Authors’ & Other Creators’ Rights OSCP Lunch & Learn Talk #18 28 January 2015 Prepared by John Barnett CC BY 4.0

Learning objectives  Gain an understanding of the similarities and differences between authors’ rights and the rights of copyright owners  Ponder the many potential creators for music, performance, motion pictures, and art  Learn about economic rights and moral rights as part of creators’ rights  Be able to identify some areas of concern in publishers’ agreements related to authors’ rights

Copyright: The basics  A form of intellectual property law, grounded in the U.S. Constitution  Right of authors* to control use of their works for a limited time  Also established to promote creativity and learning  Covers both published and unpublished works  Covers original works of authorship fixed in a tangible medium of expression  Copyright notice is no longer required—but it may be wise to affix one  Copyright registration is no longer required—but it can be helpful  *Assuming that the author is the one who owns the copyright

Just do it! What’s protected— and what’s not?  Protected—  Original works of authorship including  Literary, dramatic, musical, and artistic works  e.g., poetry, novels, movies, songs, computer software, architecture  Not protected—  Facts, ideas, systems, methods of operation (although it may protect the way these are expressed)  Names, titles, slogans, or short phrases (although these may be protected as trademarks)  Kinda, sorta—  Logos—may be protected by copyright if the logo artwork contains sufficient authorship  Or an artistic logo may also be protected as a trademark

You have the right to...  Reproduce the work in copies and “phonorecords”  Prepare derivative works based upon the original  Distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending  Perform the work publicly (literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works  Display the work publicly (literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works [including individual images of a motion picture or other audiovisual work]  Perform the work publicly (in the case of sound recordings) by means of “a digital audio transmission”

Authors’ rights vs. copyright  Authors’ rights belong to the author/creator of a work  Authors can transfer, sell, rent, lease, etc., some or all of those rights to others  When the rights are transferred, sold, or signed away, the authors’ rights generally* come to an end  The recipient of these rights becomes the copyright holder/owner * Don’t forget about moral rights for creators!

Other concepts  Exclusive vs. non-exclusive rights  Deposits to  “In self-archiving this Work, I grant the University and its agents the non-exclusive and perpetual license to...”  Pitt students who complete ETDs grant a non-exclusive license to the university to distribute their ETDs  “I hereby grant to the University... And its agents the non-exclusive royalty-free license to archive and make accessible...”  Subsidiary rights  Examples: Translations, foreign markets, permissions, formats, etc.  Economic vs. moral rights

Why do author/creator rights matter?  Attribution  Be acknowledged for the work you do  Be rewarded for it  Copy  An author may want to make copies of his/her “own” work  But if rights are transferred to another entity, now the new copyright owner has that right  Remix (make derivatives)  Make versions or new editions of the author’s work  Reuse (grant permissions)  Authors can give permission on how they want their works to be used or distributed  If those rights are assigned to a publisher, the publisher then determines use and distribution

Musical compositions  Musical compositions = Music and accompanying words  Includes both original compositions and original arrangements  Includes other new versions of earlier compositions to which new copyrightable authorship has been added  Forms (physical items)  Sheet music  CDs, LPs, cassettes  Author  The composer  The lyricist (if there is one)

Sound recordings  Sound recordings = Works that result from the fixation of a series of musical, spoken, or other sounds  Examples: Recordings of music, drama, or lectures  Author  The performer(s) whose performance is captured  The producer who processes the sounds and fixes them in the final recording  Or both

Motion pictures  Audiovisual works consisting of a series of related images that, when shown in succession, impart an impression of motion, together with accompanying sounds  Film, videotape, videodisk  Only the expression (camera work, dialogue, sounds) is protected under copyright  Not protected—Ideas, concepts, or even characters portrayed  Authors  Director  Scriptwriter  Cinematographer  Sound engineer  Others!

Multimedia works  Combines authorship in two or more media  May include text, photography, artwork, sounds, sculpture, music, cinematography, choreography  May included printed matter, audiovisual materials, phonorecords, machine-readable copy (disc, diskette, tape, chip)

Visual arts  Includes 2- and 3-D works of fine, graphic, and applied art  Advertisements, artificial flowers and plants, bumper stickers, cartoons, dolls, fabric designs, games, greeting cards, holograms, jewelry designs, maps, models, mosaics, needlework, paintings, photographs, sculptures, silk-screen prints, stained glass designs, technical and mechanical drawings, weaving designs...

Not protected  Familiar symbols or designs  Mere variations of typographic ornamentation, lettering, or coloring  It’s complicated: Useful articles/ utilitarian items

So many economic rights Such limited moral rights  Significant in other countries (e.g., France, Germany, Canada)  Included in the Berne Convention for the Protection of Literary and Artistic Works  Right of attribution  Right to have a work published anonymously or pseudonymously  Right to the integrity of the work  Bars the work from alteration, distortion, or mutilation  Applies even after the work leaves the artist’s possession or ownership  Applies even if an artist has assigned copyright to a 3 rd party

But in the U.S.?  Less emphasized—felt to be covered by existing legislation  e.g., Adaptations: Derivatives works section of copyright law  e.g., Attribution: Lanham Act governing false and misleading advertising  U.S. recognized some moral rights in signing the Berne Convention, 1989  Visual Artists Rights Act (VARA) of 1990  Applies only to a narrow class of works  Art, sculpture, and other works of visual art that are produced in 200 copies or fewer  States that an artist’s name must be kept on the work  Or allows the artist to have the name removed if the work has been altered in a way objectionable to the artist  Provides limited abilities to prevent works from being defaced or destroyed  Some states also have moral rights laws for visual art and artists

And now for something completely different...  In 1976, Terry Gilliam/Monty Python claimed ABC violated copyright and caused damage to their artistic reputation by broadcasting drastically edited versions of their shows  U.S. district and appeals courts found in favor of the troupe  Case was primarily decided on the basis of whether the BBC had the right to let ABC edit the shows

Loosey goosey  Artist Michael Snow created a sculpture of Canada geese for the Toronto Eaton Centre shopping mall  The Eaton Centre wanted to decorate the geese with Christmas bows  Snow successfully stopped the shopping center from decorating the geese

To the left, to the left: Different approaches to authors’ and creators’ rights  Copyleft  Licenses works to be freely copied, distributed, and modified  Share alike  Patentleft or Open Patent Movement  Licenses patents for royalty-free use  Share alike

Creative Commons  7 licenses  No registration required  Standardized way to give public permission to share and use your creative work  Not an alternative but a companion to copyright

Public domain  Intellectual property rights have expired, been forfeited, or are inapplicable  Or no rights or license are claimed, including the right to attribution  But what about licensed images, new recordings, new editions, new translations... ?

Software  European Union Public Licence  GNU General Public License—free software  Open Source Initiative (OSI)— open source software  HESSLA (Hacktivisimo Enhanced- Source Software License Agreement)—ethical restrictions on the use and modification of software

Still more options  Against DRM License  Design Science License  Free Art License  MirOS Licence  Open Audio License

Analyzing a publisher’s agreement  Different agreements  Books  Scholarly journals  Proceedings  Agreements for authors  Agreements for editors  Special concerns  All rights reserved or some?  Exclusive or non-exclusive?  Subsidiary rights?  Option clauses?  Warranty clauses?  Indemnity clauses?

Give it away, give it away, give it away, yeah...  The Author hereby grants and assigns to the Publisher for the legal term of copyright (including any renewals, extensions, reversions and continuations thereof) all rights and interests in the Work and any new or revised, adapted or abridged editions thereof, including without limitation the exclusive rights, by itself and/or with others, to print, publish, republish, transmit, display, sell and distribute the Work and to prepare, publish and distribute derivative works based thereon, in all languages throughout the world, in any form or media of expression whatsoever now known or hereafter developed or invented (including without limitation any form of electronic publication distribution or transmission that the Publisher may wish);  And to license such rights to others as set forth in Schedule II Paragraphs A3 [E-Books] and B [Subsidiary Rights] on such terms as the Publisher may determine.

In case you weren’t sure...  The copyright in the Work will belong to the Publisher.  The Publisher will cause the copyright notice authorized by U.S. copyright law to be imprinted in each copy of the Work issued by it.  The grant in Paragraph 1.1 above includes a grant to the Publisher of the right to secure registration of copyright in the Work in the Publisher’s name or any other name the Publisher elects in such countries as the Publisher may deem expedient; the Author agrees to take all steps necessary to effect such registration or any renewal thereof.  The Author agrees to execute and deliver to the Publisher any and all documents in proper or customary form necessary or helpful to record in the United States or other copyright office the Publisher’s ownership of the copyright in the Work.

Permit me to pay you for the work I do  If releases or permission are required for any material contained in the Work (including without limitation textual extracts or illustrations, photographs, maps, diagrams, tables, artwork and/or software), then the Author will obtain satisfactory permissions or releases as needed to reproduce the same in the Work as directed by the Publisher.  The Author will forward the originals of the permissions to the Publisher as soon as possible after signing this Agreement and in any event no later than the date agreed with the Publisher for delivery of materials.  The costs of permissions will be paid by the Author.

Permit me to permit you to pay someone else  If the Author fails to clear and/or pay for permissions as stated above, the Publisher has the right to obtain or engage another person or entity to obtain the necessary clearances and/or make the necessary payments to third parties.  Any costs incurred by the Publisher in obtaining such clearances will be charged against any amounts due to the Author from the Publisher, unless such amount is insufficient to cover the permission fees, in which case the Author will repay the amounts so paid by the Publisher within thirty (30) days of receipt from Publisher of an invoice therefor.

Competing works  During the continuance of this Agreement, the Author will not write, edit, print or publish or cause to be written, edited, printed or published any work that may reasonably be regarded by the Publisher as likely to compete with or prejudicially affect the sale of the Work or the exploitation of any rights in the Work granted to the Publisher under this Agreement.

New editions  The Author will, if called upon to do so by the Publisher and without additional charge to the Publisher, prepare new editions of the Work as may be needed to keep the Work up to date on a schedule the Publisher reasonably requests.

First refusal  The Publisher will have the first opportunity to read and consider for publication the Author's next work.  If the Publisher and Author are unable to agree to terms for its publication within a reasonable period, the Author may enter into an agreement with another publisher, provided that the Author will not subsequently accept from anyone else terms equivalent to or less favorable than those offered by the Publisher.

Beyond the grave  In addition to the rights granted to the Publisher pursuant to Paragraph 4.2 above, if the Author be prevented by disability or death from completing the Work, the Publisher may, at its option, either:  (i) purchase from the Author's executors administrators or assigns (as the case may be) such writings the Author has done in respect of the Work and a grant and assignment of the copyright therein at a price to be agreed in lieu of any monies that would otherwise be owing pursuant to this Agreement if the Author had completed the Work, and entrust the completion of the Work to another party; or  (ii) terminate the Agreement by notice in writing, without liability for any payment to the Author's executors administrators or assigns.

Warranty clauses  The Author represents and warrants to the Publisher and its assignees and licensees that:  The Author owns and has the right to convey all of the rights conveyed herein to the Publisher and has the unencumbered right to enter into this Agreement;  The Author is the sole author of the Work (or of the Author's contribution to the Work, as the case may be);  The Work or the Author's contribution to the Work is original and has not previously been published in any form (except for material of others included in the manuscript with the Publisher’s written consent and the written permission of the copyright proprietor or written confirmation of the Publisher’s determination that permission is not needed);  The Work is in no way whatsoever a violation or infringement of any existing copyright or license or duty of confidence or duty to respect privacy or any other right of any person or party;  Neither the Work nor any material portion thereof is, or will be during the statutory term(s) of copyright, in the public domain;  The Work contains nothing that violates any right of privacy, is defamatory or otherwise violates any other right of any kind of any person or entity, nor does the Work contain anything that is obscene or in any other way unlawful or misleading;  T he Author has not misrepresented to the Publisher the Author’s academic or other credentials;  And all statements in the Work purporting to be facts are true and any recipe, formula, diagram, table, recommended treatment, dosage or instruction contained therein, whether textual or illustrative, and whether intended to be informative or instructional, is based on the best information currently available.

Indemnification clauses  The Author agrees to indemnify and hold harmless the Publisher, its affiliates, assignees, and licensees and its and their respective directors, officers, members, managers, employees, agents, distributors and customers (each, an “Indemnitee”) against any damage, loss, liability, injury, or cost or expense (including without limitation reasonable attorneys’ fees and costs), settlement or judgment arising out of any claim (a “claim”) by third parties that any of the above representations or warranties has been breached.  If a claim is brought against an Indemnitee, the Publisher will have the right to defend with counsel of its own choice.  The Author agrees to cooperate in the defense and will have the right to participate in the defense at the Author’s own expense.  The Publisher may withhold payments due or to become due to the Author under this Agreement pending the final resolution of the claim and/or apply any such payments to the reduction of the obligations of the Author to the Indemnitees described in this Paragraph 10.2.

Journal publisher agreements  May be less restrictive and all-encompassing  May be a non-exclusive agreement  Some journals may not restrict classroom photocopying, reprinting in anthologies or other scholarly works, or being able to license content to appear in article databases  Other licensing options  Creative Commons  Open Access

Proceedings publisher agreements  Editor may have a separate status as an author because of the collective nature of the work  Contributors of individual parts will have status as authors as well  Published as a journal issue  Editor needs to sign a journal publisher agreement  Individual authors of articles need to sign journal publisher agreements  Published as a book  Editor needs to sign a book publishing agreement  Individual authors of papers need to sign publisher agreements as well

What’s an author to do?  Be aware of key clauses  Understand what they mean  Ask for them to be changed or removed  Understand your rights and retain as many as you can  Use Creative Commons or other copyleft licenses to help you modify agreements

Questions?  Thank you!  Authors’ & Other Creators’ Rights  OSCP Lunch & Learn Talk #18, 28 January 2014  Prepared by John Barnett, Scholarly Communications Librarian  Office of Scholarly Communication and Publishing  University Library System, University of Pittsburgh  CC BY 4.0

Sources  American Psychological Association. (2010). Protecting intellectual property rights. In Publication manual of the American Psychological Association (6 th ed., pp ). Washington, DC: Author.  Crews, K. (2006). Copyright law for librarians and educators: Creative strategies and practical solutions (2 nd ed.). Chicago: American Library Association.  Strong, W. (2010). Rights, permissions, and copyright administration. In The Chicago manual of style (16 th ed., pp ). Chicago and London: University of Chicago Press.  U.S. Copyright Office. (2012). Copyright basics (Circular 1). Washington, DC: Author. Retrieved from

Sources, continued  U.S. Copyright Office. (2013). Copyright notice (Circular 3). Washington, DC: Author. Retrieved from  U.S. Copyright Office. (2013). Copyright registration for multimedia works (Circular 55). Washington, DC: Author. Retrieved from  U.S. Copyright Office. (2012). Copyright registration for musical compositions (Circular 50). Washington, DC: (Author). Retrieved from  U.S. Copyright Office. (2014). Copyright registration for sound recordings (Circular 56). Washington, DC: Author. Retrieved from