Oftentimes, a year may go by without very many remarkable copyright cases. However, this year, several cases have come to the fore that authors should know about.

Hachette v. Internet Archive: This case, first filed in mid 2020, revolves around publishers suing the Internet Archive (IA) for scanning thousands upon thousands of literary works and distributing copies for free online. Initially, the IA insisted that the titles on loan corresponded to a legally purchased copy, thus operating like any library on a one-to-one basis, but during the COVID-19 pandemic, the IA ended the restrictions and allowed up to 10,000 copies of a title in its collection to be “loaned” free of charge at any one time.

The case revolves around the principle of Fair Use. The IA considered its use transformative and that the lending of multiple copies for free would not harm the publishers and authors of the books. However, in March of 2023, the District Court for the Southern District of New York ruled in favor of the publishers, stating that, as the works made available were protected by the copyright laws of the United States, the IA’s distribution of copies of whole works negatively impacted the publishers’ rights to distribute digital copies of the books to the public and to libraries through regular distribution channels.

Andy Warhol Foundation v. Goldsmith: In another case revolving around Fair Use, the Andy Warhol Foundation sued photographer Lynn Goldsmith for a declaration of noninfringement over the late artist’s usage of one of Goldsmith’s photographs of the musician Prince in a series of silkscreens.

Authors may wonder at the term “declaration of non-infringement,” but it is indeed a legitimate thing. In front of a federal judge, or via the Copyright Claims Board (CCB), a plaintiff may effectively ask for a decision that states no infringement prior to being on the receiving end of a copyright infringement suit.

This case was litigated in a district court and then in several appeals between 2017 and 2023 where the judges ruled for and against the plaintiffs until the Supreme Court of the United States took on the case. On May 18, 2023, the justices handed down a 7-2 decision in favor of the photographer, stating that the usage was not “transformative” simply because of the infringing party’s intent (in this case, Warhol). What this means is that the degree of transformation in an infringed work cannot be so wide as to limit the original rights holder’s right to make derivatives in their work (which is a principal right under U.S. Copyright Law).

Our final case in this round-up, Silverman et al v. Open AI and Meta still remains to be decided, but it is a case that authors should keenly watch as it puts all creatives up against new technological advances in artificial intelligence (AI). Although the U.S. Copyright Office has issued guidance stating that AI-generated materials cannot have copyright protection, the crux of this case rests on the use of creative materials (books, comedy sketches, and other works) to train generative AI in the creation of new materials. The suit maintains that individuals and companies using generative AI should obtain proper licenses for the usage of their materials in training the AI. Further, the suits allege that any AI-produced materials constitute a derivative to the original works. To date, there have been motions to dismiss these cases, but so far the courts have not determined a need to dismiss. It will be interesting to see how these cases are decided, and what impacts any decisions may have on future contracts and works.

Copyright law provides authors certain protections in and to their works, so it behooves creatives to keep a close watch on cases involving copyright disputes that come in front of both the Supreme Court of the United States and the newly organized Copyright Claims Board. In doing so, authors are better armed with the knowledge they need to help defend their intellectual property against unlawful use that could cost them revenue.

Mary Jo (“MJ”) Courchesne is the owner and principal consultant of Gryphon Publishing Consulting. A publishing veteran with more than 20 years of experience in trade, academic, and direct-response publishing, she has spent nearly two decades specializing in licensing, subsidiary rights, and permissions. MJ is a frequent and polished presenter on licensing and copyright, instructing future publishing professionals in the George Washington University’s Masters in Publishing program for the last 16 years. She currently serves on the Board of Experts for the National Association of Independent Writers and Editors, serves on the Advocacy Committee for the Independent Book Publishers Association, and holds memberships with the Book Industry Study Group and the Society of Children’s Books Writers and Illustrators.

Say that you’re ready to license the rights to your titles. But where do licensing activities fit into your publishing timeline?

As your spring and summer titles release to consumers, licensing professionals continue to push for additional placements in 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 Gryphon Publishing Consulting, we are updating our international partners constantly.

Mary Jo (“MJ”) Courchesne is the owner and principal consultant of Gryphon Publishing Consulting. A publishing veteran with more than 20 years of experience in trade, academic, and direct-response publishing, she has spent nearly two decades specializing in licensing, subsidiary rights, and permissions. MJ is a frequent and polished presenter on licensing and copyright. When it comes to intellectual property, she firmly believes that everyone from authors to publishers to corporations should know their rights. To that end, MJ instructed in the George Washington University’s Masters in Publishing program for 13 years, first for 11 years as adjunct professor for a course titled Editorial Content, Rights, and Permissions and subsequently as lecturer in a course on copyright. She currently serves on the Board of Experts for the National Association of Independent Writers and Editors and is a member of the Independent Book Publishers Association and the Society of Children’s Books Writers and Illustrators. MJ has also held memberships with other publishing organizations such as the American Society of Picture Professionals and Washington Publishers.

Sometimes, when you’re creating a work, you find just the right quote, passage, or photo that you want to use that will underscore your point or bring something special to your work. Seeking permission to reuse that material might seem an onerous task. Should you just rely on Fair Use and insert that third-party material into your work? 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. Thus, infringement occurs when another party uses, represents, or adapts another person’s intellectual property as their own without proper permission.

That said, a statutory framework called Fair Use (in section 107 of the Copyright Act) exists as part of U.S. Copyright Law. This provision provides for reuse of materials without permission under certain specific circumstances, but 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. These factors are:

1. 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.)
2. The Nature of the Copyrighted Work (Or, how the new work relates to the original. Here, a more creative work is less likely to enjoy protection under fair use than a factual work. Further, using an unpublished work is less likely to be considered “fair.”)
3. Amount and Substantiality of the Portion Used in Relation to the Whole (In this case, 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.)
4. Effect of the Use on the Potential Market or Value of the Original (In this case, whether the new work might “take away” sales or perceived value from the original work now or in the future.)

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

You should consider Fair Use when creating your new work and use these factors as guidelines for how a judge might decide an infringement suit against you. Although all four factors are considered together, the first and fourth factors tend to be weighed more heavily. However, each judge will use previously decided cases to inform their decisions. One thing to keep in mind is that if your work is meant to be sold for a profit (and in reality, many of us are rightly interested in profiting from our work), and your work might also compete against the original work in some way, then it’s entirely possible that you might be found guilty of infringement.

Unfortunately, there have not been any bright-line rules that you can apply to Fair Use in terms of number of words or amount of a work (cropping, alteration, etc.). Fair Use becomes particularly difficult to decide when the original work is a song or a poem, which is by nature a much smaller composition with more at its essential “heart” that, if borrowed, could be considered infringing.

All of this said, the U.S. Copyright Office has now created a Fair Use Index, which provides 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. You should consult your legal counsel for their opinion on your usage if you are unsure. 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.

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.

Legal note: This article is provided as educational reference material only and does not constitute formal legal advice. You must consult your own legal counsel to determine whether any of this material is appropriate for your needs.

Mary Jo (“MJ”) Courchesne is the owner and principal consultant of Gryphon Publishing Consulting. A publishing veteran with more than 20 years of experience in trade, academic, and direct-response publishing, she has spent the last 18 years specializing in licensing, subsidiary rights, and permissions. MJ is a polished presenter on copyright, and she firmly believes that everyone from authors to publishers to corporations should know their rights when it comes to intellectual property. To that end, MJ served as adjunct professor in the George Washington University’s Masters in Publishing program for 11 years, instructing a course titled Editorial Content, Rights, and Permissions. She has also presented sessions on rights at the Independent Book Publishers Association annual conference and is a member of IBPA as well as other publishing organizations such as the American Society of Picture Professionals, the Society of Children’s Books Writers and Illustrators, and Washington Publishers.

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 U.S. 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 via paper, canvas, or other “solid” medium or with the aid of a machine or device such as a computer or e-device.

What does this mean? Well, essentially, you do not have to register your work with the U.S. 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.

With that said, you may still 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 five years of creation, it provides “prima facie” evidence of the validity of the copyright and the facts stated in the certificate.
• If registered within three 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.
• 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 will do is prove the date you mailed it to yourself. 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 online registration of a book with one author or artist, the fee is $35 for registering online.

Perhaps the best part? You can do it yourself without paying a lawyer to do it.

Why not protect your intellectual property?

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

Mary Jo (“MJ”) Courchesne is the owner and principal consultant of Gryphon Publishing Consulting. A publishing veteran with more than 20 years of experience in trade, academic, and direct-response publishing, she has spent the last 18 years specializing in licensing, subsidiary rights, and permissions. MJ is a polished presenter on copyright, and she firmly believes that everyone from authors to publishers to corporations should know their rights when it comes to intellectual property. To that end, MJ served as adjunct professor in the George Washington University’s Masters in Publishing program for 11 years, instructing a course titled Editorial Content, Rights, and Permissions. She has also presented sessions on rights at the Independent Book Publishers Association annual conference and is a member of IBPA as well as other publishing organizations such as the American Society of Picture Professionals, the Society of Children’s Books Writers and Illustrators, and Washington Publishers.