Posts Tagged ‘Licensing’

Get it in Writing!

Intellectual property litigation is an extremely tough nut to crack.  If ever you consult an attorney for a copyright infringement suit and he tells you that he’ll definitely win the case for you, kindly thank him, pack your bags, walk out, rip his business card up and run far far away.  IP infringement suits are, at best, a coin flip in federal court.  There are a staggering amount of procedural and factual hurdles involved with successfully litigating an IP claim, often coming down to who has the better paper trail.  Florida photographer Todd Latimer is presently learning this the hard way, as his suit against motorcycle manufacturer Kawasaki and magazine publisher Hachette works its way from the U.S. District Court for the Middle District of Florida to the U.S. Court of Appeals for the Eleventh Circuit and back again.

As Photo District News’s PDNPulse blog expains, the case stems from a handshake agreement between Latimer and a Florida motorcycle shop named Roaring Toyz.  The  shop was tasked with customizing two pre-release Kawasaki motorcycles for debut at an upcoming trade show.  Kawasaki requested photos of the bikes for a pre-show press conference.  When Kawasaki expressed its discontent with digicam snaps taken by shop employees, the shop called Latimer for a last minute gig shooting the bikes.  Latimer got the shoot done overnight. The photos were shipped to Vegas and distributed in the press release’s press packet and subsequently ended up in an issue of Hachette’s Cycle World magazine.  Latimer sued, claiming that the shop had commissioned him for a poster that Kawasaki would display at the trade show, and not for magazine or press pack use.  Roaring Toyz, of course, says otherwise.

Here’s where the fun begins.  Since no written contract existed and the few emails that exist were vague at best, the District Court threw out Latimer’s claims on the grounds that he had given an implied license to Kawasaki and that Hachette’s images, in light of the license, were fair use.

What?  Seriously?  Really?

Latimer never dealt with Kawasaki directly, so to award Kawasaki a blanket license for use and further licensing of Latimer’s photos based on a handshake with a third party is kind of absurd.  The Eleventh Circuit agreed, holding that while a license was granted to Kawasaki, a jury trial is required to discern just what scope that license entailed.  As for fair use, the District Court awarded summary judgment without Hachette even raising a fair use defense.  Fair use is an extremely complicated affirmative defense on which the burden of proof rests with the party claiming the defense.  Generally, if the defense isn’t raised, it’s considered waived.  Apparently not in Florida though.  The Eleventh Circuit remanded, however.

The bottom line is, get your agreements in writing.  While it’s most prudent to go through the motions and see your attorney and get a proper contract written up, a simple email confirming the terms of your freelance gig can save you from a world of trouble down the line.  Misunderstandings are more common than any of us want to admit, and it doesn’t take a ton of work to cover your rear end in the grand scheme.


Questlove Explains TV Music Licensing

Ahmir “Questlove” Thompson is the drummer and bandleader of the hip-hop group the Roots, currently on TV five nights a week as the house band for Late Night with Jimmy Fallon on NBC.

Playing in a band that must perform live music on television for a huge audience every night has given Questlove some inside knowledge about the complicated process of arranging rights clearance for the songs the Roots play as personalized “walk-on music” to introduce celebrity guests. As you might expect, playing even a few seconds of someone else’s song on network television can be quite expensive. (In a February 2009 interview, Questlove explained that part of the reason the Roots were hired was because they could write original music for walk-ons, allowing NBC to save on licensing fees.)

Questlove recently took to Twitlonger to explain just how expensive these things can get, as well as letting me know in advance what my walk-on song will be if I ever get on Late Night:

one day i gave my last minute clearance list in before a show only to be told mid show i couldn’t use “cry me a river” for joan rivers because justin timberlake charged an enormous rate. i “think” he is the only non dead/non rock and roll hall of famer to charge this strange rate….which kills me because the second we get any Richard on the show i wont even be allowed to do “Dick In A Box”…

Read the rest of Questlove’s post here.


The Most Unkind(l)est Cut of All: Amazon Gets Gangsta with McMillan

NOTE: This story continues to develop by the hour. Check the end of this blog entry for updates.

Last this past week, a number of authors were surprised to discover their books gone from Amazon’s website. Quite a few authors, in fact: it turns out that Amazon had pulled all of the publishing giant McMillan’s books. (McMillan’s many imprints include Farrar, Straus & Giroux and Henry Holt.)

Why? Because McMillan had just presented Amazon with new licensing and pricing demands. According to Engadget, McMillan’s new proposed deal

gives retailers a 30% commission and sets the price for each book individually: digital editions of most adult trade books will be priced from $5.99 to $14.99 while first releases will “almost always” hit the electronic shelves day on date with the physical hardcover release and be priced between $12.99 and $14.99 — pricing that will be dynamic over time.

Amazon sells e-books for its Kindle device for $9.99 and intends to hold fast to the $9.99 price point — so fast that its response to McMillan’s “hey, how about these higher prices?” was “hey, how about we kick you off our website?”

Author Charlie Stross explains that Amazon expects a bigger piece of the supply chain for e-publishing. Amazon currently licenses the digital rights for books from publishers and produces their own e-editions for the Kindle, for which they set their own prices. The terms of these deals are always the same, and quite restrictive, and, as we pointed out last Tuesday in discussing Amazon’s new licensing terms, this approach marginalizes publishers. McMillan, on the other hand, essentially wants to produce its own e-books and sell them to Amazon just like it would sell them physical books, with a higher list price already attached, an approach that keeps publishers in control. Amazon doesn’t like this approach, but unsurprisingly, Apple, which is trying to round up e-book content for its new iPad, is on board with the publisher-centric model.

McMillan is such a big publisher that if it obtains leverage with Amazon, other publishers will try the same thing, because Amazon, despite their apparent goal of taking over the publishing industry, still needs books to sell right now. As a result, Amazon is playing serious hardball, betting that McMillan can’t afford to give up virtual shelf space at the world’s #1 book retailer just to get better deal terms for its e-books. According to Amazon, publishing on the Kindle is an offer publishers can’t refuse.

Over at BoingBoing, author Cory Doctorow, an outspoken advocate of a more liberal approach to copyright who at times likes to give his own books away and as a result has butted heads with Amazon after requesting alternative licensing schemes for his books, points out that if e-book sellers would simply allow publishers to choose digital rights management (DRM) protection for their titles, rather than having it forced upon them, users could switch e-book platforms without losing access to their own e-libraries, allowing publishers to choose between e-reader sellers and allowing e-reader sellers to more easily steal customers from each other.

Amazon, of course, pursued the DRM-free route in order to break into the MP3 business against Apple’s iTunes store, since Apple had the competitive advantage in music. Amazon, on the other hand, has the competitive advantage in bookselling, so it’s hoping to lock e-books up inside its walled garden for as long as it can get away with it.

Doctorow’s DRM-optional approach is a nice idea, but Doctorow is presumably well aware that the market for e-books, like the market for cellular phone service, is an oligopoly. Oligopolists like Amazon hold so much power in the market already that they have no reason to throw the doors open to more competition without good reason. A DRM-optional approach might be pursued by some upstart in the market with little to lose, but not Amazon.

Doctorow also points out that $15 is a damn high price for a e-book whose cost of reproduction is basically zero. Our own sense is that consumers have a strong intuition regarding the lower reproduction cost of any digital product with a physical analogue, and expect the digital version to be much cheaper, even if most of the production cost of the product is in the labor used to produce it (true of both books and music). If Amazon doesn’t back McMillan down, we wish McMillian good luck with its first round of top-shelf $15 e-books, which we hope will be so outstandingly compelling that consumers won’t wince even a little at the price.

EDIT: It’s looking like Amazon will cave to McMillan, an interesting about-face given the degree of the threat Amazon posed to the publishing conglomerate. I guess Amazon needed books to sell as much as McMillan needed a place to sell them?