal wranglings wouldn’t have occurred?
That, I can understand.

BUT, if the Siegels had made up their minds to fight prior to the 2002 settlement regardless of the $ offered (in which case why would they have agreed to it), then no amount of nicety would have fixed it.

All in all, yes, I agree being ‘nice’ solves a heckuva lot more problems than it creates, but at the same time, sometimes you just gotta be a dick in order to get what you want.

JT:

Thanks for your detailed reporting/analysis + I look forward to a book.

JT: I do as well, hopefully it’s not just on this case, but all previous legal cases. Preferably written from the Siegel family POV and explains what they were going through and why they came to that POV, if possible. That’s a book I really want to read.

Yeah, just shocked by how much DC insisted on controlling the narrative of the actual story. It’s the ultimate version of Editorial — making the Siegel life story itself part of approved DC canon. How do you make something work? Fit it in continuity. Really surreal.

[...] More last words on the lawsuit by Jeff Trexler at The Beat. [...]

Hi Jessamyn. I’m so glad you’re a broken record on this issue. I am too, and still feel that the message still hasn’t been repeated often enough.

For my longest piece on this topic, see “Open access for digitization projects,” first published in my newsletter for July 2, 2009 [ http://goo.gl/NPQF ], and reprinted with some revisions in Karl Grandin (ed.), _Going Digital: Evolutionary and Revolutionary Aspects of Digitization_, Nobel Foundation, Royal Swedish Academy of Sciences, April 2011 [ http://goo.gl/bVnSl ].

I’m currently co-convening the National and State Libraries of Australasia (NSLA) Copyright Working Group and read this article with great interest. NSLA has made a commitment to ensure that “public domain works are, to the greatest extent possible, accessible and available for unrestricted re-use by the public.” At the moment we are considering how to make this an easy process, so we are looking at options to: standardise the way we identify our public domain collections in a way that is easy to understand and eliminates complex registration or permission barriers while still maintaining appropriate acknowledgments (for creators and library collections). Here’s the NSLA Position Statement on Public Domain – http://www.nsla.org.au/sites/default/files/publications/NSLA.Public_Domain_Statement.pdf Janice van de Velde

I love Pinterest, the only problem is it is the WORST time eater of all social media (for me), I just can't stop and then I've lost all my spare time.

You've given me some great ideas for next time I dare to sign in.

SueBE--I'm in complete agreement with Kirstie. I hate finding yet another reason to get onto Pinterest. It's addicting. And dangerous. But I will try. I'm finishing a piece set in the swamp. Perhaps I'll see if I can go for a visit...via Pinterest.

I used to hang out in Pin a lot but I didn't like the "thing-lust" factor it created in me or others. I also am wary of the copyright issues. But I think you outlined some very practical ways to use it I hadn't thought of. I appreciate that and may recreate my profile.

This comment has been removed by the author.

Julie,
I'm with you on the 'thing lust' issue. But I also found that now that I've found set ways to use Pinterest, I can look at some of the other things and think "not for me."

Sioux and Kirstie,
I dodge the time factor by getting on Pinterest when I only have so much time. Dinner's in the oven (and there's a timer on) or we are about to go some place. Instant cut off!

--SueBE

I've been experimenting with Pinterest, too. I've been using it mostly in two ways as a writer--one: pinning BOOKS WORTH READING--things we promote here on WOW! that I reviewed/enjoyed AND on my own blog, too as well as what I see others recommend. Then the other way I've been using it is creating a board for my book: Finding My Place. I'm not as good at finding things to pin here since it is set in the Civil War, but so far, I've found a few and managed to pin them to hopefully helpful posts. Personally, I love the recipes and funny sayings on there. But I admit, I haven't made ONE recipe from Pinterest yet. :)

Another useful idea I've seen writers do is use Pinterest as a portfolio for their clips. WOW columnist Allena Tapia has a great one ("My Writing Work"), and she pins her monthly articles we create on WOW because of the awesome header artwork (if I do say so myself, lol). :)

Great post, Sue! It has me thinking about things I can do with the platform. Charlene Oldham wrote an article that has some fantastic advice as well: How to Promote with Pinterest

Great ideas that I'm going to try to implement. Thanks, Sue!

Angela, I hadn't thought about including clips. **Wheels turning now**

Well said!

I'd like to add that, please, once you have read Nicola's well researched and well-pointed post, do spread the word about it! Off to FB & tweet now.

Excellent piece. That article in the Spiegel made me smile so wryly that my face has gone lopsided.

Catherine - it's a classic, isn't it?! I'd love to hear Julia Schramm's side of the story. Perhaps she's changed her mind about copyright :) In which case, hooray!

Oops, clicked before saying thank you to Penny, too. Thank you, Penny!

Isn't it depressing that we need posts like this. It seems so obvious that stealing someone else's work is just wrong - appealing to self-interest, or pointing out the rapacious nature of businesses that profit, that's all a side-issue. It's part of respecting each other - I just wish it were 'taught' as part of being in a family, rather than schools teaching it in special lessons. (Sorry, I sound like an old person!)

Nişan Organizasyon
Nişan Organizasyon

And another reason it is important to respect copyright is because not all countries in the world do and we have to be able to set an example in the English speaking world where it does matter! If we breach our own laws we can hardly campaign for copyright for writers in other countries who often earn even less than our writers do - if they earn anything at all.

Brilliant! Straight to the point of the thing, and without all the buttercream that people like to slather over the issue.

Well said. In addition to the above, as an Illustrator one of my concerns is that my work may be downloaded and used to support issues or ideas that I disagree with.
I am careful to retain copyright on all my artwork and to explain to clients what this means.
Very few people have a full understanding of the rights of creative people. There was a recent discussion online about using found photos or drawings in blogs and I was surprised at how many thought that they did not need to ask permission from the copyright holder to do this. I don't think this is their fault - they genuinely hadn't thought it through and meant no harm - so it is great to have copyright explained as clearly as you have done in your post. I will keep this link for future reference!

Couldn't agree more, Nicola. Thanks for setting it out so coherently! A lot of kids do still think it's okay to download music illegally, but not so much books. When I lived in the Middle East, everyone bought illegal film DVDs because it was the only way to watch a film (no cinemas, censored TV etc), that is also changing with the new copyright laws.

well said and to the point - Thanks Nicola

I agree with you about the copyright issue.

I'd also like to point out that it doesn't just apply to writing. I've seen blog posts by writers, who would never steal another person's writing, which are illustrated with photographs downloaded and used without permission. Remember that whatever it is, if you didn't create it, buy it or ask permission, you don't have the right to use it.

Excellent, thank you Nicola.

I think another attitude which is very common is that copyright only exists if making money is involved. People think it is fine to use somebody else's work if they're not benefiting financially from it.

Excellent post! And Mark's point is a good one!

yes, Mark's point is indeed a good one. And the moral rights are as important as the economic ones.

I also completely agree that we should make sure education about artists' rights very much comes into this, alongside and equal to writers' rights. As I say in the article, it's about creativity and creative industries, in all their forms.

fantastic post, Nicola. And indeed, if presented to them this way, most idealistic young people might agree.

Fab post. The problem is many people don't see it as stealing. They can't see the person or people they are harming. And great point made by Patsy regarding the use of other creative works such as photography.

It would be nice if this kind of education *also* included the ability to exercise one's right to Fair Use and that they only have those choices if they choose to use them.

Just as this thread includes people who don't understand the rights of creative people, many creative people don't seem to understand the rights of others when it comes to Fair Use of their works, which isn't something that any creator can deny.

Chris - I agree. I don't think any of us would seek to deny it. One of the problems with the law as it stands is that Fair Use (the US term) is so difficult to define. But Fair Use is about quoting extracts, not about copying. There is a grey area that demands a decision, which is where Fair Use comes in, but we're talking about moral and legal rights to have a say in how a piece of work is used, within the law. We are not seeking to curb creativity - far from it.

(PS I wasn't quite sure who "they" refers to in your opening sentence?)

This is interesting stuff. I’m bookmarking it to read later.

Interesting stuff. Thanks for making it available in such an accessible format.

Levitz: “I was disappointed when I learned when I learned that the Shuster family filed their termination claim.”

I’m kind of disappointed in Levitz. He comes across as playing a sort of corporate “good cop”, convincing the heirs he’s genuinely interested in Shuster’s contribution to comics history and that the pittance DC’s paying is the best deal he can get them. I don’t know if his interest is genuine, but I can see that by filing the termination, the heirs were able to get an offer, that they rejected, which would have paid a guaranteed $4 million dollars from 2005 to 2033 (and probably considerably more, unless DC was planning on playing accounting games with the profits. Just the 1% cover price royalty on comics should cover the guaranteed amount with just direct market sales), more than five times that deal Levitz got them, even assuming DC was willing to modify that deal to cover Shuster’s nephew and niece after his sister passes away.

How scary. Okay, heading over to my blog to remove pictures. Thanks for sharing.

Thank you so much for sharing this! I think it's easy to get lax with using photos, so good to be aware!

Wow, that's scary. I'm going to go remove pictures from my blog right now.

A friend from twitter posted your blog. Thanks for the information. I have to go through my blog now. I don't know how long it'll take, but I appreciate the information.

Wondering if this applies to including quotes on your blog. Last night on my I quoted Ted Geisel. Listed it as his quote and all, but should I take it down? Anyone know?

Which is why P&E requires authors to provide their own banners or cover scans for use on P&E in the new books section. We do try to always respect copyright even though others have used some of the editor's written work elsewhere and some of those should have known better, especially when it's a newspaper. So please take the guest blogger's advice and akways respect copyright.

This has worried me ever since I started blogging some even years ago so I have never used an image - and that includes videos -without the agreement of the creator. The one photo on I have used came from a friend and I have her agreement in writing.

Would popular .gifs widespread on tumblr from TV shows and films need to be taken down? I've seen that stuff duplicated and recreated all over tumblr, and people don't seem to care much, but I wonder how safe it is if you were to post one on your blog...

I think book covers on review blogs would be okay though.

It's really sad that an innocent blogger can get into so much trouble over a picture. But I understand where the owner of those photos are coming from :P

Great points here about copyright, and I'm sorry to hear that you had to learn the hard way. Just wanted to bring to your attention that (ironically) you've miscredited that quote to Oprah, when credit is due to Maya Angelou.

Roni, I'm sorry you had to go through all of that! Thank you for spreading the word to the rest of us.

I'm sorry this happened to you.

While the photographer was legally in the right to ask for a huge sum of money because you used his photograph, I think he is an absolute jerk to do what he did.

Well, Anonymous, I supposed I'll be anonymous as well and tell you that the photographer was asking for payment for the use of his services. We don't go to the gas station and use their gas then call them jerks when they ask us to pay for it. If we unknowingly pump gas, we still have to pay for it. It is sad that the blogger had to pay money that she didn't have, but as she says, she was in the wrong. My work gets stolen and used, and whenever I can track down who is stealing my images, I also ask for compensation. It is fair to be paid for my work and my time creating my work. I am glad that she is spreading the word so that others don't make the same mistake and break the laws.

Roni, thanks so much for sharing this. I'm so sorry for what you've had to go through. As an attorney, I can imagine how stressful and expensive it's been. It's making me glad I don't use Pinterest though I wanted to sign up.

This article is really worth reading, it has too much details in it and yet it is so simple to understand, Thanks for sharing the picture it has great detail in it and i really appreciate your true artistic work!


High School Diploma

Thanks for sharing this. I tend to stick to my own pictures and book covers (if I'm blogging a review). Boy, am I glad of that now.

Pinterest is very worrisome, and I have been considering not using it at all. It could get very tricky...

Yikes!!! Thanks so much for posting this. I had no idea either. I should tell my daughters about this. They're constantly posting pics to their Tumblr's. I'm afraid their allowance will not cover legal fees.

Thanks again!

Does anyone know if reblogging on Tumblr counts as infringement? I have only been on it a few months but read that reblogging is fine since it links to the original blogger. If that is not the case, I don't want to reblog ever again! Thoughts or knowledge on the subject?

Thanks for the great post! I'm going back through my blog now! And sorry you had to learn the hard way. I'll take your advice and learn from you.

I agree with Anon 1:45am. You use their work, you should pay compensation for it. The only thing jerkish about this situation is infringing on another artists work.

I'm sorry this happened to you, Roni Loren, and that you had to learn the hard way. This is something I learned during my first semester of college when we learned how to use the Internet and find credible sources. We also learned a little about copyright and what we can and can't use without permission, so I've known this since my first days of college and have never forgotten that information. I use images that are explicitly free from free image sites or I take my own photos, photoshop them, and use them (which I love to do).

I've seen many writers ask these types of questions about pictures and song lyrics and quotes from other books, etc. My answer to them is to ALWAYS consult a lawyer. NEVER get your legal advice from some random stranger on the Internet or from someone who's not an Intellectual Properties attorney. If the layman giving you advise is wrong then YOU'RE going to be the one being sued, not them. But alas, most people ignore my advice, mostly because they probably can't afford to consult a lawyer or don't want to put in the effort to do so. I can't say I care, because I won't be the one getting sued, if it ever happens to them.

Alas, lesson learned in Roni Loren's case. Unfortunately, it's the hard way. I'm wondering if it cost more to pay for the use of the photos (and lawyer to solve it) than it would have been to consult a lawyer beforehand.

I have to agree with the "absolute jerk" comment above, although I would substitute "colossal" for "absolute," and possibly follow it up with something about his petti- and greediness. At any rate you're welcome to use any of my photos from my Flickr page for your blog posts, if that helps.

http://www.flickr.com/photos/alvinsloan/sets/72157626623623983/

As an artist AND a writer, I've had my illustrators used and posted without my permission, well, constantly. There's one on tumblr with tens of thousands of reblogs. Is there any credit to me on it? No. People have tried to fix it by adding notes to the bottom or links to my site, but the reblogs come from the journals who don't give credit. Worst of all, the image was altered (severely cropped), so it's not even an entirely complete piece! I've yet to report it (I've done that with other heavily reblogged pieces with no credit to me), but it bothers me so, so much when I think about it. Because when I post my own work, I get a dozen or two reblogs at most. That's it. Imagine if credit was on the picture getting circulated in front of THOUSANDS of pairs of eyes. Frustrating doesn't even begin to cover it.

Unless someone's benefiting monetarily from illegally using my illustration, or they've used it in promotional materials or invitations or something else much greater than a blog post, I would never, ever demand compensation. I've known professional designers who were also in a situation where their work was used without permission, but they usually warn first, and only sue if the person does not cooperate or has used it and made money.

Still, in an age of Pinterest (which I despise because, again, I get a lot of pins without credit) and Tumblr, it's good to make people aware that credit goes a long way. And better still does permission. (I do hold most of my art within creative commons licensing so people are free to use it for non-monetary gain but, again, for every generous, thoughtful person are ten people who take my work and do whatever they want with it.)

Tumblr is not simply a free stock photo site, and neither is Pinterest.

Great that you've shared this. It's a minefield out there knowing what's free to use and what's not. I take thousands of my own photographs and usually use those, but it is too easy to grab a google image. Strangely I've found some of my images on google images. How did that happen?

Anyway, I've been contacted by google a couple of times - once when I'd had a picture up a year ago. So there are a couple of scary groups whose job it is to scour the blogs etc for copyright infringement. So it's a great idea to take down even old blogpost pictures as you've done.

Oh I see the dreaded Captcha Codes, grr.

Denise

Im sorry it was wrong to post a copyrighted photo...but it was taken down and no harm was done. He wanted an obscene amount of money and got exactly what he wanted. Its called greed. You dont want your photos being displayed by others properly display that they are copyrighted oh and maybe keep them off the internet. Just saying. You dont want it shared then dont put it out there to be shared. Theses opinions are mine and solely mine. Sorry I think it is a bunch of bs. Going after someone for money when they put themself in the place to have their stuff displayed via internet.

Thanks for sharing! I rarely use photos, but this is definitely worth being aware of.

What always bugs me about this type of story is that it makes no sense for most owners of a photo to get upset that someone used it in a non-profit blog, because it basically serves as free advertising for the owner. I myself have discovered artists that I have gone on to buy prints from due to first stumbling across one of their pics on a blog. If that pic hadn't been there, I may not have ever discovered the artist.

Would I want someone taking my entire novel and posting it somewhere? Right now I don't mind (I have it posted myself on Authonomy) but when I'm a published author I wouldn't be as happy. BUT, I would be thrilled if anyone excerpted my novel in their blog posts, as I would see that as free advertising, not as ripping me off.

This question has always worried me as it's so difficult to get the definitive answer on what you can and can't use and there is no question, blog posts do look more inviting with some illustration. So, I really appreciate the post and am off to work out what is, and isn't, safe to leave up.

It would be so much easier if search engines had some simple device to show what was free to use and what wasn't. I've been working off the theory that I could use it if it wasn't water-marked but I realise, now, that this was a little naive.

Many thanks to Roni and all concerned for the post.

Anonymous 7:03 PM,

you said: "You dont want it shared then dont put it out there to be shared."
What makes you think that the photographer was the one who put it out there? Just the fact the the photo is available on the internet doesn't mean that the owner put it there; on the contrary, comments above show that photos are often copied without the owner's permission or knowledge.

Also, may I ask how you reached the conclusion that: "He wanted an obscene amount of money and got exactly what he wanted."

Ms.Loren wrote only that "He wanted compensation for the pic. A significant chunk of money that I couldn't afford." The fact that she couldn't afford this sum of money doesn't necessarily mean that the photographer was asking an unreasonable amount for the use of one insignifcant photo; he may well have been asking for his usual fee for allowing his work to be used, many sucessful professionals can and do charge significant amounts for their work.

Since Ms.Loren does not deny her liability, I am assuming that the legal debate was to settle on a fair and reasonable amount of compensation. Perhaps the photographer was asking for too much, perhaps he was too angry about the unauthorised use of his work to see Ms.Loren's side of the argument, perhaps he even wanted to make an example out of this, so that it wouldn't happen again.

If the last is true, it certainly worked. If the whole thing had stopped with Ms.Loren's taking the picture down, if she hadn't gone through this worrisome and expensive process, would she be making such a point of warning others?

Fabulous post. Personally, I've never posted anything other than personal photos, book covers of guests (and mine, of course), and photos taken and provided by guests illustrating their blogs. I'm not tech savvy but even if I was, I wouldn't use any other images for these very reasons.

I find this whole thing completely ridiculous. I just deleted thousands of pictures from my blog because of this BS. What about all those sites that do nothing but post pictures found on the internet..why are the photographers going after them?

If you post a picture online you should EXPECT it to be copied and posted at other places. A blogger should not be able to be sued for thousands of dollars for posting a picture they found online.

I loved the thought of everyone posting free pictures that they have taken with their cameras for their own use. Or even free pictures they have used from different sites.
Ones that won't get us into trouble if we reuse them. I can see a page on Pintrest with "all these pictures that are here can be used by the permission of the creator."

Aah, if only someone would start the share page.

Moi? I'm an absolute computer illiterate and still trying to figure out how Pintrest and Good Reads work.

Any volunteers? We can spread the word and ask for free pins on FB.

Or maybe this is a stupid thought.

I think the photographer was greedy and should have been satisfied when Ms. Loren took down the photo. Personally, I think copyright laws are the terrible combination of way too strict and sporadically enforced--the online equivalent of a speed trap.

The photographer needs to find a better way to make revenue, rather than hunting down bloggers and suing them. How petty. Or get a different job. Or realize times are a-changing and the internet is a place where ideas are freely shared. The blogger wasn't stealing your work--she was promoting it. And her intentions were good. To the photographer: be a better human being and have some understanding for fellow artists who are also not rich and trying to share their vision with the world.

*sympathy cookies* Roni.

I admit that I'm a little perplexed that so many advocate copyright infringement on pictures/photos/illustrations. Just because it's on the Internet does not mean it's free to use.

As an author, I would be upset if someone was posting my novels, in part beyond fair use or in whole, without my permission. I would NOT look at it as someone promoting my work--especially if they also failed to attribute it properly.

So many authors get upset by literary pirates, why shouldn't artists get upset when people pirate their work?

One of my goals in writing is to be able to earn enough to support myself. Why on earth should I get a different job or feel complimented (or promoted) if someone steals my work? What's good for the artist is good for the author. Shouldn't the creator have a say in how and where their work is displayed?

I do want to note that I admire Roni for her honesty and for being willing to help others learn her experience.

I know a couple of fellow writers who were seriously concerned about posting pics on their websites because of not being able to properly credit the photog in question, and they took it upon themselves to replace the photos with ones from a royalty free photo service.

For me, I basically use photos that I've taken in the past three years, and recycle when I can.

I'm an author. I'd hate it if someone posted my fiction online without compensating me... after all, I make my living off my fiction.

Even if someone posts something and takes it down, I know from experience it will still be up. Bots or who-knows-what will have copied it and it will still be available online. Content spreads exponentially. Once on the internet, always on the internet.

Seems like we writers ought to be sensitive to this issue if anyone is.

Thank you so much, Roni, for sharing the details of your unfortunate experience...AND for the very good advice. I'm just launching a new blog and I'd been blithely (and foolishly) picking out photos from Google Images and thought "Oh, if I crop it, change it, just use this corner of it, it's OK to use, b/c it's not the same as the original, entire image."
Well, DOH!
Back to the drawing board, and to Flickr and Creative Commons!

DMac

Hi Agent Kristin. I was wondering have you every publish the works of an 18 year old?

THANK YOU for posting this! I've been wondering what to do, and had even started attributing pics.

Time to start finding CC replacements...

I did have a law firm show up in my stat counter re: a photo I'd used. Nervous perspiration ensued.

I have to be honest I'm quite surprised by how many authors seem to think that this is unfair and the photographer is being outrageous. As if the guy doesn't have the right to deserve a living. It's only free advertising if the poster links back to the photographers website. I have never seen this in all the author websites I've visited. I'll bet that these are the same authors who screech so loudly about ebook piracy. Seems like it's ok to infringe someone else's copyright but how dare anyone infringe their copyright.
nonny99

This is all so confusing. Do I understand it is okay to use CC license and royalty free pics? I use my own photos a lot on my blog, so I imagine some of them have been copied to other blogs. If I were a professional photographer, I would definitely want compensation for a photo or at least attribution. I think we also have to keep in mind music on trailers should not be used without permission and/or attribution.

If you have a bit of drawing or graphic design experience, I suggest just making your own graphics.

Whenever I post something on my blog, I just make a quick sketch/doodle and give it a dash of color in Photoshop with a brush set to look like a watercolor. Takes about 15 minutes and has a loose style I like - and avoids any copyright unpleasantness.

Thanks for reminding us all about digital copyright issues!

Thank you, Mary Lee, for this post. I came to it right after reading Kate's words. Such reminders are important. I hope that your summer and writing life are treating you well!

What a great post, Mary Lee. It's great to have this reminder from time to time. And it's something I am always addressing with students.

Important message.

Our media specialist does a PD about copyright every year. Like Jone, I'm always reminding my students about this issue.

Good stuff, Mary Lee. Perhaps students may *wish* that someone they didn't know would want to post their stuff, and not really get that someone else wouldn't feel the same way. So they may understand that other artists wouldn't want their work changed, but not understand that they wouldn't want it shared.

Such an important reminder.

I would love to hear J.Patrick Lewis'response. Sometimes when I review a poetry book, I'm tempted to include one poem so that people can get the flavor for the book. Wonder how poets feel about that?

Thanks!

Hi Mary Lee. Interesting exchange. I've taken the cue from other Poetry Friday participants on the "How much to share?" issue, but when I made my debut at The Hardball Times, I really wanted to share a poem by Marianne Moore in its entirety, so I searched around and found this:

http://www.centerforsocialmedia.org/fair-use/related-materials/codes/code-best-practices-fair-use-poetry

Not sure how much authority this has, but I found it very compelling.

-Ed

A swashbuckler of a bow to you, Mary Lee, for taking the time to respond so thoughtfully. My query had to do with famous poets and poetry. For those of us who aren't famous, I would want to see our poems get the widest possible exposure. Gratis, of course, on blogs.
Adoption in textbooks, anthologies, and the like are an iguana of a different hue.

Interesting post, Darcy--I hadn't heard about the NTY controversy, but I bet that guy never even thought about the whole "rights" issue, which is a whole other can of worms.

For everyone who has copyright questions, I am currently editing an issue for WOW! all about copyright laws/issues, and it will be in the July issue!

Thanks, again, Darcy.

It's funny that you mentioned this because we had a similar experience a while back. One of our blog tour hosts was upset because she found out the touring author had posted the same guest post elsewhere. She said, "She's an author who doesn't create original content for her blog tour stops and self-plagiarizes her own post word for word . . ." And I said, "Huh?" It was the first time I'd ever heard anyone use the term plagiarize about a person using her own work! Yes, that goes against the definition!

Anyway, the whole double post was something we don't allow on tours and an honest mistake from the author, but it blew my mind that this blogger was so dramatic about it. And it sounds like the people who called Lehrer a plagiarist are a bit over dramatic, too.

I conceive this web site has some very good information for everyone : D….

I think it was a lamentable misstep when the legislature removed the requirement to apply for copyright extension.

Thank you for the information. Does the same hold true for products? Can a scene take place in a Starbucks, for example? Or does it need to be a coffee shop that just happens to sell travel coffee mugs, cd's, have a greeen logo and offer grande lattes?

What about music references? I'm assuming when it comes to naming musicians/bands it works the same way.

Specifically though, what about using the lyrics in a song? Would we need permission for this?

What about Adam Levin, who used Philip Roth as a character of his books, could it have created problems?

To kind of copy off of Norma Jean's question: I've heard that song lyrics are difficult to use and should be avoided. But based off what you said if I had a character go to a Rolling Stones concert, that'd be okay?

I'd often wondered about this. Thanks!

This really is one of those times where having a publisher and good copyeditor does come in handy. They will tell you, during edits, what can and cannot be used without permission.

Thanks for this topic. I recently had one of my characters quote a movie character – the infamous line, “I don’t think were in Kansas anymore, Toto.”

I also am interested on how it works with song lyrics. I have another character sing a song from back in the 1970’s. I worked it in and gave credit to the singer/songwriter in the text leading up to where the character starts singing the lyrics to song.

Keep in mind that the answers to some of these questions are going to come down to what a publisher and/or the publisher's legal team will allow. Here are my answers though:

Yes a scene can take place in a Starbucks, McDonalds, or Gap

It's okay to name musicians or bands and have your character go to a Rolling Stones concert. Song lyrics are very tricky and you definitely need permission to use them. Personally, I would avoid song lyrics.

I don't know about Adam Levin using Philip Roth. He might have gotten permission and yes, I suppose Philip Roth could have sued had he been unhappy or felt it defamed his character.

--jhf

I recently had one of my characters quote a movie character – the infamous line, “I don’t think were in Kansas anymore, Toto.”

What's infamous about that line? "Infamous" means "deserving of an evil reputation."

This isn't a COPYRIGHT question; it's a TRADEMARK question. You can't copyright a name or idea.

You can use trademarked words in your book so long as they are not being used to SELL the product. Can't be on the cover or in the title or press material, etc.

An off-handed reference to Nancy Drew or any other trademarked thing is no problem.

We should also note that it would be perfectly fine for you to use Nancy Drew as a character in your novel if those books were in the public domain. This is why Alan Moore could recycle characters from 19th-century classics in The League of Extraordinary Gentlemen and Seth Grahame-Smith could write Pride and Prejudice and Zombies.

Otherwise, yeah, you can totally make a reference to a character/product/band/whatever without gaining permission. You might run into defamation issues if you're really negative, though.

I'm going to take this in a slightly different direction. I agree with the Bookends comments about how these are problems for the Legal Department. But burning questions about whether or not you can set a scene in Starbucks, or quote an oft-quoted Wizard of Oz line speak to something else, for me.

These are problems that can easily be addressed by someone else, after the book is written, re-written, polished, Agented and sent out for sale. Not something to worry about during drafting. Or pre-drafting. Or revisions. And I know that when I become overly worried about such things, I'm using it as a way to avoid writing the dreaded Middle, or a difficult scene, or revising.

I would say, leave this stuff to the experts. Concentrate on the story, your characters. Work on "Being More Awesome". The Starbucks trademarks will take care of themselves. Or rather, somone with expertise in the matter will take care of it, and you'll THINK it took care of itself.

Another related question: Can you give your character the same name as a famous character? Using the Nancy Drew example, if your MC's parents were detectives with the last name Drew and they had a really lame sense of humour, could they name their daughter Nancy? I don't see why anyone would want to have their main character named Nancy Drew, but I'm just curious.