Scrivener's Error

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Scrivener's Error	Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

16 April 2007

link to: 07:29 [GMT-8]

Disjuncture, Not Just Dissonance

The Monday Morning Miscellany will be even more disjoint than usual this week. Any extra typos are the result of multitasking (such as being on ignore with an insurance company) and teenagers and their distractions (like school conferences set for this afternoon).

Lots of Harry Potter-related stuff is going on. On the one hand, we've got the whole question of Potter fansites, which actually get quite a bit of respect from Joanne Rowling. It's easy to understand, in her particular situation, why the flattery (and, in the case of the three or four leading sites, refusal to become clones of the tabloid press) would overcome any other objections. It's not so easy to understand, though, why she'd consent to a Harry Potter themepark... until one remembers that she probably doesn't have that control. The "standard" film deal — and those aren't just scare quotes; almost everything is negotiable, except this item — passes theme/amusement park rights to the studios. They simply won't give them up.
Remaining in the surreal world of film, at least for the moment, we've got lots of dubious financing in the news. On the one hand, Toronto should probably apply for affiliate status with Los Angeles County, given its increasing status as Hollywood's home away from home. Hopefully, a few more movie moguls will choke when presented sausage rolls instead of California rolls. Then there's the eternal question of why it costs $10 to have one's intelligence insulted by 78 minutes of Pauly Shore clones onscreen. One obvious answer: movie budgets. Or, of course, one could just stay home — avoiding stale popcorn, sticky floors (I may not be a great housekeeper, but spills get cleaned up right away here), shrieking preteen girls, and cellphone users — watch a film on one's own schedule... however one gets it. What this implies for publishing has the Big Five running around like chickens with their heads cut off. (Of course, that's not discernably different from any other time.) If writers could unionize, perhaps this would be different.
Then there's the question of what ends up on screen in the first place. Part of the problem is simple: Contrary to public expectation, a novel is not the most-suitable length for a film of 90 to 110 minutes' duration. Particularly in this day of 500-plus-page blockbusters, that's simply not going to happen. Conversely, the short story isn't meaty enough most of the time. The most-suitable length is probably in the 15,000–30,000 word range — the novelette and novella. And, outside of category fiction and the occasional story collection, those works just don't fit the commercial periodical market very well... and, therefore, don't get a very wide readership. Instead, screenwriters/directors/et al. must condense novels for the screen, which inevitably makes them seem somehow "thinner" than the novel. And that's a critical reason that great novels seldom make great theatrical-release films.
Sarah Weinman notes the phenomenon of ghostwritten bestsellers. We expect it in celebrity biographies, but only insiders (and silly people who actually read with their brains on) are probably aware of just how widespread ghostwriting is in disposable fiction. I don't have a problem with this... as long as the actual authorship is clearly, and honestly, stated on both the copyright and title pages and the cover of the book. If James Patterson wants to publish "A James Patterson Book," that's no skin off my nose. His claim of sole copyright, though, does put my nose a bit out of joint... as the contracts explicitly disavow an employer/employee relationship (therefore, they're not WFH under the first clause of the definition)¹, and "book-length work of fiction" is not one of the proper subjects of a WFH (look carefully at the second clause). Sorry, guys — you shouldn't be able to claim the benefits of being an employer-for-hire without accepting all of the responsibilities, such as the employer's share of payroll taxes (a nice little 7.65% additional bite out of the ghostwriter's pay). Didn't I just say something about "unions" and "writers"? But I suppose it beats the concept of American Idol for writers.
On the other hand, this all seems rational compared to the problems in the "high arts." Consider the dance community's historical denial that dancers have human bodies. It's been most obvious in female body image (fortunately, that may — and I emphasize the conditional — be changing), although height-awareness isn't going away any time soon. It's also been obvious in the concerted efforts of the justly denigrated Pulitzer Prizes to ignore anything not "classical" in orientation. There are rumors that the lists due out later today may represent a change, but I'm not holding my breath. Neither is my neighbor, but then she's a DMA student flautist, so "holding her breath" would be a bit strange.

See 17 U.S.C. § 101's definition of works for hire:

A "work made for hire" is —
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

I suspect that the usual argument would be that these particular book-length works of fiction are "a contribution to a collective work," but that's inconsistent with the plain meaning of the term, the publishing industry's historical use of the term (which distinguishes between "collective" and "joint"), and the legislative history.

Labels: arts, copyright, mass media, miscellany, publishing

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Archives

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Links of Interest

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Writer Beware and the Writer Beware Blog provide essential knowledge for writers who don't want to be ripped off
Writing-World.com published by the former managing editor of the now-defunct Inklings
Agent Research & Evaluation provides both free and paid analyses of literary agents
US Copyright Office, including both registration forms and records and quite a bit of other helpful information
Trademark Electronic Search System (TESS) allows searches of granted, pending, and some rejected trademark registrations
US Supreme Court Opinions from the current and past couple of terms
Law Library of Congress includes statutes for free
The Public Library of Law can help you find the law... but not use it in court, as many of its resources are not in proper form and do not provide all of the citation information needed in court papers
Legal, free e-books are available through Online Books (University of Pennsylvania) and Shakespeare (MIT)
Legal, free music is available through
- ClassicCat.net (what kind of music do you think you'll find here?)
- Music.Download.com (long-awaited successor to MP3.com)
- Janis Ian (artist)
- John McCutcheon (artist)

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

A blawg is sort of like a blog on legal issues, but usually has a lot more links to outside resources (other than other blogs) than does a typical blog. Scrivener's Error is a blawg, not just a blog. You can find other blawgs at < ? law blogs # >.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the Supreme Court, don't forget SCOTUSBlog.
Some academics' blawgs with a variety of political (and doctrinal) viewpoints:
- Professor Anthony Arend (Georgetown Law)
- Professor Stephen Bainbridge (UCLA Law) (aka "The Perfesser")
- Professor Jack Balkin (Yale Law)
- Professor Dennis Crouch (Missouri Law) (better known as Patently-O)
- Professor Michael Froomkin (University of Miami Law)
- Professor Eric Goldman (Santa Clara University Law)
- Professor Rick Hasen (UC-Irvine)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Michael Madison (Pitt Law)
- Professor Rebecca Tushnet (Georgetown Law)
BoingBoing, by speculative fiction writer (and 'net activist) Cory Doctorow, is quite hostile to copyright enforcement efforts, particularly regarding file-sharing
The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance
Cyberlaw (Stanford) has its agenda grounded firmly in the so-called "digital commons," which might make a bit more sense if any of the advocates of that viewpoint understood diddly-squat about population ecology
The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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