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.

13 November 2010

link to: 16:16 [GMT-6]

The Million-and-First Little Lie

Just a short note today on James Frey's apparent inability to learn, especially regarding ethics... and how that affects authors, and particularly authors who have stars in their eyes regarding "new publishing paradigms."

Leaving aside whose fault the whole fiction or memoir? controversy was — it was at least partly the publisher's own damned fault — Frey has branched out into being a book packager at Full Fathom Five llc. There's a story on it in New York Magazine, but it doesn't even begin to get to the real perfidy: An author acting even worse as a publisher than commercial publishers. I couldn't even get more than halfway down the first page without wanting to strangle someone:

This agreement, dated as of June 17, 2010 (the "Agreement"), by and between Full Fathom Five, LLC ("Company") and Suzanne Mozes ("Writer"), is in connection with Company's engagement of Writer on the writing of the initial book in a possible series of books based upon a story idea owned by Company currently entitled the "Untitled Magic Painting Project" (the "Book"). (The Book and any subsequent book in the series are collectively referred to as the "Series".) In consideration of the compensation set forth in Paragraph 4, Company's contribution of original creative material to the Book, Company's efforts to secure a publisher for the Book, the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of Company and Writer agree as follows:

1. Engagement / Services. Company hereby engages Writer on a work-for-hire basis, under the supervision of and in collaboration with Company, to write an outline of the Book (the "Outline") and an initial manuscript of the Book (the "Initial Draft") and any revisions to the Book as requested by Company.

[Proposed] Agreement of 27 Jun 2010 (PDF) ("Mozes Proposal"). Let's start with the most-obvious problem: This contract violates the Copyright Act.

The work-for-hire doctrine is almost unique to American copyright law, at least for non-employees. Its limits are defined in 17 U.S.C. § 101. The particular definition is divided into two parts: Works by statutory employees, and works by freelancers. Work-for-hire by freelancers is restricted to:

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.

Let's see where Frey's effort fails:

The contract probably constitutes a special order or commission, although I'm skeptical as to whether the specific description actually constitutes a "commission" — without appending the other specifics, it's too vague
The contract certainly would be a written instrument designating the output as WFH, but
The work does not fall into any of the categories of works eligible for freelance WFH treatment. It is (at least based upon the description in the contract and accompanying article) clearly not part of a motion picture or other audiovisual work; or a translation; or a compilation; or a supplementary work; or an instructional text; or a test; or answer material for a test; or an atlas. That leaves only — possibly — a contribution to a collective work... and this particular example comes nowhere close. Book-length works of prose, or a series of book-length works of prose, are not within this scope.

But it gets better...

... because there's another highly dubious claim buried in that opening paragraph: The assertion that "a story idea owned by Company" is the basis for the contract. No, no, and yet again no. "Story ideas" are not subject to ownership under the Copyright Act. The only possible bases for such a claim of "ownership" are:

A trademark or trademark-like claim — which requires a preexisting commercial exploitation to be valid;
A trade-secret claim — which will be forfeited upon submission of the manuscript to a publisher (particularly since the confidentiality clause, ¶ 11, does not designate the "story idea" as confidential);
Some variety of unfair competition claim — and no such claim will survive under New York or California law. A Desny claim (under California law) would exist only for screenplays and teleplays, not for prose works.

Mr Frey needs an Atomic Wedgie; so does his lawyer. And authors should run away from Full Fathom Five until it, and its principal, grow up.

Labels: copyright, intellectual property, publishing

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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 (Loyola-LA Law)
- Professor Brian Leiter (U of Chicago Law/Philosophy)
- Professor Lawrence Lessig (Stanford Law)
- 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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