Fair Use, The Rights of Personality, and Unintended Consequences

POSTED ON May 20, 2010

Joel Friedlander

Written by Joel Friedlander

Home > Blog > Legal Issues, Self-Publishing, Social Media, Writing > Fair Use, The Rights of Personality, and Unintended Consequences

What’s more difficult to negotiate than print-to-epub conversions? Trickier than a multi-level index? Thornier than translating “tasteful nudes” into Mandarin?


Intellectual property. Your copyright. Foreign rights sales. But most of all, reproduction rights in the era of copy and paste. Books—many—have been written about rights, so I’m not going there.

No, this is about the rights on which the publishing business—and even the business of blogging and web content—is based.

Publishing contracts are actually rights licenses, and publishers negotiate for rights. There are rights agents, too, who will buy rights to a book in one place, and sell them for a higher price in another. The entire book publishing industry, that towering edifice of cultural ambition, rests on the licensing and exercising of reproductions rights.

As an author, you own the rights to your work. When a publisher agrees to publish your book, you license the rights to them. But rights have other sides as well.

Fair Use and Rights Licenses

The most common question I get is about the use of other people’s creations. Quotes from books, pictures off the web, and lyrics from songs. Everybody wants to use them but, curiously, no one wants to get permission. Everyone has heard of something called Fair Use, and is convinced that describes what they are doing.

Last year I was fortunate enough to have David Amkraut, an intellectual property attorney, write an article explaining what fair use is, and what it isn’t, and if you have any questions about it I recommend you start there: What Every Writer Ought to Know about Fair Use and Copyright.

Last week I read an article on the Guardian’s (UK) website by the author Blake Morrison about the Cost of Quoting Lyrics.

At the end of his novel South of the River Morrison had a party scene and quoted lyrics from 60s songs for the atmosphere they would lend. His publisher was kind enough to get the permissions for him. And then came the bill. Here’s what Morrison says:

For one line of “Jumpin’ Jack Flash”: £500 ($717). For one line of Oasis’s “Wonderwall”: £535 ($767). For one line of “When I’m Sixty-four”: £735 ($1054). For two lines of “I Shot the Sheriff” (words and music by Bob Marley, though in my head it was the Eric Clapton version): £1,000 ($1434). Plus several more, of which only George Michael’s “Fastlove” came in under £200 ($286). Plus VAT. Total cost: £4,401.75 ($6,315.68). A typical advance for a literary novel by a first-time author would barely meet the cost.

In the end Morrison split the cost with his publisher, but as self-publishers, what would we do? After this experience, perhaps you will take Blake Morrison’s advice: Don’t ever quote lines from pop songs.

But the message is, rights are real. Intellectual property is just that, property. Because it’s easy to copy and paste isn’t the point.

And then there are the other kinds of rights. But this story is closer to home.

I’ll Trade You My Rights For . . .

I received a request via email last week from a representative of a division of a large corporation with an active user community. As it happens, this community is entirely composed of people who are likely to be interested in the articles I post here on The Book Designer.

It was pretty flattering, actually, to be asked to contribute a particular article to their community and be introduced to them. This is the kind of thing bloggers dream about. After a few emails the representative sent over a release to sign so we could proceed.

I printed it out, signed and dated it and set it out for faxing. I decided to read through it once while I was standing there. These are usually pretty routine. The request had been for an article for educational use, and the “payment” would be an attribution to me as the author and a link back to my blog.

But I was pretty surprised at what the release actually said. You know, a “release” is actually a “release of rights.” In other words, in order to use my material—the article—they wanted me to legally give up some of my rights. Which rights?

How about this:

I understand that my name and the company I am associated with, if any, and any descriptive or written material and all rights of personality or publicity therein may be used and published in any manner [the company] deems advisable in connection with the Content.

Wikipedia defines rights of personality as “the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one’s identity.”

And then,

I understand that by permitting [company] to use my Content, I am granting [company] an irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up and perpetual license to reproduce, publish or otherwise use the Content in any manner [company] deems advisable.

Huh? You Want What?

Think about what is going on here. The asymmetry between the large corporation [company] and little old me is mirrored in the asymmetry of this release of rights. In other words, in exchange for the honor of having my article reproduced on their website, I get to give up control of the commercial use of my name, my company’s name, forever, everywhere, and for nothing, in connection with this particular article. Neat, huh?

There’s also the lack of congruence between the original request for an educational use and the reality of the release, which points in other passages to “advertising, merchandising or publicity purposes.” In fact, the promised attribution and link-back aren’t even mentioned.

As you might expect, I sadly and with real regret declined the offer, and we are searching for other ways to accomplish the same end.

Look, I’ve done my time in corporate America, and the lawyers who draft these documents work everywhere protecting their employers and seeking to make the best deals they can. Fine, that’s capitalism.

But there’s a lesson here for all content creators, creatives, writers, photographers, artists. It reminded me forcefully of the presentation Dave Mathison gave at our publishing workshop recently, and the insistence by all the speakers that day that we be careful to safeguard our rights in every transaction.

For a long time the “creatives” in publishing and other industries have been treated surprisingly poorly, considering the business wouldn’t exist without us.

At the same time, writers and other artists are often business-shy, and so desperate to make that deal, to get acknowledged, or just pay the rent, that we sign whatever’s put in front of us.

In the age of digital transmission, it’s more important than ever to realize that we must control the rights to our own material. Holding onto our rights, understanding licenses, resisting the bundling of rights bring a change to this asymmetry. Without those rights, there is no modern publishing business. Something to think about.

What would you have done?

Takeaway: When dealing with a rights license, be careful you don’t give away more than you bargained for. And treat other people’s rights with equal zeal. We’re in this together.

Joel Friedlander

Written by
Joel Friedlander

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