Open@VT

Shepard Fairey, Barack Obama “Hope” poster, 2008

Why Copyright? Why Visual Art?

Copyright exists to allow creative ideas to flourish. It promotes making and the dissemination of ideas by providing creators with protections against the misuse of their work. However, many people abandon projects due to copyright concerns. That is why the doctrine of fair use is so important, especially in the visual arts. Fair use allows the use of copyrighted materials without the permission of the copyright holder, and therefore gives more freedom for artists to express their ideas.

Art responds to ideas about our culture and society. For this reason, many works of art are inspired by the work of other artists. There is even a field of art dedicated to using pre-existing objects or images referred to as appropriation art. Appropriation art has been extensively used since the 1980s and raises questions about originality, authenticity, and authorship (Tate, “Appropriation.” Date accessed February 13, 2020. https://www.tate.org.uk/art/art-terms/a/appropriation). Fair use can be understood through the context of appropriation art. Whether art is considered fair use or not is determined by four factors.

Four Factors of Fair Use

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
2. The nature of the copyrighted work. For example, a court will consider whether the work being copied is informational or entertaining in nature. Fair use is more likely to be determined if the material is copied from factual work.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
4. The effect of the use upon the potential market for, or value of, the copyrighted work.

There is no clear formula of how the four factors should be considered in determining fair use. Grey area deliberately exists to assess each scenario on a case-by-case basis. See how this plays out in the two examples below.

Examples

David Smith, Cubi XXVII, stainless steel, 1965. 111-⅜ x 87-¾ x 34 in.

Lauren Clay, Cloud on My Single-Mindedness (Cubi XXVII), acrylic and paper, 2012. 30 x 24 x 12 in.

In 2012, artist Lauren Clay created a small piece, Cloud on My Single-Mindedness, using soft materials. This piece was a response to original work by artist David Smith that was 8’ by 10’ and made from stainless steel. Clay’s work is an interesting commentary on the abstract expressionist art of Smith. Although the two pieces are visually similar it was ultimately settled outside of court that Clay’s piece met the standards of fair use because the small size, soft materials, and colored surfaces were a feminist response to Smith’s large-scale, stainless steel piece.

Left: Patrick Cariou, Yes Rasta, 2000; Right: Richard Prince, Canal Zone, 2008.

In 2000, photographer Patrick Cariou published a book on Rastafarian culture in Jamaica. Appropriation artist Richard Prince used photos from the book without attributing work to the original artist. Prince’s work garnered over ten million dollars in profit. This case raises questions about the extent to which Prince transformed, or did not transform the piece, what his ultimate objectives were, and whether his work diminished the market value for Cariou’s work. Ultimately, an appeals court decided that Prince’s work was transformative enough to a reasonable observer.

The last example, especially, illustrates the difficulty of assessing fair use. When writing about, teaching about, or making art remember that fair use is generally favored under these conditions: 1. using material for educational purposes or personal study; 2. transforming the original work in a way that it adds meaning; 3. using only small portion of the original work; 4. being able to articulate the use of copyrighted material by the objective of the new piece; and 5. citing the source of the original work.

[Content for this post was inspired by Fair Use in the Visual Arts: Lesson Plans for Librarians, an open-access e-book produced by the Art Libraries Society of North America. To learn more about fair use in the visual arts consult the Code of Best Practices in Fair Use for the Visual Arts by the College Art Association.]

Understanding and Negotiating Book Publication Contracts, prepared by Brianna L. Schofield, Robert Kirk Walker, Katherine Bridge, Alfredo Diaz, Karen Graefin vom Hagen, Anna Kuksenkova, Henry Nikogosyan (Berkeley: Authors Alliance, 2018).

The latest and largest of the series of guides from the Authors Alliance covers publication contracts for all types of books (previous guides on open access, rights reversion, and fair use were covered on this blog).  The guide covers contracts from both trade and academic publishers so some aspects of the discussion will be more relevant for trade books rather than academic books.  (Also worth noting is that neither the book nor this blog post constitute legal advice, and in the interest of full disclosure, I was one of the Kickstarter backers for this book.)

The guide is the product of interviews with many authors, publishers, agents, and copyright experts, as well as more than fifty survey responses from authors.  Some of those responses are captured in text boxes for “success stories” and “cautionary tales”; in addition, fictional “literary lessons” are also set apart from the main text.  A book publication contract “outlines what rights you as an author are granting to your publisher and on what terms” (p.4): it is certainly not something to accept as easily as software terms of use.  Indeed, the authors insist that signing a contract without negotiating is a mistake.  A book publication contract must be in writing and signed, and it is especially important to save copies of it for future reference.

Prior to negotiation, authors should determine their goals for the published book.  Is it important to retain copyright, or to be able to re-use the content in certain ways, or to keep the price low, or to have final say on design choices like cover art?   The guide recommends that authors “devote extra attention to clauses in their contracts that affect the long-term availability of their books” (p. 14).  The guide explains what “in print” and “out of print” mean in the era of print-on-demand and digital publishing, and recommends a threshold of yearly sales to be called “in print.”  If a book does not meet that threshold, an author may be able to regain rights to the book.   At a minimum, don’t assign rights to the publisher that the publisher can’t use.

Copyright is a bundle of rights: “the exclusive right  to reproduce, distribute, make derivative works, publicly perform, and publicly display the work.” (p. 51).  The grant of rights from an author to a publisher can come in three forms: assignment (copyright transfer), an exclusive license, or a non-exclusive license, but most contracts will involve either assignment or an exclusive license.  Regardless of which form the grant of rights takes, the scope of those rights can be limited, for example, by language, geography, format, and/or duration.  Duration may particularly be worth considering, since the current term of copyright is life of the author plus 70 years.   If a publisher goes out of business, for example, it may be difficult if not impossible to recover rights for the book.  In an interesting “success story” on limiting duration of rights, an author granted exclusive rights to a publisher for five years, after which rights were non-exclusive.  This allowed the author to post an openly-licensed version online, while enabling the publisher to recoup costs during five years of book sales (though there is some evidence that the online availability of books can help print sales).  If a publisher won’t  accept a limitation on the duration of rights, an author can ensure that there is a rights reversion clause or a “license-back” in which certain specific, limited rights are returned.  It’s also possible to include a “revert-back” clause, sometimes known as “use it or lose it” clause, in which rights that are unused by the publisher in a certain period of time revert back to the author.  Another way for authors to hold on to rights is to include a sentence specifying that any rights not granted in the contract belong to the author.  Subsidiary rights, which are specific rights that the publisher can license to a third party (such as translation or movie rights), can be an important revenue generator, and are usually shared with the author.  If a publisher is unwilling to change the subsidiary rights language, an author can stipulate a right to approve these licenses, or at least be consulted.

A section of the guide covers an author’s obligations, such as those relating to the manuscript’s length, delivery date, and procedures for copyediting, proofreading, and indexing.  Contracts typically require permission to use third-party material included in the manuscript (which is also common in the copyright transfer agreements for peer-reviewed journal articles).  While this generally applies to only those materials that require permission, an author might ensure that the requirement does not cover all third-party material, which overlooks fair use of copyrighted works, as well as materials that are openly licensed or in the public domain.  For the book’s copyright, the contract should specify which party will register the copyright and when.  Although copyright is automatic under U.S. law, registration within three months of publication will protect against infringement and allow for statutory damages.

What about the money?  Academic authors shouldn’t expect much here.  Advances, however, are common in trade publishing, and are credited against income from book sales.  Royalties are usually expressed as a percentage of the publication price, net income, or net profit– it’s important to understand each calculation (there’s a chart on p. 204).  Both trade and academic book contracts may include an escalation, or an increase in the royalty percentage once a sales threshold is reached, and most contracts provide for regular accounting statements to be sent to the author, and should be insisted upon even if you don’t expect significant sales.

Understanding and Negotiating Book Publication Contracts, like the other Authors Alliance guides, is a clear, easy-to-read guide focused on an author’s control of their works, particularly the ability to make the work available in whatever form the author wishes.  The guide is a valuable resource for all authors, and is an open access book (licensed CC BY) available online in PDF.   Those readers who prefer print can order a copy ($30) from the Authors Alliance, or check it out from Newman Library.  For more information, see the Authors Alliance’s Publication Contracts resource page, which includes a link to author success stories in negotiating book contracts.  Also of possible interest is the Model Publishing Contract for Digital Publishing, a Mellon-funded project of Emory University and the University of Michigan.

(Thanks to Peter Potter, director of Virginia Tech Publishing, for reviewing a draft of this blog post.)

Brianna L. Schofield and Robert Kirk Walker. Fair Use for Nonfiction Authors: Common Scenarios with Guidance from Community Practice (Berkeley: Authors Alliance, 2017).

Fair Use for Nonfiction Authors is the third in a series of short, helpful guides from the Authors Alliance (the first two were Understanding Open Access and Understanding Rights Reversion).  The guide was created “to help nonfiction authors understand reasonable strategies for the application of fair use in common situations.”  With the help of several scholarly societies, the authors distributed a survey which garnered the responses of 60 authors with nearly 150 fair use stories.  In addition to the survey responses, the guide was also shaped by existing codes of best practice in various domains.  Keep in mind that the concept of fair use is evolving, and that there are no clear tests of what is or is not fair use.  Also, the guide applies only to fair use in the United States (and neither the book nor this blog post constitute legal advice).

Four factors must be considered to determine whether using a copyrighted work is a fair use: the nature of the use, the nature of the work used, how much of the work is used, and the economic effect of the use.  Case law shows that judges tend to focus on two questions: whether the use was transformative, that is, was the use for a different purpose or did it give the material a different meaning; and was the material used appropriate in kind and amount?

The guide then goes on to cover three common situations encountered by nonfiction authors.  The first is criticizing, discussing, or commenting on copyrighted material.  This use is well established, but does have the following limitations: the amount used should be appropriate for the purpose; the use should be connected to the purpose; and reasonable attribution should be given to the author.  While U.S. copyright law does not require attribution, courts may find it a factor in favor of fair use, and of course it is standard practice in scholarship.

The second common situation is using a copyrighted work to illustrate, support, or prove an argument or point (unlike the situation above, here the copyrighted work is not the object of commentary).  This use is also well established, and shares the limitations above regarding attribution, the amount used, and a connection between the work and the point being made.  An additional limitation in this situation is that a use should not be made if it is merely decorative or entertaining.

The third common situation is using copyrighted works for non-consumptive research, such as text and data mining. For this more recent situation, fair use is strongly supported by existing case law. One caveat, however, is that databases being used in this manner must not have any contractual restrictions on text and data mining. And the material should not be employed in other ways, such as reading normally, or providing access to works digitized by the researcher. Real-life examples of fair use appear for all three situations described above, as well as hypothetical cases to test your knowledge.

The FAQ section of the guide covers creative and commercial uses, options when permission is refused, fair use for unpublished works, and contractual limitations on fair use.  Two questions of particular interest to researchers concern the re-use of figures, and the policies of journals and publishers that require permission for re-use of copyrighted work.  In the case of figures, including charts, graphs, and tables, it is important to remember that facts are not copyrightable.  Creatively expressed figures may be copyrightable; one must analyze each particular case according to the scenarios above.  It is worth mentioning here that some forward-thinking researchers are eliminating the permissions ambiguity regarding their own figures by making them available separately under a Creative Commons license.  Where publishers ignore fair use and require permissions to re-use copyrighted work, the guide recommends engaging with them to explain the rationale and referring them to a code of best practices where applicable.  Where fair use is integral to a work, it will be worth finding a publisher willing to rely on it.

The section “Beyond Fair Use” provides the following suggestions if your intended use does not qualify as fair use:

• Modify your intended use
• Ask the owner for permission (which may include paying a license fee)
• Use an openly licensed work
• Use a work in the public domain

Fair Use for Nonfiction Authors is an open access book (licensed CC BY) available online in PDF. If you would prefer a print copy, you can order one ($20) from the Authors Alliance, or check out the copy in Newman Library.  For more information, see the Authors Alliance fair use page, which in addition to the guide includes a FAQ, links to fair use resources, and fair use news.

Through June 15, the Authors Alliance has a crowdfunding campaign for an upcoming guide, Understanding Book Publication Contracts.  If you would like help support that guide, please consider a contribution.

Art from Frankfurt Bookfair, 2010 (CC0 1.0)

Lulu has announced the launch of a new online publishing platform that it is calling Glasstree. If you’ve heard of Lulu before you probably know it as one of several heavyweight players in the self-publishing arena, alongside Amazon (Kindle Direct), Apple (iBooks Author), and iUniverse. What makes the Glasstree announcement intriguing is that Lulu is explicitly setting its sights on “academic and scholarly authors and communities.” In other words, Lulu wants to be a scholarly book publisher.

What are the chances that Lulu’s experiment will succeed? At first glance, it sure seems unlikely. As popular as self-publishing has become (DIY titles account for over 40% of all trade eBook sales), any impact it has had on the academy has thus far been modest. After all, one of the bedrock principles of scholarly publishing is gatekeeping (i.e. letting in the good; keeping out the bad), a principle that seems fundamentally at odds with the self-publishing tenets of fast, easy, and low-cost. Indeed, DIY publishing companies pride themselves on minimizing the barriers to publication—surely a sign that Lulu faces an uphill battle. And yet, a closer look at the Glasstree website suggests that Lulu has a strategy that is at least worth watching.

To its credit, Lulu doesn’t hide its intentions. Visitors to the Glasstree home page are immediately greeted with a barrage of not-so-subtle one-liners aimed squarely at appealing to scholarly authors:

PUBLISH AND PROSPER

Glasstree Returns Control to Academic Authors

Experience Scholarly Publishing in a Whole New Way

A Better Publication Model for Academic Authors

What author doesn’t want more control over the publishing process or, for that matter, a chance to publish and prosper? You’ve certainly got my attention. Then comes the real sales pitch:

The existing academic publishing model is broken, with traditional commercial publishers charging excessive prices for books or ridiculous book publishing charges to publish Open Access books.

The give-away here is the mention of “traditional commercial publishers,” an obvious reference to the handful of conglomerate publishers that now control a sizable share of the academic monograph market—publishers including Elsevier, Springer, Wiley, and Taylor & Francis, which together churn out thousands of monographs each year at list prices that routinely exceed $100 per volume. Indeed, as one reads on it becomes clear that Lulu is appealing not so much to scholars working on their first (i.e. tenure) book but to experienced scholars; specifically, experienced scholars who have published previously with a commercial academic press and who feel burned by the experience. The following paragraphs reel off a familiar litany of complaints that one might hear outside the book exhibit hall of pretty much any scholarly conference:

Academics or their supporting institutions are poorly paid for their content. Profit margins are strongly skewed towards the publisher, with crumbs for the author and/or their employers. Submission to publication times are far too lengthy and service and marketing support insufficient.

Besides the lack of editorial assistance, marketing support, and a complete absence of urgency, traditional academic publishers are now often viewed as cherishing profits over the advancement of knowledge, and accommodate their shareholders over their authors.

Some of these complaints surely could be leveled against university presses, but the real target here is obviously commercial publishers, viz. the presses that cherish profits over advancement of knowledge while accommodating the interests of shareholders over authors. Indeed, it is this resentment-stoking aspect of Glasstree’s appeal that surely has a chance of resonating with a specific subset of authors—those both inside and outside the academy who are not subject to the pressures of tenure and promotion and therefore can afford to publish their books wherever they want. While it is hard to imagine most research universities taking a Glasstree book seriously for tenure, I can certainly see established scholars, particularly productive ones who are no longer in need of a monograph for promotion, using a service like Glasstree to publish “labor of love” books or books that grow out of side projects that wouldn’t count anyway toward career advancement—or simply books that no university press will take on. In short, Glasstree could be an attractive outlet for any number of books that typically would go to commercial academic publishers more so than university presses.

Of course, some will argue that commercial academic publishers, despite their faults, still employ peer review. It may not be as rigorous or as consistent as the peer review done by university presses, but it is certainly more than what one gets from a self-publishing company. But this is where Lulu’s plans for Glasstree really get interesting. According to the Glasstree website, Lulu is also launching Glassleaf Academic Services, which offers “peer review, all forms of editing, illustration and design, translation and professional marketing services. These services are designed for the academic community and are offered at affordable prices.” Lulu does this by offering tiered service packages (1-Star, 2-Star, & 3 Star) that start “as low as $2,625” and can go up over $8,000. Books can then be published in a variety of formats—both softcover and hardcover as well as eBooks, including Open Access eBooks.

It is unclear who will be doing all of this work but it seems that Lulu actually plans to hire living and breathing people—Content Project Managers—to at least oversee some form of peer review, copyediting, design, and marketing, even if they have some way of automating the work to exploit economies of scale. Here’s what the website specifically says about peer review:

Peer Review: Strengthening Your Content
This service is designed to save you time and effort in gathering peer reviews of your work. A Glassleaf Content Project Manager will manage the entire peer review process and consolidate feedback for you. Your Content Project Manager will compose a questionnaire and share it with you for review prior to distributing it with your content. The number of reviewers will vary according to discipline and your preference.

After the review process is complete, your Content Project Manager will provide you with the actual peer reviews and, in a summary report, will highlight significant and consistent commentary from your peers’ comments. After the report is compiled, you will meet with your Content Project Manager to review the summary of the reviewer’s commentary.

It is also worth noting that Glassleaf plans to offer 3 types of peer review: open, single blind, and double blind. Authors will be responsible for paying reviewer fees although the Content Production Manager will “negotiate the lowest possible fees on the author’s behalf.”

Caxton Showing the First Specimen of His Printing to King Edward IV at the Almonry, Westminster (Source: Cassell’s History of England, Vol. 2, 1909)

Once again, I want to reiterate my overall skepticism that this type of DIY publishing will have a serious impact, at least for now, on scholarly monograph publishing as it interlocks with the current T&P system. In this, university presses still have a unique role to play. Still, one can’t help but wonder if Lulu isn’t onto something. Might they have found a sweet spot between the two endpoints of the scholarly publishing spectrum, non-profit university presses on the one end and commercial publishers on the other? The missing piece for self-publishing companies like Lulu has always been quality control, but as the quality of commercially published books continues to fall and price tags continue to rise, the Glasstree model has some definite advantages. Even the pay-for-services aspect doesn’t seem so foreign now that various proposals are being considered for subvention-funded (i.e. pay-to-publish) OA monographs. Perhaps the emergence of companies like Glasstree will force us, at last, to get a grip on what it costs to produce scholarly books and, more importantly, find ways to actually drive down those costs.

No matter how you look at it, the once-staid world of scholarly publishing is getting messier and messier. And it’s only going to get more so. According to the Glasstree website, Lulu has its sights set on more than just books:

Glasstree, in its initial phase, will publish books—monographs, thesis, series, serials, textbooks, etc. (both soft and hardcover, with a range of paper types, binding types, etc.), and eBooks (including Open Access eBooks). Future phases will focus on article based publishing, journals, conference proceedings, data sets, etc.

We all need to brace ourselves for what lies ahead.

Nicole Cabrera, Jordyn Ostroff, Brianna Schofield, and the Samuelson Law, Technology and Public Policy Clinic. Understanding Rights Reversion: When, Why & How to Regain Copyright and Make Your Book More Available (Berkeley: Authors Alliance, 2015).

Although I am familiar with copyright and licensing agreements for journal articles, I am less familiar with book publishing agreements. Rights reversion for books was a new concept to me, so the first guide published by the Authors Alliance had my attention right away (the group has since published a second guide, Understanding Open Access). This guide is intended for authors who, for whatever reason, may wish to reclaim rights to their books– rights that they transferred to their publishers when they signed a publishing agreement. It’s the result of “extensive interviews with authors, publishers, and literary agents who shared their perspectives on reverting rights, the author-publisher relationship, and keeping books available in today’s publishing environment.” The guide follows an “if-then” organization, referring readers to specific chapters depending on their situation, though I read it straight through (full disclosure: I’m an Authors Alliance supporter).

Early on, the authors define rights reversion and its availability:

“a right of reversion is a contractual provision that permits an author to regain some or all of the rights in her book from her publisher when the conditions specified in the provision are met… in practice, an author may be able to obtain a reversion of rights even if she has not met the conditions stipulated in her contract or does not have a reversion clause.” (p. 6-7)

This guide is intended for authors with publishing agreements already in place; it is not a guide to negotiating contracts (though it may inspire authors to examine the details of rights reversion clauses in new contracts).

The authors note that rights reversion becomes an issue for academic authors especially when their books fall out of print, sales drop, or their publishers stop marketing their books. In such instances, authors may wish to reclaim their rights (so that they can find another publisher to reissue the book or perhaps deposit the book in an open access online repository) but they find themselves constrained by the terms of their publishing agreements or they may not understand how how to go about reclaiming their rights. With these concerns in mind, the Authors Alliance “created this guide to help authors regain rights from their publishers or otherwise get the permission they need to make their books available in the ways they want.”

An important first step in the process is for authors to learn about different ways that they might increase their books’ availability (for example, electronic, audio, and braille versions as well as translations). Next, the guide helps authors determine if they have transferred to their publishers the rights necessary to make their books available in the ways they want. Older contracts may be ambiguous regarding e-book versions; the guide advises authors on how to negotiate the ambiguity. An additional consideration is that permissions for usage of third-party content may no longer be in effect.

Some examples of reversion clauses are provided in chapter 4, pointing out triggering conditions (such as out of print, sales below a certain threshold, or a term of years), written notice requirements, and timelines. It’s important to understand how the triggering conditions are defined, as well as how to determine whether they have been met, and the authors provide good suggestions for finding this information.

The publisher’s plans for the book should be discovered, and the guide emphasizes reasonable, professional conversations with publishers. The success stories throughout the book are particularly valuable in this respect.

Chapter 6 details how to proceed if a book contract does not include a rights reversion clause:

“Ultimately, whether a publisher decides to revert rights typically depends on the book’s age, sales, revenue, and market size, as well as the publisher’s relationship with the author and the manner in which the author presents his request.” (p. 77)

Before requesting reversion, an author should have a plan in place, review all royalty statements, and discover the publisher’s plans for the book. Being reasonable, flexible, creative, and persistent are the golden rules for negotations with a publisher. Precedents can be persuasive, so inquire with friends and colleagues who are authors. If electronic access is important, be aware that many publishers are actively digitizing their backfiles. In this respect, an author might draw a publisher’s attention to the increasing evidence that open access versions don’t harm sales, and can sometimes increase them as a result of improved discovery.

Understanding Rights Reversion is itself an open access book (licensed CC BY) available online in PDF. If you would prefer a print copy, it’s available in Newman Library, or you can order one ($20) from the Authors Alliance. For more information, see the Authors Alliance rights reversion portal, which includes rights reversion case studies that occurred after the publication of this guide. The Guide to Crafting a Reversion Letter, a companion to the guide containing sample language and templates, has just been released.

Thanks to Peter Potter, Director of Publishing Strategy at the University Libraries, for his feedback on this blog post (contact him if you have questions about book publishing- he has a wealth of experience). Thanks also to the Open Library for the cover image.