Writer's Bloc
My SFWA Bulletin Column

The Public Domain Enhancement Act

from The SFWA Bulletin #161, Spring 2004


H. R. 2601

    Last summer's decision in Eldred v Ashcroft that Congress had the power to extend copyrights for a finite period didn't end the matter. As noted in the Nov-Dec 2003 SCBWI Bulletin, Eric Eldred (enlisting noted copyright activist Prof. Laurence Lessig) successfully lobbied Congress for a bill that would change copyright terms yet again. Congresswoman Zoe Lofgren introduced H. R. 2601 – the Public Domain Enhancement Act.

    The bill is so named because it doesn't exactly reduce the current length of copyright as much as compel creators to actively "maintain in force" their works once they have been in copyright 50 years. This would apply to works currently under copyright but in existence for more than 50 years as well as to new works. The maintenance fee would be $1.00 (one dollar) and allow ten more years of enforcement. This could be continued every 10 years after that until the copyright period ends.

    If no fee is paid within a six-month grace period after the 50 year date (December 31, 2004 for earlier works), copyright ends and the work falls into the public domain. In short, every work copyrighted between 1923 and 1954 would have to be submitted to the Copyright Office in the first six months of 2005 or lose its copyright status. Getting many older works into the public domain appears to be the underlying intent of the bill.

    Although not the exact wording, the bill's creators claim that it would produce a searchable database so that everyone could quickly and easily determine whether a work remained in copyright.

    The complete text of the bill is available by entering "H. R. 2601" into the Bill Number box at: http://thomas.loc.gov/. The bill is currently in committee.

    As always, concerned writers on either side are urged to contact their representatives.

Courts and Celebrities - Reprised

    Last issue I talked in detail about the "transformative" test the California Supreme Court applied to the use of celebrity names and likenesses. The Missouri Supreme Court, however, has its own ideas on the subject, as reported by Lisa Dorfman in the always informative Legal Watch column of the Authors Guild Bulletin, in its Winter 2004 issue.

    Todd McFarlane (who is not having a good legal year - further details no doubt in an upcoming issue's Legal Watch) placed a resurrected CIA assassin as the title character in his comic book Spawn. The hero had been killed by a violent Mafioso by the name of Anthony "Tony Twist" Twistelli. This caught the attention of retired St. Louis Blues hockey player Anthony "Tony" Twist. He and his attorneys also made note of the line of hockey paraphernalia that avowed fan McFarland marketed bearing the Spawn logo.

    Several court battles later, Dorfman wrote, "The Missouri Supreme Court did reverse the trial court, focusing on the commercial advantage sought by the defendants in using Twist's name. The court held that Twist had demonstrated an intent on the part of the author to create the impression that Twist was 'somehow associated with' the book, including the marketing of the work to hockey fans…"

    The court not only rejected the "transformative" test but also the "relatedness" test used by two federal circuit courts. "It dismissed any expressive aspect of the fictional Anthony 'Tony Twist' Twistelli as not 'a parody or other expressive content or a fictionalized account of the real Twist' and ruled that it therefore 'has very little literary value compared to its commercial value.' The use of Twist's name was 'a ploy to sell comic books and related expression rather than an artistic or literary expression.'"

    If higher courts follow this logic, the implications for writers are huge. Writers and artists may be allowed to use celebrity names and likeness only to parody (or provide "expressive comment"). Dorfman concluded, "This reasoning runs the risk of characterizing the majority of works of art and literature – most of which their creators intend to sell – as commercial speech, thereby reducing the protections normally accorded them."

    Can you stand one more twist on the tale? In that same column, Margo Karasek reported on yet another character-driven lawsuit, this one decided by the New York State Supreme Court.

    Daria Carter-Clark sued Joe Klein and his publisher, Random House, claiming defamation because of similarities between her and the librarian character in Klein's political bestseller Primary Colors. Moreover, she said Random House was negligent because it didn't check prior to publication whether the character was a real and recognizable person.

    The court threw out both claims. Any similarities were "inadequate," the court said. Superficial traits in common are not enough to prove that "a reader familiar with the plaintiff would have no trouble linking her to the character," Karasek reported. And publishers may rely on the writer without conducting their own investigations, which would "likely create a prohibitory economic impediment to the book publishing industry," according to the court.

    Karasek concluded, "Any plaintiff accusing a publisher of libel in connection with a work of fiction, therefore, will be held to a high standard of proof."

Used Book Buyers – A Survey

    Ipsos Book Trends, a division of Ipsos-Insight, has now added tracking used book sales to its long-term study of overall book sales, Stephanie Bond reported in her Jungle Beat column in the March 2004 RWR. They haven't been in the business long enough to garner deep trends, but the 2002 Consumer Research Study on Book Purchasing, published by the Book Industry Study Group in 2003, contained these factoids:

    • Both new and used book buyers are generally older, ages 40-60+
    • Lower-income purchasers are more likely to buy books used
    • Avid buyers are more likely to buy used books than occasional buyers
    • These heavy buyers go to used bookstores, used book sites on the Internet, or charity book sales for 15% of their book purchases
    • Used books are typically discounted 50-60% off cover price
    • About two-thirds of purchases of used books are impulse buys
    • Most popular used book category: general fiction, followed by the genres of mystery, romance, and science fiction

    This study and much more information about the book industry can be read or purchased or subscribed to at Ipsos-Insight's web site: www.ipsos-insight.com/consumer/publications/books/.

Booksellers Join Challenge To Michigan Censorship Law

    Thanks also to Stephanie's column for alerting me to this Press Release, which, after the brouhaha about Asimovs' subscriptions being inadvertently marketed to schools, takes on extra meaning for f&sf writers seeking a wider range of ages in their audience.

      DETROIT, Michigan, Jan. 7, 2004–A coalition of booksellers, publishers and magazine distributors filed a federal lawsuit here yesterday challenging the constitutionality of a new Michigan law that makes it a crime to allow a minor to examine a book that is “harmful to minors.” “This law would drastically alter the character of bookstores,” Chris Finan, president of the American Booksellers Foundation for Free Expression (ABFFE), said. “Today, bookstores are open, welcoming places that invite their customers to browse and explore the wide range of works that are available to them. This law threatens the freedom to browse freely.”

    It is already illegal to sell “harmful” material to minors in Michigan and most other states. But the new Michigan law goes beyond the law of any other state by requiring booksellers to prevent any possibility that a minor can examine “harmful” works, including novels and works of non-fiction that do not contain pictures. Violations are punishable by up to two years in jail and a fine of up to $10,000. The measure was signed into law by Governor Jennifer Granholm on November 5 and went into effect on January 1. Plaintiffs yesterday filed a motion in federal district court seeking a preliminary injunction to block enforcement of the law.

    Finan said the new law is unconstitutional because it would make it difficult for adults and older minors to obtain books, magazines and music that they have a First Amendment right to purchase. “If booksellers can be sent to jail for two years because a kid picks up the wrong book, they will have no choice but to protect themselves by rigidly restricting what their customers can see,” he said. Booksellers will either have to segregate “harmful” material in an “adults only” section or to wrap it in plastic. In addition, they will be forced to impose these restrictions on books and other materials that are “harmful” to the youngest minors, including romance novels, works relating to sexual education and health, photography and art books, and classic literary texts.

    In addition to ABFFE, the bookseller’s voice in the fight against censorship, the plaintiffs are the Great Lakes Booksellers Association, six bookstores, the Association of American Publishers, the Comic Book Legal Defense Fund, the Freedom to Read Foundation, and the International Periodical Distributors Association.

    The plaintiffs are represented by Herschel P. Fink of Honigman Miller Schwartz & Cohn LLP, in Detroit, and Michael A. Bamberger of Sonnenschein Nath and Rosenthal in New York. For further information, contact: Chris Finan, American Booksellers Foundation for Free Expression, (212) 587-4025.

Powerful! Arrogant! Turgid! The Book Review Journals

    Booklist. Kirkus Reviews. Library Journal. Publishers Weekly.

    Adelle Waldman's exegesis on "The Powers That Be" was republished from Slate in the Winter 2004 Authors Guild Bulletin. These dominant insider book reviewing publications not only compete against one another to influence mass buyers, she reported, but they are being forced to change tone and content in an Internet age.

    Start with the doyen, Publishers Weekly. PW covers 10,000 books a year, including on its website. Its reviews are anonymous and mostly by freelancers. Heavy on plot summaries, low on bile, a starred review is a promotional plus.

    With only about 5,000 subscribers to PWs 26,000, Kirkus uses noisy opinion to make its mark. Reviewers are again anonymous freelancers, but a list of contributors in each issue makes the guessing fun. The reviewers of about 6,000 books in its 24 yearly issues have far more leeway in pounding out negative reviews.

    For better notices, turn to the American Library Association's Booklist. Waldman's take on them was that they "Find something positive to say, and proceed gently from there." A 60/40 mix of freelance and in-house writers, the reviews are signed. Booklist appears biweekly during the school year and monthly over the summer break. Its 8,000 reviews also include 1,000 audiovisual materials.

    It too has a direct competitor: Library Journal, published by PW's parent Reed Business Information. It uses signed reviews by librarians. With 20 yearly issues, it has a similar publication schedule to Booklist, managing to squeeze in about 7,500 reviews.

    All these publications used to aim their reviews at booksellers and/or librarians but the Internet – and Amazon.com in particular – helped to change that. Amazon contracted with Kirkus to put its reviews up on its web pages and that gave them both a particularly obnoxious reputation among authors. Today it is easy to find the other three magazines broadly represented on Amazon's pages but my search of several dozen books in various categories failed to find even one Kirkus review.

    What happened? Waldman noted that "Trade magazines aim to predict a book's fate in the real world." A bad review on a forthcoming bestseller may be an accurate summary of writing ability, but it may keep wanted books from reaching the hands of readers. Besides, more people than just insiders now see these reviews. Kirkus, she said, has actually become less "acerbic", while PW has become more "spirited".

    With more interaction among booksellers – and the independents have their own monthly list, Book Sense 76 – the need for gatekeepers has become less important. The anonymous, often-retired librarians and schoolteachers who are the main reviewers may be harder-pressed to predict upcoming cultural trends. And even 10,000 reviews are an ever-smaller fraction of what is being published.

SF Writers in the Mainstream News

    From the Winter 2004 Authors Guild Bulletin. James Sallis, who is now book columnist for the Boston Globe, wrote in eulogy: “John Sladek was the high priest of something else, the clown in the choir, the valet who takes your keys to the Rolls and brings you an ice cream truck. He was a wonderfully funny and engaging writer, a satirist of the first rank, and he deserves to be remembered." Sladek is quoted as saying, “Science fiction, it seems to me, constitutes the right brain hemisphere of contemporary fiction (the dreaming part). My work is probably somewhere near the lobotomy scars.” Sallis himself was called a “literary chameleon,” by Paula L. Woods in the Los Angeles Times Book Review.

    Less enthralled by the label of science fiction writer is Jonathan Lethem. The New York Times may have noted that “Critics have described Mr. Lethem as something of a genre bender, a writer taking the conventions of hard-boiled detective novels, westerns and science fiction and stitching them together with a stylized, acrobatic prose.” But Lethem says, “I’ve never been much related to the idea of science fiction, or crime writing or any of the other fixed genres people occasionally wish to fit me into – they don’t seem to me to describe what I’m up to.”

Oh, My Aching Back

    Sitting here, hunched over the keyboard, a pillow stuffed in the small of my back, I'm in pain: mostly in embarrassment because Coeli Carr's "New Year, New Chair" in the January 2004 ASJA Monthly reminded me of all the things I'm doing wrong. And what I – and you – should do right.

    • Get up every 20-30 minutes even if you have to set a timer to do so. Carr quoted Andrew Was as saying, "No matter what age you are, sitting for more than 30 minutes at a time without getting up compresses your [vertebral] disk."
    • Was also recommended a chair that gives lumbar support and as many options as possible. No one-size-fits-all.
    • Eleanor Demos, a massage therapist, suggested periodic "perching," sitting just on the edge of a tall stool. "With your feet on the floor, your weight is partially in your seat, and your lumbar spine is not so compressed.
    • And don't bend forward at the waist all the time. That means you, Carper.

Organization, Publication, Address, Web Address

American Society of Journalists and Authors, ASJA Monthly, 1501 Broadway, Suite 302, New York, NY 10036, www.asja.org

Authors Guild, Bulletin, 31 E. 32nd St. 7th Floor, New York, NY 10016, www.authorsguild.org/

Romance Writers of America, Romance Writers’ Report, 16000 Stuebner Airline Dr., Suite 140, Spring, TX 77379, www.rwanational.org

Society of Children’s Book Writers & Illustrators, Bulletin, 8271 Beverly Blvd., Los Angeles, CA 90048, www.scbwi.org

Copyright 2004 by Steve Carper

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