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Not My Anne – Possible Perils of Book Cover Designs

Last week we got to enjoy watching a bit of a kerfuffle develop after Canadian news outlets trumpeted the availability on Amazon.com of a print-on-demand edition of the first three “Anne of Green Gables” books which featured a “racy” cover – from CBC Books:

The red-headed, freckled, stick thin loveable Anne Shirley dreamed up by Lucy Maud Montgomery first for Anne of Green Gables and then a number of sequels has turned into a busty, blonde haired beauty. A new cover of the trilogy boxed set shows Anne’s makeover from homely orphan to beauty queen.

“There isn’t one element of that picture from the arm position, to the hair, to the face, to the shirt, to the body that says Anne of Green Gables in any way,” Beth Cavert of the Lucy Maud Montgomery Literary Society told CBC’s As it Happens.

Various expressions of outrage were duly echoed in newspaper, television and online platforms: the cover image was so incongruous with the textual description of Anne and with previous depictions that many fans considered the new imagery an affront. Because Lucy Maud Montgomery, the author of the books, passed away in 1942, copyright in the books has expired and the books entered the public domain in 1993 – allowing anyone to create and sell books containing the series’ texts, and to put essentially any cover image they like on those books. (I’m going to ignore the various unique rights that are enjoyed by various parties in connection with the Anne of Gables books – interested readers may want to consult Andrea Slane’s “Guarding a Cultural Icon: Concurrent Intellectual Property Regimes and the Perpetual Protection of Anne of Green Gables in Canada”.)

But let’s imagine for a moment that Lucy Maud Montgomery was still alive or that the books were otherwise still protected by copyright (i.e., imagine LMM had passed away within the last fifty years) – can an author object to a publisher’s choice of cover art? Could a cover be so bad, so inconsistent with the author’s vision for the book, that it actually gives rise to a right of action on the part of the author?

Potentially. There are two conceivable routes to such a claim: breach of contract or infringement of moral rights. An author’s publishing agreement may be negotiated to include some kind of approval right on the part of the author over the cover art. Actual rights of approval are relatively rare, and largely a function of the negotiating leverage which the author brings to the table (i.e., popular authors are more likely to obtain this kind of concession from their publisher); more common is the right of “consultation”, a more ambiguous “right” which boils down to “we’ll talk to you about the cover, but we retain final decision-making authority”. Where an author enjoys an approval right and their publisher publishes a book with a cover that the author did not approve, the author would be able to bring a claim for contractual breach. While damages might be difficult to prove, the author could seek an injunction prohibiting the publisher from printing or selling editions of the book with the impugned cover, which would have the effect of removing the cover from circulation and (hopefully) causing the publisher to re-issue the book with a new cover.

But that only works where the author has the requisite contractual relationship with the book publisher. What if the book publishing contract does not give the author approval rights over the cover, or what if, worse, someone who has no contractual relationship with the author whatsoever prints a bootleg version of the book with an atrocious cover? A cover could conceivably be so atrocious that it infringes the author’s moral rights. The Copyright Act (Canada) accords authors certain moral rights (see Sections 14.1, 14.2, 28.1 and 28.2), among them the “right of integrity”, which is described in the following terms:

28.2(1) The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author, (a) distorted, mutilated or otherwise modified….

(Unlike other creative industries such as film and TV production, book publishing contracts do not usually include a waiver of moral rights.) Moral rights last for as long as copyright does – so even after an author dies, their estate (or other heirs) will be able to enforce the author’s moral rights for a period of fifty years from the year of death. In trying to determine whether a (really) bad cover could constitute an infringement of moral rights, two questions would need to be answered: first, is a bad cover slapped onto a novel a distortion/mutilation/modification “of the work”? Second, how do we determine if the distortion/mutilation/modification has prejudiced the honour or reputation of the author?

The first question is actually a little more tricky to answer than you might think. Confronted with a claim from a disgruntled author, I’d be inclined to at least try to argue that a bad cover has not affected “the work” at all: the author’s “work” is the manuscript they turned in – and the publisher might argue that they haven’t touched the manuscript – instead, they’ve just wrapped something around it. That argument might be a little too cute for some judges: arguably wrapping something around a work constitutes a “modification” just as much as would scrawling graffiti “on top” of a painting or sculpture.

The second question, regarding how “prejudice” is measured, poses more profound difficulties. The author’s own views about their honour or reputation having been prejudiced will not suffice: there must in addition be some kind of “objective” support for the author’s views, though the precise nature of that objective evidence is the subject of conflicting guidance in the sparse Canadian caselaw on point. In Snow v Eaton Centre Ltd. (1982), 70 CPR (2d) 105 (Ont HCJ) (where the author’s moral rights infringement claim succeeded, despite the defendants offering expert evidence that no prejudice had been suffered), the court indicated that the author’s own views regarding prejudice were to be given considerable weight so long as the author’s views were “reasonably arrived at”. Subsequent cases (including Prise de Parole Inc. v. Guerin, Editeur Ltee, [1995] FCJ No 1583 (FCTD), aff’d, [1996] FCJ No 1427 (FCA)) indicate that the author is, in order to succeed in their claim, required to demonstrate “an objective evaluation of the prejudice based on public or expert opinion”.

 

Not My Anne – Possible Perils of Book Cover Designs

Fan Fiction – After the Copyright Modernization Act

When we last discussed “fan fiction” here at the Signal back in early 2010 (Fan Fiction – Perspectives on Fiction and Its Fans) it was noted that the considerations to be taken into account when discussing fan fiction were a mix of legal, artistic and commercial.  But with the proclamation into force on November 7, 2012 of many provisions of the Copyright Modernization Act (Bill C-11), we need to supplement our earlier observations.  Post-CMA there is a new legal consideration to address when discussing fan fiction and Canadian copyright law: new Section 29.21 of the Copyright Act, the “non-commercial user-generated content” provision (referred to in this post as the “UGC exception”).

During the debates over Bill C-11 (and its predecessor, Bill C-32), what would become Section 29.21 of the Copyright Act gained a somewhat misleading moniker: it was often referred to as the “YouTube” or “mashup” exception to infringement.  While neither term is inaccurate, they both carry the innuendo of being relevant only to digital activities – but the UGC exception is in no way limited to online or digital activities.  Fan fiction, described on Wikipedia as “stories about characters or settings written by fans of the original work, rather than by the original creator”, seems to be capable of being sheltered under the provisions of the UGC exception, which permits an individual to use elements of an existing published work to create and disseminate to the public a new work so long as the following criteria are met:

  • the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;

  • the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;

  • the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and

  • the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.

Many observers have noted the potential impact of the UGC exception on the legal analysis of fan fiction, among them Tara Parker (‘Transmedia’ a Copyright Grey Area) and the Writers’ Rights Coalition of Canada (Brief on Bill C-32).  (The urtext of Canadian legal analysis of fan fiction, and a must-read for anyone interested in the topic, Grace Westcott’s “Friction Over Fan Fiction“, was written in 2008, before the UGC exception had been incorporated into the predecessors of the CMA.)  Among lengthier treatments of the UGC exception and fan fiction, Graham Reynolds’ “Towards a Right to Engage in the Fair Transformative Use of Copyright-Protected Expression” (Chapter 13 of From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda) provides a comprehensive consideration of the matter.  Although they do not speak about fan fiction in particular, Daniel Gervais’ “The Tangled Web of UGC: Making Copyright Sense of User-Generated Content” and Len Glickman and Jessica Fingerhut’s “User-generated content: Recent developments in Canada and the U.S.” also provide thoughtful discussions about user-generated content more broadly.

A discussion of the legal implications of fan fiction would not be complete without mentioning two relevant matters which are not affected by the UGC exception introduced by the CMA: moral rights and trade-mark (or passing off) claims.  Under Canadian copyright law, authors possess moral rights, one of which is the right of “integrity”, or, as it is articulated in Section 28.2 of the Copyright Act, the right to prevent (or seek recompense for) any distortion, mutilation or other modification of a work which prejudices the author’s honour or reputation.  The UGC exception, while creating an exception to copyright infringement, has no effect on an author’s potential moral rights claims.  And because fan fiction may make use of elements of an author’s creation such as titles, character and location names to which some form of trade-mark protection applies (e.g., Star Wars fan fiction that makes use of character names like Luke Skywaylker (a registered mark in Canada), Darth Vader (ditto) or world elements like lightsabers, droids or Ewoks (each either currently or previously a registered mark in Canada), there remains the possibility that some form of trade-mark based action could be commenced by the relevant rights-owner.

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Fan Fiction – After the Copyright Modernization Act

In My Other Life, I’m a Superhero – Lawyers in Comic Books

One of the more charming aspects of practicing entertainment law is that the entertainment bar generally tends not to take itself too seriously.  In that vein, I offer William A. Hilyerd’s “Hi Superman, I’m a Lawyer: A Guide to Attorneys (and Other Legal Professionals) Portrayed in American Comic Books” 15 Widener Law Review 159 (2009).  An exhaustively researched (300 footnotes(!)) and entertaining read, Hilyerd’s article provides not just an nice overview of comic book history, but an intriguing analysis of how the portrayal of lawyers in comic books has changed over time. (hat tip: University of Alberta Faculty of Law Faculty Blog)

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In My Other Life, I’m a Superhero – Lawyers in Comic Books

NY Law School Law Review Focus on Google Books

The New York Law School Law Review has published a special edition (55:1) which boasts seven articles focusing on the Google Books Settlement – the issue is available for download.

NY Law School Law Review Focus on Google Books

Reversion of Rights in Book Publishing Contracts

Rachelle Gardner has written a very clear post about the challenges posed by electronic formats to reversion of rights clauses in book publishing contracts:

“Reversion of rights” simply refers to the point in time at which the publisher no longer owns the rights to your book. When the rights revert to you, the author, you’re free to sell them again or do whatever you want with your book. In the past this wasn’t as important because it was unlikely that another publisher would want to take on an already-published book. Your main option was to self-publish and you’d likely not be able to make enough money to cover your self-pub costs.

But all that’s changed in the digital age. Now, when the rights revert, you can simply and cheaply format your book for Kindle and all the other e-book formats, and keep it for sale forever, perhaps making a few extra bucks a year. So there’s a strong reason to want to get the rights back as soon as the publisher is no longer making you any money.

Rachelle provides some useful thoughts on how reversion clauses should be worded to address digital formats.  Ivan Hoffman also has some more general suggestions on issues to consider when negotiating reversion clauses in book contracts.

Reversion of Rights in Book Publishing Contracts