Friday, March 10, 2006

Friday 20

Before we get into the Friday 20, I've got a question for you: what happens to copyrighted work if someone who wants to use it can't locate the copyright owner to obtain permission for that use?

If this legislation is pushed through, it can be freely used, and the person using it will also enjoy preferential protection against any legal action taken against them by the copyright owner.

What concerns me is the potential this legislation has to affect everyone whose work is protected by copyright law. As it stands right now, it's particularly worrisome for independent photographers and other visual image artists. To quote ASMP's general counsel Victor Perlman: "We are different from all other copyright owners because, unlike other creators, it is the exception rather than the rule that our images are published with any kind of credit line, copyright notice or other form of attribution."

Copyright opponents (aka the folks who want to give it all away for free) are hailing this legislation as a step forward rather than backward, but it helps support their position, so that's a given. As an author I depend on the integrity of copyright law, and I think this legislation is yet another badly-disguised effort to undermine it. I'm going to write to my senators and congressmen tonight and urge them to vote against it. I hope you'll give this some thought and do the same (and my thanks to Kristin for e-mailing me with a heads-up on this.)

Related links:

The full text of the Copyright Office proposal is in .pdf format here

The U.S. Copyright Office's Report on "Orphaned Works"

Recording artists from the Future of Music Coalition responded with a statement here.

The National Press Photographers Association weighs in with their objections.

To find out who your state representatives are, check out the search engines at the web sites for the U.S. House of Representatives and the U.S. Senate.

On to the Q&A -- what would you like to talk about this week?

36 comments:

  1. Forgive me if you've been asked this in the past and I haven't found it on this site, on average how many rewrites/revisions do you do on your books from first draft to submission to editor?

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  2. Bethany wrote: on average how many rewrites/revisions do you do on your books from first draft to submission to editor?

    Presently two: one time on the first draft material, and a second, more thoroughly edit on the entire manuscript once it's complete. I prefer to limit the amount of editing I do because backtracking and repetitive rewriting railroad my focus, and I tend to write better, cleaner first drafts if I know I'm only going to get two shots at revising it before it lands in the editor's hands.

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  3. I'm constantly surprised by the differences in legalities between our two countries.

    Here, any photograph that's published to more than three people (our definition of the requirements of copyright infringement) needs an attribute. Even as an Australian government magazine editor, I had to use an attribute. If it was a Government photograph, that is a photograph taken by someone in the employ of the government, an attribute saying as much had to be seen (eg, Department of 'blah' file photograph).

    In the private sector, names are given, though no copyright symbol is used.

    I would, most loudly, object to anyone, using my work without charge. Photographers deserve the protection of copyright as much as writers do and this trend towards 'free borders' takes away an individuals right to earn an income. (Can you tell it's a hot button with me?)

    Um... the question's gone right out of my head! Dammit! Distraction, thy name is PBW!

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  4. It's a stupid question, and I hate to use it, but I'm driving myself nuts playing the "what if" game, and I'm hoping asking will give at least one of the voices an edge:

    Do you honestly need to publish a stand-alone first, if you want any chance of sale/representation? Will they avoid all series from newcomers - even if the first book CAN stand on its own?

    I have another science fiction novel that isn't a series, but it's difficult to write (and will likely get me sentenced for treason), and I wanted to hold it until I was ready to do it justice. I really want my MindWalker series to go first, but now I'm having doubts I'll ever be able to do that. *~*

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  5. The reason behind the law is that many older works are still under copyright, but the author is dead and the heirs can't be located. These works aren't currently earning any money for anyone, and the costs of clearing permissions are a major barrier for people who might want to use the work in anthologies, histories, and similar projects.

    Obviously the devil is in the details, but the idea is, IMO, a good balance to the recent lengthy extensions of copyright.

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  6. Anonymous10:43 AM

    My question is one that has bothered me since I discovered your books. You use the same photograph of yourself in the back of all your books and only put up old pics on PBW. I haven't seen one photo of you in RT or Locus. My roommate actually met you at the ICFA conference and said that you're much prettier in person. Are you camera shy, or is do you have another motive for being so incognito?

    Lynda H. in San D.

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  7. Katherine said The reason behind the law is that many older works are still under copyright, but the author is dead and the heirs can't be located. These works aren't currently earning any money for anyone, and the costs of clearing permissions are a major barrier for people who might want to use the work in anthologies, histories, and similar projects.

    This may be where there is a benifit, however, I sense a LOT of people will be in the courtrooms saying, "I tried to reach Ms. Author and since I could not, I was entitled to use it." It may be down to proving that said defendant did not use all available means.

    Maybe that is a long stretch but I can see it happening.

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  8. My question: How much time do you spend on each stage of a book - planning, writing, and editing?

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  9. Anonymous11:47 AM

    The legislation is certainly a problem for photographers, though I wish they would propose requiring credit rather than continuing to cut off access to all orphaned works.

    When PBW says "[the work] can be freely used", note that if the copyright owner is found they do get paid fair value. The "preferential protection" PBW mentions is that the infringer-who-tried-in-good-faith-to-find-the-copyright-holder has some protection against paying huge damages.

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  10. I'm not sure if you know the answer to this, but if you don't maybe someone else will. What's the reasoning behind an author receiving an advance? Is it because there is such a long time between signing a contract and seeing a book hit the shelves? Does it go back to the early days of publishing when some writers were literally starving?

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  11. My question regards agent referrals. How can I approach published author for a referral without putting her in an awkward position? If it were me in this position, I'd want to read a sample of the requester's work and make sure that a) they're a decent writer and b) what they write is something my agent would be interested in. But I'd hate to ask a published author to spend her time vetting my work. I'm acquainted with several published authors, but none that I would consider good enough friends to ask a this sort of favor of. Any suggestions?

    Thanks for your guidance!

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  12. Anon said...
    The legislation is certainly a problem for photographers, though I wish they would propose requiring credit rather than continuing to cut off access to all orphaned works.

    I think one of the additional dangers is the use copyrighted works may be put to. As an off-the-cuff example, using a particular song to advertise a product, where the copyright holder may loathe said product. There's money and control at stake, and they're not always the same thing.

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  13. Jaye Patrick wrote: Um... the question's gone right out of my head! Dammit! Distraction, thy name is PBW!

    Now that's one I haven't been called since I was twenty or so, lol.

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  14. Andi wrote: Do you honestly need to publish a stand-alone first, if you want any chance of sale/representation? Will they avoid all series from newcomers - even if the first book CAN stand on its own?

    I know a lot of series writers worry about this, but a great novel will sell and get representation whether it's a standalone or first in a series. I've seen it happen too many times to doubt it. If you're concerned about how your proposal is perceived by the editor, pitch book one as a single title. Once you have an interested editor, then pitch the series.

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  15. Katherine wrote: Obviously the devil is in the details, but the idea is, IMO, a good balance to the recent lengthy extensions of copyright.

    Amen on the details. Good points, Katherine, thanks.

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  16. My Quirky Question of the Week is:

    Did you receive my emailed question about the quilt and is there an answer forthcoming?

    I got edits today, so I'm back to them! ;)

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  17. Lynda H. wrote: Are you camera shy, or is do you have another motive for being so incognito?

    If everyone know vat I look like, Boris and I vill nefer catch Moose and Squirrel.

    Honestly, I'm one of those people who don't photograph very well, so I dodge the camera. That one bio photo is probably it for me for life.

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  18. Pixel Faerie wrote: I sense a LOT of people will be in the courtrooms saying, "I tried to reach Ms. Author and since I could not, I was entitled to use it." It may be down to proving that said defendant did not use all available means.

    My stomach hurts just thinking about it.

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  19. You mentioned only 2 edit cycles. Can you list a few of the things you try to get right in the 1st draft, what you cover in that 1st edit, and what you leave for the final (and presumably big) edit cycle?

    I feel like I'm in editing hell sometimes. I've gone over my book 6 times (that I can remember!) by now. I have at least one more to go, now that it's been accepted for publication. But I'd like to pull together a better approach to editing for the next book.

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  20. Zoe wrote: My question: How much time do you spend on each stage of a book - planning, writing, and editing?

    Planning time is a little different with every book, but on average the rest takes about four to six weeks.

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  21. Anonymous wrote: The legislation is certainly a problem for photographers, though I wish they would propose requiring credit rather than continuing to cut off access to all orphaned works.

    I'd take that as a reasonable compromise, as long as they'd ditch the legal protection for copyright violators.

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  22. Darlene Ryan wrote: What's the reasoning behind an author receiving an advance? Is it because there is such a long time between signing a contract and seeing a book hit the shelves? Does it go back to the early days of publishing when some writers were literally starving?

    I can't speaking for the present reasoning behind advances, some of which are ridiculously inflated (see Alan Greenspan.) More often these days the average writer is paid an advance based on previous sales, so I think advances are slowly becoming more realistic. Advance terms are also changing -- one third of some of my advances are not paid until actual publication.

    As far as American publishing goes, the history of author advances can be traced back to the time when it was vital for publishing firms to obtain property rights to foreign-authored books. American publishers paid foreign authors in advance to secure their titles as exclusive property or an authorized reprint from an American house. Advances were viewed as protection for both the authors and the publishers; a financial way of granting exclusive rights.

    The same thing goes on today (see Alan Greenspan) but rarely. The day of the multi-million dollar advance for rookie writers are pretty much done with, in my opinion. Publishers just can't afford the risk.

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  23. an author of an average midlister :)2:20 PM

    My question is about advances, too. How do you think, what makes a publisher offer an extremely high advance for a book which (when it later comes out, turns out to be a good but not outstanding example of its genre, key word not outstanding. In short, a book that by all means looks like a midlister to everyone else) and comes from an author with no fame or platform? Just curious about your opinion. What do they see in those books - unique marketing hook? Amazing writing? Pure coincidence?

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  24. I wasn't aware of any of this. Wow, you learn something new every day.

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  25. It'd hit a hot button for me too. As a musician, one of the main problems we had was dealing with copyrighted material. Anyone could use our lyrics without our permission. As for artists, it's enough that some have problems with the copyright law, due to the internet. Too many free loaders grabbing images for free. Gosh, not even put a link and a name to where they got it.

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  26. Jennette wrote: My question regards agent referrals. How can I approach published author for a referral without putting her in an awkward position? If it were me in this position, I'd want to read a sample of the requester's work and make sure that a) they're a decent writer and b) what they write is something my agent would be interested in. But I'd hate to ask a published author to spend her time vetting my work. I'm acquainted with several published authors, but none that I would consider good enough friends to ask a this sort of favor of. Any suggestions?

    I would politely ask, one author at a time, in private. Really the worst he or she can do is say is no. Also, when you do get a no, don't take it personally. Authors are request-Meccas, and the more successful we are, the more requests we receive.

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  27. Rowan wrote: I think one of the additional dangers is the use copyrighted works may be put to. As an off-the-cuff example, using a particular song to advertise a product, where the copyright holder may loathe said product.

    Excellent point. How a work is used could also materially damage someone's career, particularly if the use proves offensive to the copyright owner's target market.

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  28. One helpful detail on the copyright thing might be to tie it to the amount of time since publication. For example, you might assume that anything published in the last X (20? 30? 50?) years still has a copyright owner who cares, and therefore make it more difficult for the infringer to prove that they made a good faith effort. Or, you could simply eliminate the exemption altogether for recent works.

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  29. Tam wrote: Did you receive my emailed question about the quilt and is there an answer forthcoming?

    Yes and Um...

    My beloved Singer bit the dust last week; I torched the motor (again). I sold my long-arm and my other machines are for household sewing and fine work; I can't make quilts with them. So I have to either have it rebuilt (again) or go out this weekend and buy a new machine. And I'm scared to death of these new machines, they look like something NASA would crash into Mars. Which is the um.

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  30. Sandra wrote: Can you list a few of the things you try to get right in the 1st draft, what you cover in that 1st edit, and what you leave for the final (and presumably big) edit cycle?

    The first draft or daily edit is a one-shot proof for me. I read what I've written that day, clean up the wording, fill in any blanks and perform a spelling and grammar check. I do this one on the screen to save time.

    When the full manuscript is complete, I print out the entire novel on paper and do a comprehensive edit it from start to finish. I read through it and mark anything that doesn't work with a highlighter, and line through things I want to delete with a red pen. This is also when I look at all the things that aren't precisely technical, like how I did with the voice, pacing, flow, logic, character/genre arcs, etc. I hunt for the weaknesses I know I have and fix them. I polish whatever seems too rough, and rough up whatever seems too polished. Once I've typed in these changes, I'll print out a final read-through copy and read the novel again, but like the daily edit, just to proof the new material I've added.

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  31. an author of an average midlister :) wrote: My question is about advances, too. How do you think, what makes a publisher offer an extremely high advance for a book which (when it later comes out, turns out to be a good but not outstanding example of its genre, key word not outstanding. In short, a book that by all means looks like a midlister to everyone else) and comes from an author with no fame or platform?

    I don't know why. I can theorize (excitement factor, a need to fill a hot niche, or narrow thinking on the part of the editor) but I really don't know.

    What do they see in those books - unique marketing hook? Amazing writing? Pure coincidence?

    Hey, I'm still trying to figure out why Alan Greenspan gets seven mil, lol.

    It's hard to work for years to build a readership from nothing and then see some good-looking twit get millions for a novel that isn't any better or worse than what you've written. If there is any consolation, it's that a much-hyped author without the goods crashes and burns almost immediately. I can think of three books and authors like the ones you described, and in each case the book tanked, the editors were humiliated, and the author's career went bye-bye.

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  32. Rose wrote: I wasn't aware of any of this. Wow, you learn something new every day.

    The power of the internet. :)

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  33. Silma wrote: As a musician, one of the main problems we had was dealing with copyrighted material. Anyone could use our lyrics without our permission.

    These days songs and lyrics seem to become public domain the minute they debut. Imagine authors or poets having to deal with that. We'd go nuts

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  34. Katherine wrote: One helpful detail on the copyright thing might be to tie it to the amount of time since publication. For example, you might assume that anything published in the last X (20? 30? 50?) years still has a copyright owner who cares, and therefore make it more difficult for the infringer to prove that they made a good faith effort. Or, you could simply eliminate the exemption altogether for recent works.

    I like this better than assuming work is orphaned simply because a copyright owner is difficult to locate.

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  35. Mary R3:04 PM

    I would like to throw in a big disagreement here. First of all, if you had looked through the linked document, you would have know that the Copyright Office is talking about works older than 25-50 years. There were some comments about making age one of the factors in determining if a work is orphaned, but it was also pointed out that the burden of proof for the other factors would be very strong.

    First, a bit of history. The Constitution says that Congress may grant copyrights for a limited time. For roughly 200 years, this worked. With the rise of corporate media, and especially video and television, older works became more valuable. So, copyright has been extended and extended, to the point where we are headed towards perpetual copyright. The main driver of this has been Disney, protecting Mickey Mouse and their animated films. (The irony is that "Snow White and the Seven Dwarfs" would not have been in the public domain when Disney made the film, if the current regime was in place.)

    While this may seem good for the author, it only protects a rare few. Of the thousands of works published in 1930, only a handful are still in print today.

    Pre-DMCA, there was some wiggle room. The most a copyright owner could sue for if someone else was putting out their works was the money they had made. I knew somebody who sold "grey market" bootleg videotapes, either public domain, or from entities with unknown heirs. He kept very good books, tracking his profit on each work. If someone showed up and satisfied his lawyer that they had the rights to something in his catalog, he just openned his books to them and offered a check for their total profits. Copyright was at this point, a civil violation. The copyright owner had to sue the violator. (Despite what the FBI warning on your videotapes said.)

    Cut to the internet/Napster era. Downloading of songs led to the criminalization of copyright violation, criminal penalties and large fines. The grey market was no longer viable.

    What this has meant is losing the minor works of the past. Because there was only a limited copyright at the time, people did not bother to keep records of works they had created. Heirs might not know about them. So the rights of the copyright owners were protected, but at the cost of the works themselves ever finding a new audience. One of the best explainations of this is from Teresa Neislen-Hayden over at
    Making Light.

    Reading through the Report, which discusses the public comments received, they have some good solutions. Among them: when you get your copyright notice from the LOC, you would also get a form to place with your will, so that your heirs would be able to locate the works and update the rights claims; various registry schemes, etc.

    The main point on the limitations of damages is so that the sorts of small presses and such that would be putting out collections of old short stories and novels would not be slammed by the provisions intended for commercial video pirates.

    It's 2081. Someone just read Rebel Ice. They can't find Roc books or S.L. Viehl. (Records are hard to find since the silicon rot crisis of 2050.) Would you want them to be able to put out a limited edition so that the readers of 3000 might enjoy it?

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  36. Mary R wrote: First of all, if you had looked through the linked document, you would have know that the Copyright Office is talking about works older than 25-50 years.

    I did read the linked documents, and my interpretation stands. Your interpretation is quite interesting, too.

    It's 2081. Someone just read Rebel Ice. They can't find Roc books or S.L. Viehl. (Records are hard to find since the silicon rot crisis of 2050.) Would you want them to be able to put out a limited edition so that the readers of 3000 might enjoy it?

    No, but it's my work, and it should be my decision (or, if I'm dead, which I likely will be in 2081, the heirs to my estate can decide.)

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