Recycling characters from the past

The Book Babes have an article about the use of fictional characters in modern novels, claiming that the US spring lists are 'larded with novels that appropriate famous fictional characters, not to mention a few from real life.'

Well now, let's differentiate between the two variations on the theme. Using characters from real life in a novel is one thing; using fictional characters is quite another. But in either case, caution, I would suggest, is strongly advised.

First, using real-life characters. I have done this myself, quite a bit. For example, I have written two crime novels cum thrillers under the pen-name Patrick Read.

In The Suppression of Vice, the main character is the real-life nineteenth-century poet, Algernon Swinburne. Once upon a time Swinburne was a household name, but he isn't any longer because, by and large, people don't read poetry. Many of the other characters in Vice are, or were, also real people.

In Beautiful Lady, the principal characters are my own creations, but many of the people that my heroine deals with along the way were famous in their day: the Duke and Duchess of Windsor, Joachim von Ribbentrop, and Joe Kennedy being the chief of them.

(By the way, should you wish to buy either of these books, they are available from Amazon.com as well as Amazon.co.uk.)

There are, I would suggest a number of problems connected with the use of real-life characters in a novel. In the first place, one has to be aware that real people who are still alive may not like what you say about them and may, conceivably, sue. Suing for libel is much easier in the UK than in the USA, but either way you would not want it to happen.

Dead people, on the other hand, cannot sue. And neither (as I understand it) can anyone sue on their behalf, though you have to be careful that you do not imply that villainy is passed on from father to son.

There is, however, a further problem which is best described as a problem of conscience. The dead may not be able to harass you with writs, but are you entitled to portray them as double-dyed villains, despite the fact that they can't hire a lawyer? I suggest not.

In Beautiful Lady I was painfully aware of this problem, because the real-life characters whom I have mentioned above were far from saints. Fortunately I had already planned the book as a story within a story. The novel which you eventually read is a novel which is, allegedly, written by one of the fictional characters, and the internal novelist, so to speak, justifies his approach as follows.

'Isn't it a bit unethical,' one character asks the internal novelist, 'to malign those who aren't here to defend themselves?'

The internal novelist's response is as follows: 'Malign? You think I malign them? Jesus Christ, George, you seem to have lost whatever marbles you ever had.' And he goes on to suggest that the real-life characters were, in fact, much blacker than he paints them.

In other words, my own considered practice was never to portray my real-life characters as doing anything which was any more immoral or illegal than the acts which history tells us they were certainly guilty of. So, if you should ever read Beautiful Lady, and feel that I am being, perhaps, a little harsh on some of these people, just remember that they were all far bigger sinners and crooks than I say they were. And if you think I was rude, you should see what some other writers -- both historians and novelists -- have said about them.

As for the use of fictional characters from the past in novels written in the present day -- well, the Book Babes would have us believe that this is a comparatively new trend, though they date its origins to 1966.

New or not, it does seem to have become a popular practice in the past few years, and here again I have done a bit of it myself. My novel Scrooge and the Widow of Pewsey, written under the pen-name Anne Moore, is (unsurprisingly) a continuation of the life story of Ebenezer Scrooge, who first appeared in Charles Dickens's classic A Christmas Carol. And I also wrote a stage play, Hook in Bath, which features the lovely Captain Hook from Peter Pan.

Here again, I strongly advise caution before you rush ahead and write a novel all about your favourite fictional character. The complicating factor is, of course, copyright.

I say 'of course', but in my experience many writers have only the vaguest grasp of the principles of copyright, and even less grasp of the complexities of copyright law. In England, at least, the law is far from simple.

The plain fact is that, if you want to make use of a fictional character, you had better make damn sure that the book(s) in which that character appears are out of copyright. It's no good saying airily, Oh that book was published in the nineteenth century -- it's bound to be out of copyright. Tain't that simple. Would that it were.

This is not the place to touch on all the complexities. Suffice it to say that copyright in relation to Algernon Swinburne, for example, a man whom I have already mentioned, is far from straightforward. First you have to decide/discover whether a particular poem by Algernon is in or out of copyright. And that will depend (I speak from memory rather than from an open law book) on whether the poem has ever been published, and if so when.

If you discover that a poem (or whatever) is in copyright, then you have to find out who owns the copyright. In my experience, letters of enquiry about copyright, which are sent to publishers or agents, can take up to six months, and several promptings, to elicit a reply. And, to continue using Swinburne as an example, it can turn out that no one knows the answer to your query.

At one point, about 10 years ago, when I was trying to clarify a point in relation to the Swinburne copyrights, I discovered that the publishing firm which had for years claimed ownership of the copyright, and had collected royalties on that basis, had suddenly developed doubts about the matter, based on an interpretation of the 1911 copyright act. So the situation was as clear as mud.

As it so happens, I was able, by the simple expedient of making two phone calls, to shed some light on the matter myself. But to set out the situation on paper occupied several pages.

It is also worth making the point, I think, that there is little purpose in using a fictional character unless that character is famous. And if the character is famous, and is in copyright, the copyright owners are going to want to charge you one hell of a lot of money for letting you proceed.

Some years ago I wrote a couple of TV scripts for Sheldon Reynolds, who then owned, effectively, the Conan Doyle copyright, and thus controlled the use of the character Sherlock Holmes. Reynolds had made a lot of many from licensing the use of Holmes, and at that time, 1979, the great detective was about to go out of copyright. Fortunately (for Reynolds) the UK and European laws were changed, extending the period of copyright. If you want to read all about the dog-fight for control of the Sherlock Holmes cash flow, you can find an account of it here.

The point is, of course, that some of these classic copyrights are worth not just small fortunes, but large ones. If you are the grandson, or whatever, of a famous writer from the first half of the twentieth century, you could be benefiting from tens of thousands of pounds/dollars worth of income every year. This is particularly true of those authors whose works are compulsory reading on US college Eng. Lit. courses. In some cases it's hundreds of thousands of pounds/dollars. Per year.

People who have got used to that sort of moolah rolling in, without having to lift a finger for it, are reluctant to give it up. (See, for instance, the shenanigans over public readings from the work of James Joyce.) So they employ some high-powered fancy-pants lawyers to dream up ways and means of keeping the copyright alive.

This practice is particularly popular among the big-time companies which own big names. If you want an example, read about how the Disney company spent a lot of money on 'campaign contributions' and succeeded in extending the life of their money-spinner, the lovable Mickey Mouse.

Such, it seems, are the procedures through which fair numbers of our fellow citizens earn themselves a crust.

Detective work on the Sherlock copyright issue

On 8 August I wrote about a modern book featuring Sherlock Holmes, and noted (not for the first time) that the copyright of Conan Doyle's work(s) was a murky area, one which the wise person would stay well out of. Ditto for writing novels featuring the characters of any other writer whose work is still in copyright.

I had also written about the Conan Doyle copyright on 8 July, in the context of a wider discussion of the extent to which copyright prevents or allows the use of copyright characters in sequels or spinoffs; and that post recently attracted a comment from Darlene Cypser.

Darlene is a US attorney (among other things) who seems to be unusually well informed on the subject, so I have fished out her comment, lest it get overlooked, and reproduce it below. I finish off with a few comments of my own.

Here is what Darlene had to say:

I don't know enough about UK copyrights to agree or disagree with Ms Solomon's assessment of law there.

However, in the US, while here, too, copyright protects the expression of ideas and not ideas themselves, there is case law that has interpreted the law to protect the use of characters. In the US the use of the character would be considered a "derivative work" and only the copyright holder has the right to create a derivative work. I guarantee you that Disney believes this or they would not have gone to such an effort to extend the copyright law another 20 years to protect Mickey.

The whole issue is moot in the UK related to Sherlock Holmes because Doyle's Sherlock Holmes stories are now in the public domain the UK.

In the US all of the Sherlock Holmes stories EXCEPT those in the Casebook are now in the public domain. (The Casebook was just about to fall out of copyright when the Bono Act extended it another 20 years.)

This leaves an ambiguity. If the stories which defined the character are partially in and out of copyright can you create a story based on the character and claim you are basing it only on the public domain stories?

Of course, you can claim that but would you win in court? I don't think anyone can answer that question at the moment because no court has ruled on it.

Regarding the missing website: It is still around. They just moved it to a different domain, possibly due to the ongoing battles over the copyrights. You see, the website that you referred to does not tell the whole story. It merely tells the claims of Mrs. Andrea Plunket, ex-wife of Sheldon Reynolds. [See below: GOB]

Most Sherlockians acknowledge Jon Lellenberg as the appropriate representative of the Doyle estate. He represented Dame Jean Conan Doyle (the last of Doyle's children to die) and now represents her estate. (Go here and search on Arthur Conan Doyle: tyler.hrc.utexas.edu )

I think you are attributing the publication of some pastiches to Reynolds or Plunket which were authorized by Dame Jean through Lellenberg. The books authorized by Dame Jean or her estate say so.

There have been ongoing legal battles between these two sets of supposed representatives. However, the end result seems to be that both have some claim.

Many people don't seem to understand that if two people jointly own a copyright EITHER can authorize publication and NEITHER can prohibit any publication authorized by the other. That's a fact of US Copyright law.

In this case the parties claim their rights under different children of Conan Doyle.

Actually the person to blame for the mess is probably Sir Arthur himself. He obviously wrote his will without adequate legal advice. (I have a copy in front of me.)

If all the children and all the children's spouses and heirs had gotten along then there would not have been a problem. But you can't count on that. He should have put the copyrights in a trust, named an institution the trustee, and named his wife and children the beneficiaries. Then there probably would not have been 75 years of arguments and litigation.

Well, there you have it. The last time I myself had to make enquiries about a Conan Doyle matter was in 2002. I see from my files that I then corresponded with Jonathan Clowes Ltd., who appear to be the UK agents for Mrs Andrea Plunket. They wanted what I considered to be an unreasonable sum for what I had in mind, so I gave up on the idea. But perhaps, in view of what Darlene Cypser says, I was talking to the wrong people.

If you want to pursue your own ideas for the use of Sherlock or his mates (which I do not recommend), there is a website for the Andrea Plunket side of things. Follow the link to 'About the Estate' and you can find one view of the uninspiring history of the copyright dispute. There is no mention, so far as I can see, of Jon Lellenberg.

If you prefer to deal with Mr Lellenberg, he can be reached at JonLellenberg@aol.com.

The Sherlockian web site, edited by Chris Redmond, makes the following comment on the competing parties:

A recently created web site for "the Sir Arthur Conan Doyle Literary Estate" represents Andrea Plunket, the former wife of Sheldon Reynolds, producer of the 1954 television series starring Ronald Howard as Holmes. Reynolds controlled the copyrights in the 1950s. Plunket is proprietor of a guest house in Livingston Manor, New York. Her claims to rights in the Sherlock Holmes stories have been repeatedly rejected in U.S. federal court decisions (including Plunket v. Doyle, No. 99-11006, Southern District of New York, February 22, 2001; Pannonia Farms Inc. v. ReMax International and Jon Lellenberg, No. 01-1697, District of Columbia, March 21, 2005). She has also filed a claim to the name "Sherlock Holmes" as a United States trademark, and it too has been turned down.

There are lessons for us all there.

Number one, don't get involved with trying to negotiate deals to use other people's characters. It's not worth it. Not only do you have to deal with the (alleged) copyright holder, but, as you can see from the above example, there may be different situations in the US, UK, and every other country on the planet.

Number two, if you yourself own any copyrights which are worth a warm pitcher, for goodness' sake leave a will which is clear. And try to have children who will agree with each other.

Before I finish, here is a story which I find passably amusing.

Some twenty-odd years ago, when Andrea Plunket was still married to the film producer Sheldon Reynolds, I had dinner with her. Yes, I know, it's a very modest distinction, but some of us have to clutch at straws. Anyway, I found Andrea to be a perfectly amiable person, but that was not a universal view.

After Andrea and Sheldon were divorced (I don't know who did what to whom), she went off and became the close companion of Claus von Bulow. Yes, that very same Claus von Bulow who was accused of murdering his wife Sunny with a lethal injection of insulin, and who was, in due course, acquitted by a jury. His story was turned into a film, Reversal of Fortune, starring Jeremy Irons (who won an Oscar in the process).

At one point in all these shenanigans, Sheldon Reynolds was asked what he thought of his ex-wife going around with a man who had been accused of murder.

Sheldon gave it a bit of thought. 'Well,' he said, 'let's put it this way. If Claus marries Andrea, he'll wish he'd been found guilty.'

Copyright in characters

About twenty-five years ago I wrote two television scripts for an American producer called Sheldon Reynolds.

Reynolds at that time either owned or controlled the copyright in Conan Doyle's famous character Sherlock Holmes. The precise nature of Reynolds's involvement is obscure; there was eventually a court case about it. The online account of this case seems to have been recently removed, but the Google cached version may still be available when you read this. Should you care enough to bother.

Anyway, in the 1970s Reynolds seems to have exploited the Conan Doyle copyright to the full. Scarcely a week went by without a Sherlock Holmes meets Dracula (or some such) film or novel coming out.

When I knew Reynolds he was preparing to film a series of 26 half-hour episodes featuring the great detective. I adapted one of the Holmes stories -- The Speckled Band -- and wrote one other original script. The series was then filmed in Warsaw, presumably because costs were lower there.

The point about this is that no one in those days seems to have questioned the claim that use of the character Sherlock Holmes was protected by the Conan Doyle copyright. The copyright was in fact about to expire, fifty years after Conan Doyle's death, and quite a few people were reportedly preparing to make use of the character for free, after the expiry. (The copyright was later revived when English law extended the copyright period to seventy years after an author's death.) But, I repeat, no one doubted that he who controlled the Conan Doyle copyright could also say yea or nay to the further use of the character Sherlock Holmes.

Well, if you're a regular reader of this blog you will know that at least one UK expert on copyright takes a different view -- at any rate under English law. I referred only the other day to an article by Nicola Solomon, which is available online. And Ms Solomon clearly takes the view that anyone can use a character for a sequel, without permission and without paying a fee, subject to a few simple precautions.

Ms Solomon's first sentence seems pretty unambiguous to me: 'One might assume that it would be an infringement of copyright to use characters and style developed by another person. Not so; copyright protects the words and form in which ideas are expressed, not the ideas or characters themselves.'

What I want to do today is draw attention to a case where this question of the right to use characters in a sequel or spinoff work may turn out to be of considerable significance. And it may also turn out to be a bonanza for the lawyers of this sceptred isle.

Booktrade info provides a link to a news item on a James Bond web site, known as Commanderbond.net. This reveals that there is to be a trilogy of books, published by the ancient firm of John Murray, no less, entitled The Moneypenny Diaries. These will be, or purport to be, the diaries of that very same Miss Moneypenny who served as secretary to James Bond's boss in the original novels by Ian Fleming. The first book is due out on 10 October.

There is no mention yet, I notice, of publication in the US, or anywhere else, where the laws will probably be different. Though whether, in these days of online booksellers, that makes any practical difference at all, I wouldn't care to say. You can already find the UK publication listed on the German Amazon site.

Commanderbond.net claims that, when they first heard about these books, they approached Ian Fleming Publications (IFP), the company which controls the literary rights in Fleming's work, for further details. And, when asked about the books, IFP denied all knowledge; they said, however, that they would look into the matter.

Commanderbond.net suggests that this denial might, perhaps, have been IFP 'playing coy' -- but suggests no reason why they should do so. And The Moneypenny Diaries, they add, could be the first in a series of 'new promised projects from the heirs of Ian Fleming.'

In search of clarification, I turned to the official IFP web site, on which, so far as I can discover, there is no mention of Ms Moneypenny or her trilogistic diaries.

Under the FAQ page on the IFP site there is, however, a warm-hearted and encouraging statement, as follows:

How can I get my James Bond novel published?
James Bond novels and short stories may only be published under licence from Ian Fleming Publications Ltd. We do not accept unsolicited material and it is company policy to return any such material unread.

So, the question is this. Have John Murray and their author, Kate Westbrook, come to an agreement with the owners of the Fleming copyright or have they not? And, if they have not, will IFP test the matter in the English courts?

This question is one of considerable importance. There are a number of UK companies which make millions of pounds a year from exploiting the copyrights of famous authors: Chorion being perhaps the most famous. Such companies are not going to be happy if someone sets a precedent proving that, under English law, anyone can use their precious characters in a sequel or spinoff without paying them a share of the proceeds.

Well, it shouldn't be long before we know the answer. If The Moneypenny Diaries is part of the official IFP package, IFP will doubtless be plugging the trilogy on their web site, on or before publication date.

And if the opposite is true, and a court case ensues, that can't possibly take longer to resolve than, oh, two or three years.

Macaulay on copyright

One of the unexpected pleasures of being a blogger is that people write and tell you stuff which you would otherwise never have known about. So I have to thank the novelist and blogger Christopher G. Moore for drawing my attention to a cogent speech on copyright which was made by Macaulay, in the House of Commons, in 1841.

This is a longish speech, but it is recommended for its sound analysis by no less an authority than David Vaver, Professor of Intellectual Property at the University of Oxford. That being the case, I had a look at it.

Macaulay was speaking to a proposal, put forward by Mr Serjeant Talfourd, to extend the term of copyright to 60 years, reckoned from the death of the writer. Copyright at that time was limited to 28 years from first publication, or for the rest of the author's life, whichever was longer.

Macaulay was firmly opposed to the new proposal. He argued that it was in the public interest that books of various kinds should be written; that rich men were unlikely, on the whole, to devote their time to literature; and that Parliament should therefore create financial incentives for authors by granting them copyright.

He went on to argue, however, that, copyright, even if necessary, was a form of monopoly, and that it carried with it many of the disadvantages of monopoly. He demonstrated, through a number of historical examples, the damage to the public interest which would arise if the proposal to extend the term of copyright were to become law.

Macaulay took the view -- and again he gave examples -- that it was extremely likely that, after an author's death, the new owner of the copyright would sell it, or that it might be passed on three or four times in 60 years, ultimately coming to be owned by someone, or some organisation, who had absolutely no connection with the original author at all. This new owner might suppress the work, to the public disadvantage; or, more likely, he would exploit it ruthlessly. The consequence of monopoly, Macaulay argued, is that goods become scarce, expensive, and bad.

The proposed changes in the law, declared Macaulay, would create thoroughly bad law. And bad laws are ignored and flouted.

Well, you are probably ahead of me on all this. You will know, if you are a long-time reader of this blog, that ownership of certain valuable copyrights in the UK has long since passed out of the hands of the heirs and successors of successful authors. Ownership has passed to companies set up specifically to buy, and to exploit to the absolute utmost, rights in books and other intellectual property which are seen as having long-term possibilities: Chorion being a prime example of such a company.

You will also know, through my references to the writings of such authors as Kembrew McLeod, that many of the larger media corporations are busy grabbing the rights to anything, no matter how apparently trivial, which can be used to generate revenue. This is a process which Macaulay foresaw, in principle, and which he was absolutely right in declaring to be contrary to the public interest.

Macaulay's speech, by the way, led to Mr Talfourd's bill being rejected by 45 votes to 38. But subsequently, by the simple expedient of bribing politicians (officially known as providing campaign funds), big companies have succeeded in getting the terms of copyright extended far beyond anything which is in the public's interest: or even, in my view, the interests of authors.

More or Lessig

The learned Lawrence Lessig recently gave a talk on copyright issues at the UCLA law school. You can find a very handy summary of what he said on the UCLA site. Anyone who uses the internet regularly enough to be reading this blog should take the trouble to read the key points of Lessig's argument, which are helpfully listed at the top of the page.

Perhaps the most interesting of Lessig's arguments, to the relative newcomer to these weighty issues, is that every use of the internet involves making a copy, which theoretically requires the copyright owner's permission, which makes criminals of us all. But do we care a tuppenny whatsit? No, sir and madam, we do not. Hence respect for the law is daily diminished. Which is how we come to have 11-year-old kids being sued by record companies and then going out and breaking all kinds of other laws. Get real, folks, and sort this out.

Lessig wisely makes the point that about 98% of published copyright material -- note the emphasis on published -- has no commercial value whatever after a year or two. So giving it a copyright life of 94 years, or whatever term the American Congress has recently dreamed up, is both unnecessary and unhelpful. It hampers the free exchange of ideas, a process which, for the small and shrinking minority who are still capable of rational thought, has historically produced some important results.

As for copyright in unpublished material -- well, pardon me while I give a rueful laugh. You won't have to look far in the advice columns for writers to find 'experts' who advise you to send a copy of an unpublished manuscript to yourself via registered mail, and then lock it in a bank vault, so that if and when someone steals your successor to Harry Potter you can whip it out and cry Aha! And claim your million dollars in the courts.

This is all complete cobblers, of course. In the first place, the likelihood is that your wonderful novel has no commercial value whatever. You are most unlikely to be able to sell it to a commercial publisher. If you do, the publisher is unlikely to be able to sell many copies of it. And if you publish it yourself, the costs are likely to exceed the profits from copies sold. So save the postage on the sending it to yourself business. Publishers have a general rule of thumb. Suppose a manuscript comes in covered in large labels which say COPYRIGHT!!! ALL RIGHTS RESERVED!!! ANYONE STEALING THIS MATERIAL WILL BE BEHEADED AT DAWN!!! The rule of thumb is this: the larger and more strident the labels, the bigger the heap of crap this manuscript is likely to be.

In any case, suppose somebody does rip off your work, what are you going to do then? Sue? Think twice before you do. Successful suits for breach of copyright are seldom reported. I know of one case where the author of a book on a pop star opened a newspaper and saw an article which was, in his opinion, more or less a straight steal from his book. He sued the newspaper and won. Only trouble was, he was awarded £8,000 in damages, and had legal costs of £20,000.

Then there was the Full Monty business. A good many years ago I saw a New Zealand play called Ladies Night, about a bunch of unemployed men who turned themselves into male strippers. A few years later, along came a movie called The Full Monty, about a bunch of unemployed men who.... I assumed the movie was a filmed version of Ladies Night. Turns out it was an 'original story'. The authors of Ladies Night sued the makers of The Full Monty for stealing their story. They lost.

Lawrence Lessig has devised a means whereby copyright holders can give a general authorisation for people to use their work on a much more generous basis than is allowed by the copyright laws. It's called a Creative Commons licence. As soon as I get organised I shall put a notice about it on this blog.

Copyright, copywrong, copywrong; copywrong, copyright, copyright

Maud Newton reports that the American authorities, heavily bribed by the big intellectual-property-owning companies, want to strengthen the laws against breach of copyright.

Sorry, sorry, strike that bit about politicians being bribed. Big companies give campaign funds, don't they? All in the interests of democracy, freedom, guys in white hats and all like that. Greedy self-interest would be a totally false description of their noble stand on matters of principle.

Speaking of copyright, do you ever get the feeling that this is a subject on which 99% of the people in the world are very fuzzy thinkers? To find a a classic example of such fuzzy thinking, nip over to the New York Times (if they'll let you in; the man at the door is very picky) and read what Mark Helprin has to say about copyright. He thinks it should last for ever. And if it doesn't, that's slavery. He says. (Link from Galleycat.)

Well, when an article like that appears in a prestigious place, then I suppose somebody has to sigh deeply and take it seriously; and that somebody, naturally, is Professor Lawrence Lessig.

Lessig was written about here very early in the life of this blog, and often since; he is one of the main thinkers behind the Creative Commons movement. In response to the Helprin 'contribution', Lessig has set up a wiki page which deals, in considerable detail, with the matters raised by Helprin. The slavery nonsense is dealt with in section 10.

Look, I have a modest proposal to make about this. Why don't we just pass a law, applicable in every country in the world, which says that the copyright of everything ever written or created, past, present or future, belongs for ever and ever amen to the Walt Disney Corporation? Hm? That would make everything perfectly simple and straightforward, wouldn't it?

Everyone would know that, if they wanted to quote three words of anything, they would have to pay the Disney Corp $500. Per word. And then we wouldn't have all these pointless debates about how long copyright should last, and who owns it.

Who could possibly object to that? Eh? Who? Macaulay? Who he? He's dead, isn't he? What do dead guys know about anything?

More on copyright in characters

Here are a few more thoughts on the question of copyright in characters, which I discussed last week. These extra thoughts are prompted by C.E. Petit, Esq., author of the Scrivener's Error blog, who kindly wrote to me afterwards.

Fortunately, I am not tempted to write anything involving anyone else's characters. I have done this in the past -- see Scrooge and the Widow of Pewsey, written under the pen-name Anne Moore -- and on that I took legal advice (having been caught out once before). But I am not going to do it in the future because past experience suggests to me that the copyright complications are so enormous that it just ain't worth the hassle. The C.E. Petit communication makes me even more convinced of that.

To see what I mean, pay a visit to the Warped Weft. There Petit gives us an enormously long discussion of copyright issues relating to fan fiction and in terms of US law. Whether you wish to, or need to, read all the way through this, you should be able to see at a glance that the topic is not simple. (If you print it out, the Petit piece runs to 31 pages.)

Mr Petit's overall conclusion, if you scroll through to the end, is that copyright law is not the best tool for analysing the rights and wrongs of using other people's characters. The best tool is trademark legislation. However, for a variety of reasons, mainly the self-interest of those involved, we are likely to have to put up with using copyright law in the foreseeable future. And since (it seems to me) copyright law varies significantly even between two nations such as the USA and the UK, the result is, more often than not, wonderful pay days for the lawyers and not much enlightenment for anyone else.

If you follow up some of the leads in the Petit discourse you will find that there are quite a few legal professionals who are also much interested in this and related copyright problems. I for one am deeply grateful to the C.E. Petits of this world, who give us the benefit of their expertise as part of the gift economy.

Once again, lest we should ever take it for granted, it is worth saying that, when I was a lad, very little of such informed, detailed, and valuable comment was available anywhere. Let alone free, and at the click of a mouse.

Follow-ups

A couple of commenters have recently pointed me in the direction of web sites which have proved to be more than usually interesting (to me, at any rate).

'Interesting', by the way, is a word that I seem to be typing more and more often these days. I suppose it is redundant. If a topic wasn't interesting (to me) I wouldn't be mentioning it. However, the word will probably continue to appear from time to time.

And, also by the way, one should not, I suppose, be worried about repeating a word if it is in fact the most appropriate word for one's purpose. It was the great Fowler who, in a famous essay of 1926, deplored attempts on the part of 'second-rate writers' to avoid using the same word twice in the same sentence. Fowler referred to this as the 'elegant variation' error. (And there is a rather good book blog named after the essay.) Given what Fowler says, I probably shouldn't worry about using 'interesting' in more than one post.

But I digress. As usual. Back to the follow-ups.

I was advised by a commenter to have a look at a relatively new blog, Short Term Memory Loss, and indeed it is worth a look. It will probably get added to the blogroll (on the right) shortly, but the roll is beginning to look mighty long and I don't suppose one can list every book blog in the known universe. Never mind.

If the author of Short Term Memory Loss has given his name, it has escaped my notice. But one of the books that he mentions is John Preston's Hustling: a Gentleman's Guide to the Fine Art of Homosexual Prostitution. Which is, at the very least, an intriguing title.

So I followed it up. And Google led me to a site called Topman. This is dedicated to the life and work of John Preston, who, as you would expect, was a writer. He was also, by sexual inclination, a homosexual sadist (hence Topman, in the jargon of that world), and he died of AIDS complications in 1994.

During his lifetime, in fact during a period of fifteen years, Preston authored or edited some 49 books. A short introduction to the man, on the Topman site, says that he 'brought pornography to the literary world, [and] he also fought over the years to bring literature to the world of pornography.'

Now that is interesting. It may not be too everyone's taste -- won't be, in fact -- but once again I have come across a writer that I've never heard of before but who clearly had some talent, a great deal of determination, and some success.

In particular, Preston was the author of an essay called 'The right to write', which I would like to read but I have not yet been able to locate an online copy. The Topman site/archive evidently has a scanned copy, but if it's accessible I ain't found it yet. (Note the elegant variation.)

Another commenter made reference to fan fiction, and this led me to a truly astonishing site: the home of Harry Potter fan fiction.

Fan fiction is a phenomenon that I had kind of heard of before but never really come across, much less studied. As its name suggests, fan fiction is fiction written by those who are great enthusiasts for a particular writer's work, and have borrowed his or her characters and contexts to write fiction of their own.

The Harry Potter fan fiction site has no less than 14714 stories, 68032 chapters, and 7482 authors. Now that is serious productivity.

The issue which immediately came to my mind, on encountering this site, was that of copyright. If there are 7482 writers (so far) cheerfully and passionately churning out stories featuring Harry and his friends, what is the copyright position?

I used the site's search facility to see what the organisers/owners have to say about copyright. The answer is nothing much. But there is a short statement at the foot of the search page:

All stories remain the property of their authors and must not be copied in any form without their consent. This is an unofficial, non profit site, and is in no way connected with J.K. Rowling, Scholastic Books or Bloomsbury Publishing or Warner Bros. It is not endorsed by any of the aforementioned parties. Rights to characters and their images is neither claimed nor implied. Although we provide links to other websites, we are not responsible for any material at these sites. You acknowledge that you link to these other websites at your own risk. All original administrative content is copyright of the site owner and must not be copied in any form (electronic or otherwise) without the prior consent of the owner.

In other words, the issue of whether or not these fans, and the site, are systematically breaching J.K. Rowling's copyright on a substantial scale is neatly sidestepped. But the owners of the site make it clear that they will sure as hell defend their own copyright! Mess with them and the heavy mob will call round and break both your legs.

The technical term for this kind of thing is naughty.

Should you be intrigued by the fan-fiction phenomenon, there is an interesting starting point for further investigation on the wikipedia site (a site which, incidentally, is become not merely useful but almost the first port of call for reliable and extensive information). And it is here that you will find a most valuable discussion of the legal aspects of the practice.

In the wikipedia article you will find it stated that writers and copyright holders vary greatly in their attitude towards this stuff. Some take a firm stand against it: Lucasfilm (Star Wars) and Anne Rice, for example. Others tolerate it, in order to avoid alienating their most frequent buyers of product; and some even encourage it. J.K. Rowling is said to be relaxed about the matter, though she is troubled by 'adult-themed' Harry Potter stories. Whatever they are. Harry Gets Laid?

In order to shed some light on the position under UK law, I went poking through various archive boxes in my study. I was, as usual when I do this exercise, somewhat appalled to note the amazing amount of work that I did in the past, much of it abortive, but I eventually found what I was looking for.

The item in question was a 1994 article by Nicola Solomon, entitled 'Sequel Opportunities'. And, very much to my surprise, it turns out to be available online. It is posted (as one might have guessed) by the indefatigable Andrew Malcolm on his AKME site. (Andrew Malcolm's online law library, by the way, is a massive resource, and not just for UK writers; he offer it for free.)

Nicola Solomon is described by Malcolm as a leading literary lawyer, a Deputy District Judge and Partner of Finers Stephens Innocent. Her article makes startling reading, and I remember being taken aback by some of the statements which appeared in it when I first read it; they are still pretty jaw-dropping today.

Nicola begins by saying this: 'One might assume that it would be an infringement of copyright to use characters and style developed by another person. Not so; copyright protects the words and form in which ideas are expressed, not the ideas or characters themselves. The type of copying envisaged by the law, taking large chunks of original text, is unlikely in the case of sequels which aim to develop an original story, not replicate it.'

Well bugger me, I thought. And still I do think. I find that legal advice very surprising.

Nicola suggests various precautions for the writer of a sequel, such getting an endorsement from the original author or making it absolutely clear that the sequel is not endorsed by the original author; and also ensuring that your publisher does not land you in hot water by suggesting (falsely) that there is a connection with the original author. But apart from that, open house seems to be the order of the day.

At least, it is under English law. As for elsewhere, Nicola says: 'In the US, copyright in characters is far more established and the rules preventing unauthorised use may be more restrictive.' So writers would be well advised to take separate advice on the legal position there.

As ever, it is staggering to be be given proof of what a vast resource the internet is. And virtually none of it was available ten years ago.

Kembrew McLeod: Freedom of Expression

I am indebted to Robert Nagle, a commenter on the Gerard Jones affair, for pointing me to Kembrew McLeod's important book, Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. Should you wish to read it, you can download a free pdf version from the author's web site. And, if you care about personal liberty, freedom of speech, and all like that, I strongly recommend that you do.

It seems to me that European culture -- and for this purpose I take Europe to include North America -- has given the world almost everything of any value: certainly as far as material wealth and social organisation are concerned. But it is noticeable that, even within the overall envelope of European culture, it is all too easy for despotism, of one sort or another, to become the ruling paradigm. (You see? That word paradigm gets in everywhere sooner or later. But you also see what I mean, I hope. And if you don't, what I mean is that it is all too easy for the forces of darkness to prevail.)

And now, as if we didn't have enough to worry about, Kembrew McLeod comes along and tells us of the growing danger to our ability to say what we think, be inspired by a book or a piece of music to write a new book or piece of music, and even, it seems, to use certain gestures and groups of words. Just for starters, and just to prove how silly and dangerous a world we live in, Kembrew tells us that, while an undergrad, he trademarked the term 'freedom of expression'. So he 'owns' the term freedom of expression, in the same way that Fox News (bless them) 'own' the term 'fair and balanced'. (Fair and balanced! Ha! Pause while author tries to stop sniggering and regain a straight face.)

Thus Kembrew McLeod has the legal power, should he wish to use it, to prevent you or me from publishing (at least in the US) a book with the title Freedom of Expression. Which he would not do, he tells us. What he has done, just to emphasise the absurdity of a law which allows someone to trademark a few words like that, is to sue the giant phone company AT&T when they used the phrase freedom of expression in an ad.

Do you begin to get the idea? We live in a lunatic, lunatic world, in which legislation allows big companies to exercise iron control over what you say, write, and, if they have their way, think. For further example: Donald Trump has trademarked the words 'You're fired'; and not only that but he has also trademarked the hand gesture that accompanied the phrase when he used it on the TV programme The Apprentice. And, turning to copyright law, did you know that the song Happy Birthday to You is in copyright? It belongs to TimeWarner until 2030, and don't think they won't charge you a fee for using it at your kid's next party -- if they find out. No incidence of copyright infringement is too small for some of these greedy bastards.

I could go on. I could point out that, if you want to quote Martin Luther King's famous 'I have a dream' speech, in print, King's heirs and successors will expect you to pay $50 a sentence for the privilege. I could point out that the Church of Scientology has used the copyright laws to prevent Google from leading any internet searchers to sites which criticise said Church. And I could remind you, if you need reminding, that intellectual-property owners who take a dislike to your web site can easily make you disappear from sight by threatening your ISP. And I could warn you that, if you visit a privately owned shopping mall wearing a T-shirt with a slogan that the owners don't like, they can get you arrested. But there are limits to my endurance. I can read and quote only so much of this nonsense and downright wickedness before I throw up my hands and say The hell with it.

What you need to know is this. Recent US legislation, particularly the Sonny Bono Copyright Term Extension Act, and the Digital Millennium Copyright Act, have given additional powers to those whose greed, stupidity, and commercial shortsightedness know no limits. And the result is a potentially disastrous chilling effect upon artistic creativity and the interchange of scientific knowledge.

Here, to illustrate the practical problems which can arise from all this, are a few examples of relevant events in just the last week or so. I make no comment, please note, about the rights and wrongs of any of these cases; I simply note that these are instances where people have got their hand caught in the legal mangle, or where a big corporation is trying to do something to extend its powers.

Andrew Knight is trying to patent a storyline. Judith Kelly is accused of plagiarism. And Cambridge University has angered dons with proposed changes to rules allowing them to patent inventions; critics fear that the proposal to reform the system of intellectual property rights at the university will crush academic freedom, when the rights to ideas are no longer controlled by the creators. The University of Georgia Press has withdrawn Brad Vice's The Bear Bryant Funeral Train. And Amazon.com (which has already patented the one-click ordering system) has just been granted three further patents, including one on consumer reviews.

Fortunately, for the likes of you and me, there are a number of defenders of the faith. First, there are university professors such as Kembrew McLeod and Lawrence Lessig, who are intelligent, well informed, and courageous, and are telling it like it is. They are in the vanguard of the war, and it is a war, against those who wish to impose total monopoly control in copyright situations. They argue instead for the tradition of openness, maintaining that copyright law is intended to promote the dissemination of creative expression, not suppress it.

The second encouraging factor -- and it is a measure of how deep a hole we have dug for ourselves that I, who have never had so much as a parking ticket, should say this -- the second encouraging factor is the existence of a large number of young people who can only be described as anarchists. They are people who are simply not going to stand there and take this shit. Why should they? They have fifty years of active life ahead of them -- why should they allow what they see, read, listen to, and say, and create by way of art, be dominated by some corporate asshole?

In 2000, the Metallica guitarist Lars Ullrich made a very serious mistake. He volunteered to be the front man for an attempt to close down Napster, an attempt which included a personal visit to Napster HQ with lawyer and press accompanying him. A crowd formed outside, and a teenager screamed at him, 'Fuck you, Lars! It's our music too!'

And you know what? The kid was right.

No one is suggesting here that talent and hard work should not be rewarded. Far from it. Any and all digital availability of professionally published music, or prose, or images, should, in my view, be directed towards generating the maximum possible income for the creators. And so when Cory Doctorow makes free digital copies of his books available for download, he does so not out of any charitable instinct but because he thinks that that's his best marketing strategy. And I agree.

The point being made here is not that music should be free for everyone, all the time. The point is that it is not a smart move to alienate, and make criminals of, the people who are most passionate about your product. Music, in particular, is meaningless without an audience. And Metallica's fame and fortune had been built upon a fan base which, when the band was all but unknown, repeatedly violated the copyright laws by taping concerts and exchanging cassettes. Signs are that Lars Ullrich found out the hard way that he'd got it all wrong when he talked about piracy. So have thousands of others, including the big-time business executives who don't have a clue about what inspires the creative drive which results in their precious product; and who really don't understand how to get the best out of it in terms of revenue generation.

The publishing industry, bless its little cotton socks, seems intent on repeating all the mistakes that were made by Hollywood with the video-cassette recorder, and by the music industry twice -- with cassettes and then with downloads.

So -- what, if anything, is to be done?

Well, my advice, for what's it's worth, is that, to begin with, you should read Kembrew McLeod's book. Freedom of Expression is scholarly, learned, and yet informally written and readily readable; so maybe there's hope for America yet. I could have done with more sub-headings in the chapters, because I am a simple sort of fellow, easily intimidated by unbroken slabs of print.

Next, instead of playing Ain't It Awful, you should do something positive. You must have some expertise in something. Write it up, and post it on the internet for free. Instead of making a fool, and a nuisance, of yourself, by trademarking a phrase or trying to insist on payment for your work, give it away for free. Stick a Creative Commons licence on it (as on this blog). Encourage people to use it, transform it, make money out of it if they're smart enough.

Finally, don't -- please don't -- fall into that dreadful writer's trap of imagining that you are the next J.K. Rowling, and slap a big fat copyright sign on everything you write, complete with dire warnings about suing the arse off people who even quote it to a friend. Acquire a little dignity, and a little common sense. You and I should count ourselves lucky if we find half a dozen readers -- apart from Mum -- who will even bother to read our work through to the end.

The joys of copyright

The issue of copyright has been discussed here from time to time. For example, in February I mentioned that, even in 1841, Macaulay had wisely argued to the House of Commons that extending the term of copyright much beyond an author's lifetime was not an idea which was in the public interest.

The House of Commons then agreed with him, but later legislative bodies, in Europe and the USA, have taken a different view. And if politicians go on taking funds from companies which have a vested interest in making copyright last for ever, then we can expect that the term of copyright will steadily be increased further and further. This will greatly benefit the media companies' shareholders, and those who control writers' estates, but it won't do much for anyone else.

I am reminded of all this by a post by Michael Schaub on Bookslut. James Joyce died in 1941, but, thanks to the politicians of this world, his work is still in copyright. The Joyce estate is now controlled by one Stephen Joyce (the great man's grandson), and Stephen Joyce is, in his small way, also famous. The following story shows why.

An academic who has devoted years of his life to studying the work of James Joyce, and is a recognised expert in the field, recently applied to Stephen Joyce for permission to quote from Ulysses. Stephen demanded a fee of $1.5 million, and told the academic: 'You should consider a new career as a garbage collector in New York City, because you’ll never quote a Joyce text again.' The full story is contained in an article in the New Yorker.

What a charming fellow Stephen is. And how clearly this incident demonstrates that the public interest in literature is best served by extending the term of copyright steadily towards infinity.

The wisdom of Tim O'Reilly

Tim O'Reilly is a publisher and general computer guru whose thinking about the interaction of the internet and publishing has been recommended here more than once. On 18 May 2005, for instance, I referred to his 2002 essay, in which he made a number of telling points: the most notable, to my mind, being that 'Obscurity is a far greater threat to authors and creative artists than piracy.' And again, on 28 February 2006, I referred to Tim O'Reilly's definition of Web 2.0.

Now, thanks to John Sundman, I have been pointed to some other most interesting material. On O'Reilly Radar, for instance, you can find the results of an analysis undertaken by O'Reilly Research. It's a longish article, and calls for some concentration, plus a study of the comments and discussion afterwards.

My interpretation of the data is that the internet creates a much more level playing field for writers and publishers than does the high-street bookstore. In other words, making books available online -- in one form or another, whether complete texts or samples -- enables readers to find, and perhaps buy, such books much more readily than does the average madhouse which currently masquerades under the name bookshop.

Here on this blog we tend, perhaps, to concentrate on fiction, which may lead us to overlook the fact that most books are non-fiction of one type or another. In my opinion, non-fiction writers are going to find that Web 2.0 is really good news. And not only in terms of sales: as Lynne Scanlon has pointed out, a book can provide benefits other than simply through royalties; and the better known that book is, the greater the benefits.

John Sundman also led me to another piece by Tim O'Reilly, this time entitled Publisher, be very, very afraid? Actually this is a quote from the New York Times headline in reference to Kevin Kelly's recent article Scan this book. Kelly's article included, among other things, an argument in favour of a universal, free digital library that would be available to everyone, even 'elderly people in Peru'.

Scan this book, published 14 May 2006, got a cool reception in some quarters, notably from Sara Nelson of Publishers Weekly. Nelson was alarmed by Kelly's comment that the original purpose of copyright was as an incentive to keep a creator working, whereas the 1998 congressional extension of copyright 'now exist[s] primarily to protect a threatened business model.' And among some of those who commented on Sara Nelson's editorial, the Kelly piece seems to have engendered abject terror. The idea that present copyright laws might not be in the best public interest upset a few people (but not me -- see my comments on the Nelson article at the PW site).

Well, Tim O'Reilly's point is that much of this alarm at Kelly's ideas is misplaced. 'There is,' he says, 'a lot to learn in the new world, but the biggest fear that publishers should be thinking about is the fear that they will be displaced by new publishers who are better at mastering the [changed] rules of business than they are.'

As with the first O'Reilly essay, this one has some enlightening comments attached to it. There is the parent, for instance, whose teenage daughter has built up a small but international online audience for her music. And there is the thinker who proposes the following thesis: 'The entire publication industry, all media, will be reduced to four businesses -- retail, reviewers, librarians, and content creators.' (O'Reilly disagrees.)

As for the copyright issues raised by the Kelly article: well, I am in favour of observance of the law. However, as Macaulay pointed out, in the House of Commons in 1841, bad laws are ignored and flouted. And if copyright law, or certain aspects of it, comes to be seen as a barrier to the public interest, something is going to have to give. Compromises are going to have to be made.

And, of course, before you get too panicky about that, remember O'Reilly's main point. The smart thing to do is not to stand there wringing your hands, but to figure out a way to make the new technology work to your advantage.

One of O'Reilly's commenters says this:

Consider Michael Tiemann's "Metcalf's law" economic analysis of FLOSS -- very relevant, I think, to your own view of Web 2.0: "The value of a network is proportionate to the square of the number of users." The potential value, therefore, of the cross-linked, universally annotatable library is vast. Is copyright law enough to lead us to resist that potential value? I would think not -- rather, the assumption of such a library should be a dominant factor in planning for the next few years. (I say that copyright law is not strong enough here because it is unenforcable beyond a certain boundary and, if rivals outside of that boundary begin to realize the value of the hyper-participatory-library, those inside the boundary will have no choice but to adapt by emulation.)

I don't know whether this stuff interests you at all, but if you're a publisher you really ought to wrestle with it, whether you find it interesting or not; and, if you're a writer, all the more so. The comments on this second O'Reilly piece are, by the way, several times longer than the original article itself, and will take you some time to absorb.

Words of the week

Leigh Russell is smart enough to have a three-book contract (with No Exit Press) for a series of UK-based crime novels featuring a female police officer, DI Geraldine Steel. On his blog, he writes weekly about the process of writing.

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Penguin, I hear, has successfully defended itself in a copyright case (link from the Bookseller). Which proves absolutely nothing to me except that it is most unwise to get involved in these battles. Lord Goodman used to say that anyone who sued for libel was demonstrably mad, and to my mind the same applies to copyright, which knobs on.

I speak here of individuals, of course. For companies it's different. Penguin, for example, can certainly afford to pursue breach of copyright cases where international, deliberate, and organised piracy is concerned. In fact, can hardly afford not to.

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Ron Hogan on Galleycat reports that big publishers are deliberately making royalty payments late, and paying less than is due, in the hope that agents and writers won't notice.

Nothing new here. I remember, about thirty years ago, reading an article in the Financial Times. A tradesman (plumber or some such) was getting regular work from a big firm, but his invoices were ignored. Eventually he managed to speak to someone in the big firm's accounts office who airily told him, 'Oh, we never pay anything until we get a writ.'

So, from then on, the plumber submitted his invoices monthly. With each one he enclosed a letter from his solicitor (lawyer) threatening legal action if the bill was not paid within twenty-eight days. This letter cost him £50 a time, a charge which, naturally, he added to the big firm's bill. From then on, no problem. Bills paid on time, tradesman happy.

Maybe agents should do the same?

Meanwhile, of course, if you want to know what big-time publishers really think about writers (ungrateful little sods, apparently) then Ron Hogan can give you an example.

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Gee whiz. Ron Hogan (a busy feller) also points out that Marion Boyars has just published a book about book blogs. (Marion Boyars? Into books about the internet?) Anyway, no one's ever contacted me about it, so I suppose I ain't in it. Not, frankly that it would trouble me. Nothing Marion Boyars ever did in the past was ever of any interest to me. Far too highbrow. The lady herself is deceased by the way, but she had her admirers.

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Cory Doctorow, at Locus Online, provides a very useful and succinct account of copyright in general and the Creative Commons licences in particular.

I can't emphasise too much that it is important for anyone reading this blog to read Doctorow's piece (or something like it, if you can find it). It contains information which is essential if you care about books and publishing, not to mention the other media.

In passing, you will also discover why anyone who knows anything about copyright is obliged to spit every time they speak the word 'Disney'.

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Dust Jacket Review is a newly launched resource for book lovers. It will take some time to explore this site, I feel, and you need to sign up to gain access to the full range of features. There are, I am told, some sixty of my own book reviews on the site somewhere (the GOB is issued under a Creative Commons licence).

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Not everyone is happy about the free use of their work, especially if no one asks their permission. A number of Welsh writers have taken a dim view of what the National Library of Wales is up to.

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Publishers Lunch rightly finds it intriguing that, in the music biz, some performers are issuing their stuff through specific outlets only. E.g., the Eagles' latest album via Walmart, Paul McCartney through Starbucks. Lessee now.... books? It's a question of when, not if, suggests PL.

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Crumbs. PL also reports that you can order a one-off book in which your child features in adventures with established media characters.

I don't know who wrote the press release, and if they were working for me I'd sack them, but eventually we get to the following: 'In days, the child will receive a timeless, one-of-a-kind story where they appear on every page of an exciting travel adventure with Dora, helping to save Boots the monkey.'

Whatever else may be said, it seems to me that this operation requires some seriously well organised firms to collaborate with some reasonably clued-up parents, digitally speaking, and it will be interesting to see if it catches on.

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Ah, now here is the kind of man I really have time for. A guy who gets seriously pissed off by the enthusiasm, energy and drive of all them wannabes. In particular, Peter L. Winkler is grinding his teeth over all this Write a Novel in No Time At All and Get Rich and Happy and Have Fantastic Sex Into the Bargain stuff.

His suggestion: let's have a month in which no one writes anything. There's far too much of it around as it is.

The man has a point.

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Eric is very keen on books and is building up substantial lists of blogs, software, publishers, and more. Several languages available.

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Leslie Hurst commented that John Twelve Hawks's number two book (number one being The Traveller) hasn't made much impression. And my search of the Publishers Marketplace archives (available only to subscribers) reveals that, after July publication, it never got higher than 24 on the New York Times bestseller list. And on most lists it didn't get that high. Which is no surprise to me.

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The Times has an interesting article about ghost-writing. It should be read after, or before, my own essay on the same subject. Subsequently you should be equipped for a new and dazzling career.

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Live in New York? The 20th Annual Independent and Small Press Book Fair takes place on Saturday, December 1st and Sunday, December 2nd, at the New York Center for Independent Publishing at 20 West 44th Street in New York City. Details here.

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Clancy Sigal has recently been awarded west coast PEN's 'lifetime achievement' award. And he was presented with it by Gore Vidal, no less. Now that is impressive.

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Is the net good for writers? That is the question posed by Ten Zen Monkeys, and it would probably take ten or twenty of same to figure it out. Unfortunately the Ten etc piece got up my nose fairly early on and my concentration faded. But I agree with the commenters at the end: let's have more women. (Link from Martin Rundkvist.)

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Samuel Edmonson showed me the Literary Rejections site, where lots of writers go to have a jolly good moan and join the massive crowds of those who have had lots of rejection slips and expect to receive a lot more.

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Yeshua, it seems, is the Jewish name for Jesus, as in Jesus of Nazareth, and Lulu.com alone has lots of books about him. One of these is by Edmund Jonah, who has chosen to write up the life of Jesus in the form of a novel.

Edmund has an interesting background in that he was a Jew who was educated by Jesuits. Like many another author, Edmund had two agents who enthusiastically offered his novel around, but without success; hence Lulu.

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Lapham's Quarterly is a new (US) history magazine started by Lewis Lapham, who was editor of Harper's for many years. The first issue is just out. Entitled 'States of War,' it includes both historical texts (ranging from Thucydides to Jessica Lynch) and contemporary commentary from Fritz Stern, Caleb Carr, Tom Holland, and John Mueller. By connecting the present with the past, the magazine hopes to place current political events within the context of their historical antecedents.

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Just out, Mary Scriver's biography of her former husband, Bob Scriver: sculptor in bronze in the Beaux Arts style.

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What is the Oxford dictionary's word of the year? You'll never guess.

Copyright gets complicateder

Last Friday's Times carried a letter from Professor J.A.L. Sterling, who is involved with the Intellectual Property Research Institute at the University of London.

The Prof makes the point that many unpublished works by long-dead writers are still in copyright -- even though their published stuff is out of copyright. Since the guy is dead, obtaining permission to use or print such works may be difficult if not impossible. (I have certainly found this to be true in relation to photographers; in many instances it is literally impossible to trace their heirs and successors.) Furthermore, the law of copyright will vary from country to country, so that the person who is entitled to give permission for use in one country may not be the person entitled to do so in another country. What fun!

'In the digital era,' says the Prof, 'international copyright becomes an Augean stable requiring a jurisprudential Hercules to bring order out of chaos.'

Well, at least one group of people are trying to improve the situation somewhat. Over on the Creative Commons blog, Lawrence Lessig provides part two of a description of an initiative which will be 'critical to the ecology of creativity generally.' It's not easy stuff to get your head round, but it is clearly vital.

Friday again -- where does the time go?

Cory Doctorow on copyright

It is a circumstance more than once remarked upon here that the best indicator of a truly amateur (and probably truly awful ) writer is a manuscript which bears on the cover, in large letters, a statement along the following lines: PROTECTED BY COPYRIGHT THROUGHOUT THE ENTIRE KNOWN UNIVERSE AND IN ANY UNIVERSE WHICH MAY HEREAFTER BE DISCOVERED. YOU ARE ALLOWED TO READ WORK THIS ONLY WITH MY WRITTEN PERMISSION. YOU CAN'T PHOTOCOPY IT. AND IF YOU TRY TO POST IT ON THE INTERNET I WILL SEND MY AUNTIE MILDRED ROUND TO DUFF YOU UP. AND THEN YOU'LL BE SORRY. Or words to that effect.

That situation arises because there are very few people around with any common sense, and even fewer who combine common sense with a knowledge of copyright law. Cory Doctorow is one of the few who have both, and you can read his latest essay on the subject in Locus.

Meanwhile, there's some more common sense on the question of copyright in music from Valleywag. (Link from the Creative Commons blog.)

Simon Jenkins's new book

Simon Jenkins (actually he's Sir Simon, having been knighted in 2004) is one of my favourite journalists. He's a former editor of the Times, which is about as distinguished as you can get in journalism, and until recently he used to write fairly regular think-pieces for the Times, though I gather he is now officially signed up to the Guardian.

Jenkins is also the author of quite a few books, such as England's Thousand Best Churches. And his latest is due out from Penguin (Allen Lane) in October. Its title is Thatcher and Sons: a Revolution in Three Acts.

Here's a snatch of the advance publicity:

[Mrs Thatcher's] premiership transformed not just her country, but the nature of democratic leadership. By 2006, Britain was the most heavily regulated country in the non-socialist world, with every aspect of public activity relentlessly audited, and power more rigorously centralized than in any other mature democracy. The great instrument of centralization and audit was the Treasury, whose Thatcherite policies were carried to their apogee by the most controlling Chancellor of modern times, Gordon Brown.

Pithy, passionate and polemical, Simon Jenkins's book explains how we have come to be where we are - prosperous but perplexed, economically liberated and spoilt for 'choice', but less and less equal, infantilized by targets, overwhelmed by bureaucracy and frustrated by a politics which values spin over substance.

Yup. Sounds about right to me.

I shall be surprised if Jenkins's book isn't serialised somewhere, shortly before publication.

A bad day at the office

M.J. Rose, at Buzz, Balls & Hype, points to a short cartoon on YouTube and suggests that yes, some days the business of being a writer does feel like that.

What's this with the 'some days' though, M.J.? It's surely every day.

Also on YouTube

While you're hanging around YouTube, with all those asbos and hoodies, you might do well to look at something with a bit of culcha. Try the witty and really very interesting 'TV programme' about the typeface Cooper Black. (Link from Mr Maud at Maud Newton.)

Hanging is too good for them

Yesterday Blogger was being a real pain again, losing half an hour's work for me, and I sat there muttering how one day I would swing for that bloody Blogger.

And that got me to thinking, or rather wondering, how many of the modern generation understand the origins of that expression, 'I'll swing for' something?

At the risk of stating the obvious, it derives from the old English practice of hanging criminals from the neck until dead.

And that got me thinking about hanging in general. I was led, naturally, to remember the most famous English hangman of them all, Albert Pierrepoint, but I wrote about him not so long ago, so I won't repeat that here.

And the next thought, in this idle chain of linkages, was my memory of what Bernard Levin had to say about a famous hanging judge, Lord Goddard, who ended his career as the Lord Chief Justice.

Almost immediately after Goddard's death, Levin wrote an article about Goddard which was a pretty brutal denunciation of the man. So far I have not been able to trace an online copy of the article, but there are plenty of web references to it. It appeared in 1971, and I haven't read it since, but my memory tells me that Levin accused the Judge of deriving sadistic pleasure from sentencing a man to death. He also reported that the Judge liked nothing better than a dirty story, the coarser the better, and that his taste in stories was for those in which women were demeaned and humiliated.

Anyway, whatever the details, the Levin article enraged the legal establishment, and soon afterwards, when Levin applied to join the Garrick Club, he was blackballed. (For an explanation of blackballed, see here.)

Low Winter Sun

These days I am hard put to find anything that I really want to watch on television, so I tend to study the printed programme rather carefully. Yesterday I noticed that the Times thought that there was some terrific acting on show in Low Winter Sun, so I gave it a try -- Channel 4, 9 p.m.

Wow. LWS is a modern crime drama, set in Edinburgh, and it carries a warning at the beginning about violence and strong language, both fully justified. However, this is not sensation for the sake of sensation.

It turned out that I was watching part II of a two-part drama. What with that, the thick Scottish accents, and me being deaf, I was not able to absorb the finer points of the plot -- but never mind, it was gripping throughout.

What we have here is absolutely top class UK TV drama. I have the impression that Channel 4 have been getting a bit of stick recently, but they've redeemed themselves with this one; though I see that it was made by the indie company Tiger Aspect in association with BBC America, whatever that is. I gather it means that LWS will end up on American screens.

Chief plaudits must go to the actors, particularly Mark Strong. He was in The Long Firm, you may recall, and as a friend of mine (now dead, alas) said at the time, when he's on the screen you can't take your eyes off him. Another eye-grabber is Neve McIntosh, who was in Bodies; and John Sessions, playing an unusual role for him. And so on.

The photography and direction are as good as you will see, and the writing, by Simon Donald, was of course excellent, otherwise the whole thing would never have held together.

You can get Low Winter Sun on DVD, or you can watch/record it in the UK on More 4, from 9.15 p.m. to just after midnight, tomorrow, Saturday 23 September.

Unremarked bestsellers

The Guardian publishes a light-hearted reminder that the books which sell best, year in and year out, are the ones with a low profile that most people ignore, take for granted, or never even know about. (Link from booktrade.info.)

Fractured Veil

Gregory Connors has published his novel Fractured Veil on Lulu, where you can find a brief description of it. There is also a substantial chunk available as a preview, so you can make your own mind up, and there is a lot more on Gregory's blog.

This novel is not one that I personally can feel wildly enthusiastic about, but the last time I said that about a similar book it got noticed by a New York publisher, who bought the rights, so there you go.

The origin of speech

There's a new blog on the block about the origins of speech. This is an academic subject, but it is, perhaps, more interesting than it sounds, and it might not be a bad idea for writers to have some idea of what the scholars are thinking.

Peter Pan: prequels, sequels, copyright, and confusion

The Independent has a modest article about the complications surrounding copyright in J.M. Barrie's famous children's book, Peter Pan. (Link from booktrade.info.)

Complications arise from the fact that, in his will, Barrie left the copyright of Peter Pan to the Great Ormond Street Hospital for Sick Children, in London, intending that the Hospital should benefit from the considerable income generated by that famous (if bizarre) work. And the complications which ensue from that simple gesture of goodwill have been touched upon here several times before, for instance on 12 April 2005.

The situation today is that a book was published in the US, in 2004 according to Amazon.com, which was a prequel to Peter Pan and has sold more than 500,000 copies. Its title is Peter and the Starcatchers. This book, please note, was published by the mighty and ruthless Disney, who in my view are just about the only people who can afford the massive lawyers' fees needed to deal with this issue. Disney have taken the view, based on their interpretation of US copyright law, that they didn't need Ormond Street's permission for their book and that the Hospital isn't entitled to any royalty; so they ain't paying any.

Meanwhile, dear old Ormond Street is planning its own exploitation of the rich Peter Pan seam. A while back they commissioned the award-winning children's author Geraldine McCaughrean, after a worldwide competition, to write a sequel to the Barrie book. The sequel, whose title will be unveiled this week, will be published this year to raise fresh funds for the Hospital. But it will come into competition from the Disney opus. And the Hospital is not pleased.

The result of all this confusion is that the two authors of Peter and the Starcatchers, Dave Barry and Ridley Pearson, evidently feel themselves caught in a moral dilemma, and are talking about giving a concert in London to raise funds for the Hospital.

What a mess. But a lovely, lovely earner for the lawyers. They must go down on their knees and bless the worldwide legislators who have created this hodge-podge of jurisdictions which seldom seem to agree on who owns what and for how long.

I must confess to having a personal interest in this matter. About ten years ago, with Ormond Street's knowledge and permission (we struck a deal on royalties), I too wrote a prequel to Peter Pan. It took the form of a stage play entitled Hook in Bath, and it told the story of how James Hook first became a pirate. The only Pan characters used in it were Hook and his mate, Smee. Sadly, however, I have never been able to persuade a producer to put the play on, and therefore income, for both me and the Hospital, stands at zero. However, if there are any producers out there who are looking for a damn good play...

If you want to read an article by someone who has done far more work on this issue than I have, try reading section 8 of the Wikipedia entry on Peter Pan.

If you want to read the Hospital's perspective on the matter, they have a page on their web site.

The moral of all this, imho, is that you shouldn't waste your time trying to write sequels and prequels. If you want to know my reasons in detail, I went on a good deal about the problems which can arise from recycling other people's characters in my piece of 8 July 2005.

Copyfight

Ebookad.com is a useful source of ebooks on all sorts of subjects, and it also provides links to various news items about the ebook world. One such link recently was to a piece on the BBC news site about copyright and the 'copyfight'.

Those of you who depend on copyright for your living, or part of it, need to be aware of what is going on in this area. The BBC article won't provide any definitive answers, but it does provide further food for thought on an extremely complicated issue. Getting to grips with copyright law in your home nation is difficult enough, but throw in the complications of international variations and headaches will ensue.

My own position, for better or for worse, is to produce the work and not fuss too much about whether anyone is going to rip it off. Frankly, I am not likely to produce something that is going to make a fortune for anyone, so maintaining a grip of steel on my copyright is beside the point.

In fact, in relation to my latest essay, On the Survival of Rats in the Slush Pile, I am making it available free. The section of the essay which is headed Notes to Readers makes it clear that you can do pretty much what you like with it -- short of passing it off as your own work.

In other words, you can print the essay out to read it, you can photocopy it for distribution to your students (if that applies), you can email the PDF to a friend, and so forth. If you are smart enough to figure out how to make any money out of the damn thing, please let me know, because I would like to know too. Other than that, feel free.

Dangerous digits?

Google, it seems, has a Cunning Plan. It wants to digitise all the information in the world -- or at any rate such of it as is contained in books -- and make it universally available.

There is a department of Google known as Google Print, which is hard at work bringing about this state of affairs (which you are probably right in thinking will take some time). But a voice of caution has been raised.

In Publishing News (via booktrade.info), Nigel Newton, the CEO of Bloomsbury, is quoted as issuing a warning to the UK Publishers Association conference. He fears that mass digitisation might lead to people reading things for free, and copying books wholesale, and printing them off at home. And all like that.

Oh my God! Clutches heart and staggers backwards. How will humanity survive? Or, more specifically, how will folk like Nigel Newton survive?

Mark Le Fanu, head man of the UK Society of Authors, is also worried, and expresses doubts as to whether the standard publisher's contract actually gives publishers the right to allow the full text of their authors' books to be digitised.

Well, this one will run and run. Personally I agree with Lawrence Lessig, professor of law at Stanford Law School. Lessig has said somewhere that, while it is true that everything written is governed by copyright, it is also true that 90% of copyright material (at least) has the same commercial value as a pitcher of warm spit. (Lessig didn't actually use the warm spit simile; I did. I borrowed it from an old-time American politician of decades ago. Lyndon Johnson once sought advice from the old-timer as to whether he should seek the Vice Presidency. 'Lyndon,' said the old-timer, 'the Vice Presidency ain't worth...' Mind you, Lyndon took the VP and ended up President. But I digress.)

Yes, if you are the publisher of a textbook on chemistry which is required reading in 1400 colleges and universities, you will wish to prevent piracy. And ditto if you publish Harry Potter, as Nigel Newton does. Some of us, however (Lessig for one), believe in posting free copies of our stuff on the internet, for several reasons.

First, it gets the information to the people who need it (if they bother to look), and why write something if you don't want readers? And second, if you've written something which proves really valuable to a particular reader, he is much more likely to go out and buy a copy of the book which he has already dipped into for free. It seems to me that, by and large, if you are likely to refer to a book again, or to re-read the entire thing, you need a printed copy rather than a digital file.

Michael Cader, author of the invaluable Publishers Lunch newsletter, also noticed the Newton speech, and found it distressingly negative and backward-looking. Here's an extract:

Of course we find it much more devastating that the music industry didn't learn from Napster--closed in 2001--that fans wanted digital music and had no legitimate, well-run source to turn to as music companies sat on the sidelines. Another company from outside their industry, Apple, had to prove the lesson again. As a result, sales of the device (iPod) are exponentially larger than revenues from the downloads, Apple has significant control over the marketplace, and traditional higher-priced "albums" are being forsaken for smaller slices--individual songs. The "music industry" has no choice but to follow, consolidating companies and laying off employees.

There are many prudent and even cautious ways of approaching Google Print and the unstoppable content explosion of the Internet, but sitting on the sidelines and declaring Pandora's Box will be the most devastating of all. We just keep hearing Tom Peters' line from the other week: "If you don't like change, you'll like irrelevance even less."

Meanwhile, over at Cornell University, Professor Tarleton Gillespie has been giving the students a clear, straightforward explanation of some of the issues. Big companies, he suggests, are trying to use technology, rather than the law, to safeguard their sources of income. In other words, digital rights management (DRM) is being used to control who may read, watch, or listen to what, and for what price. The DRM designers are 'welding the hood shut.'

This circumstance, plus a variety of similar hassles, have infuriated quite a high proportion music lovers. OK, so the music business has caught on, at last, to the fact that people want to be able to download stuff, but the companies concerned still have some way to go before they have happy customers. See yesterday's Sunday Times article for details.

Well, I used to mix with students a great deal, and one thing is for sure. If you present a technology student with a 'hood welded shut', or some other technological feature which he finds deeply unsatisfactory, then the first thing that cunning little feller is going to do is figure out a way to unzip the hood, get in there, and get what he wants. And then he will tell all his friends how to do it. So anyone in commerce who thinks that DRM is the answer to anything is in for a nasty shock.

As I say, you ain't heard the last of this one. I don't pretend to be able to predict the future -- ten year ago, who could have predicted what we have today? But I do think that Nigel Newton and those who think like him are being a trifle Luddite.

By the way, if you are tewwibly tewwibly concerned about the protection of your precious stuff from those who would copy it and pass it on, just remember that publishers have a rough rule of thumb. Some manuscripts are submitted to them with a notice on the front cover which says: COPYRIGHT. ALL RIGHTS RESERVED. THIS MS MUST NOT BE XEROXED. And so forth.

The publishers' rule of thumb is this: the bigger and more prominent the warning about copyright, the bigger the heap of crap the ms is likely to be.