You don’t think about it when you decide to write a novel or produce some other creative work, but legal issues are actually a very important part of being a creative. Because it absolutely matters who owns that creative work when things take off.
And there is no way to put your work out into the world that doesn’t run into legal requirements. Whether that’s trade-publishing contracts, terms of service for listing an ebook on a distributor website like Amazon’s, or just basic copyright and trademark protections which apply to any work you put out there even if it’s something you generated on your home computer and sold on the street corner.
The law is a key part of producing creative work.
Now, you don’t have to be a lawyer to do this stuff, but you should at least understand the basics of what you’re working with. What rights are. How you license them. What trademark is and how that differs from copyright.
And I will tell you right now that relying on a daily observation of how things happen on the internet is a very bad way to do it. Because, oh my gosh, there is so much violation of copyright and trademark that happens every single day on the internet it’s not even funny. Every video shared that uses a popular song without a license to do so. Or uses the key images from some creative property without permission. Or uses the words of one creative work for another without permission.
It’s a mess out there. And it’s such a mess that most of it isn’t stopped in real-time or it’s stopped wholesale regardless of how minor the infraction. A song clip in the background of a video shared to five friends is probably not a big deal, but there are too many people out there who want to take a popular song, put it on top of their own background images, and post it on a site like Youtube so they can get paid advertising fees when people who want to hear that song go looking for it online.
(Which, by the way, is a shitty thing to do because it takes money away from the person who actually created that song. Which means we get less from creatives because they can’t make a living and so go become Uber drivers instead. And that shitty person who took someone else’s work to profit off of it? They can’t replace that because they’re not original creators. They’re just sitting around waiting to exploit the work of others.)
So. Learn copyright. Learn trademark. And respect them. Because if you don’t want people taking your stuff you shouldn’t take theirs.
Okay, so lawsuits. First up is the Bridgerton lawsuit. This is a great, but long, video discussing the whole thing.
Short version. Two women watched the Bridgerton TV show. Were inspired. Wrote songs based on what they saw and heard. Turned it into a musical. Won a Grammy for those songs. Had it performed at the Kennedy Center and came up with a bunch of merchandise to sell. And got sued for copyright and trademark infringement.
I am not a lawyer. I am not deep into this situation. But I will make a few comments.
It is possible to lose a trademark. (Fun fact: You do not have to register a trademark for it to be a trademark of your business. So just because someone is the first to file for a mark does not mean they get it if it was actually in use before that. And you can issue a cease and desist for a mark that isn’t registered, too.)
A trademark is something that distinguishes your product from that of others. It is unique to you. And the way to keep a trademark is to rigorously defend it. If you don’t do that it can become generic (like Kleenex for tissue) and no longer valid. You also have to keep using it.
So I think one misstep here by Netflix was that they probably were not adamant enough early on about the trademark part of this whole mess. Whatever they have trademarked–and I haven’t looked it up–they should have been all over in enforcing.
But that can kill a fandom if every time fans refer to X property improperly you send a nasty note about it. So there’s a balancing act there.
And even though Barlow and Bear appear to have had legal counsel involved, it seems to me the difference between trademark and copyright may be where they went wrong on this.
Because if this was just a trademark issue, then proceeding to use that mark without permission until the brand was so diluted it was no longer just Netflix’s and Julia Quinn’s brand may have gotten them off the hook. If they somehow transformed the Bridgerton brand into some more generic thing, that could, I think (and again, not a lawyer), kill the trademark.
But.
They seem to have missed how copyright works. Because, based on that summary and the lawsuit, they took verbatim wording from the TV show and used it in their songs.
Those words, that way of phrasing things, is copyright protected. I can quote something here and discuss it and that’s considered fair use. But taking those words and using them for commercial benefit, is not.
I think even those little quote books you can buy sometimes have to get permission for all the quotes they use or they need to make sure that the quotes used are so old they’re outside of copyright.
(Which currently is life of the creator + 70 years.)
Now, there is a fair use parody exception to copyright. See here and here for a discussion and the actual rule, but this doesn’t seem to fall under that.
Weird Al Yankovic made a living parodying songs but those songs are real parodies. They take the original lyrics of a song and change them to make a joke out of it.
This musical appears to instead be a derivative work from the little I’ve seen of it.
They probably would have been okay if they’d just done it on TikTok and not made money from it. But they commercialized it which is one of the four key considerations when looking at whether something is considered fair use or not. Also, they may have been okay if Netflix hadn’t also put out a live show that was going to be performed in the same city so a directly competing product.
You could argue that the musical boosted sales of the TV show but that would still be pretty dicey IMO and using the exact words was a really bad idea.
(As a side note I believe the computer books I write fall under fair use because they are educational, they are books or video courses on computer software so can’t be confused with the original product, and, if anything, they expand the market for that product by making it more accessible to users. However, if I had instead tried to consolidate or paraphrase one of the books that had already been written on those subjects, like the Dummies series books, then I would have been infringing that copyright because we’d both be selling books, I’d be taking market share from them with my sales, and if I used their words it would not be in an educational way but instead in an attempt to profit off of their work.)
So. Doesn’t look good for those girls. Especially since the original copyright owner tried to work with them and they said no.
(Before we move on I just want to also note that big companies can mess this up, too. The little IngramSpark pop-up that appears every time you try to publish a book through them gets all of this drastically confused. They ask questions that combine trademark, copyright, and libel/slander rules and then only link to guidance about copyright. They also make it sound like you have to have written permission for things when that’s not actually the legal requirement. Annoys the shit out of me that a company their size can have done something so half-assed. But I digress.)
Anyway.
The other exciting writing-related lawsuit this week has been the DOJ attempt to stop the merger of two of the largest publishers, Penguin Random House and Simon & Schuster.
Publishers Weekly has had staff on-site live-tweeting the trial all week. If you want to get caught up on it, here’s a link.
We currently live in a world where we pay the heavy cost of decreased competition in a number of industries.
Now, you can get economies of scale from larger companies. I mean, the folks at Masterclass put out better content for far less cost than most individuals can.
Right now I can pay $15/month and watch courses from top authors, creatives, and business leaders to my heart’s content. Compare that to the $300-$500 one person might charge when putting out their own material that they recorded in their home office.
So there are definite benefits to being larger. But it also constricts your options. When I can get all of that for $15 a month, I’m far less likely to pay $300 for one little course I may not like.
The DOJ has taken an interesting approach on this one and focused on the biggest authors, arguing that taking two of the biggest publishers and combining them into one will decrease the competitiveness of advances in that portion of the market.
Which we all absolutely know will happen, platitudes from senior execs at those companies that they happily allow their divisions to bid against one another aside.
What’s interesting to me is that this lawsuit may finally indicate a shift away from allowing a small number of companies to control various markets.
We have the rules in place, but what rules get enforced is very politically and philosophically driven. Right now, though, I think we’re seeing the harm of intense consolidation (baby formula anyone) and so maybe that particular pendulum is starting to swing back from the extreme we reached.
And, of course, once again I found myself watching reactions on Twitter and feeling differently from what I saw said there.
So a few comments.
One, it’s in the best interest of these senior executives to be vague and stupid about how things work. Because if they got up there and they really drilled in on all the fine points of how books get marketed and published, they’d lose their big merger.
But they can’t just outright perjure themselves either, so you get “well, it’s all random really” and “we’re not trying to be profitable, we’re just rich people trying to influence the moral course of the country”. (Not actual quotes by the way, but paraphrasing some paraphrasing.)
And to some extent what they’re saying is true. Just this week–and don’t ask me where because I can’t remember–I read an article about how there is a part of literary publishing whose interest is in publishing books that influence the cultural moment. These people have wealth already and don’t need more from their publishing efforts. What they want is to guide what people are talking about. In that situation, profitability is not the goal. Influence is the goal.
Also, I do believe that there is no exact formula for publishing a successful book. I think it was Courtney Milan maybe who talked about it being a weighted dice.
There may be no formula for making a bestseller, but there are certain subjects, ways of presenting a book, and ways of marketing a book that make it far more likely that it will sell in big numbers.
A book that everyone sees in every Barnes & Noble when they walk through the front doors of the store and that is advertised in newsletters and banner ads on all the major ebook retailer sites has a helluva lot better shot at selling than one that’s just listed on Amazon’s website as an ebook.
But there’s still no guarantee that people will click or pick it up. And no guarantee that when they do click or pick it up they’ll like what they see enough to buy it.
On this bestseller idea I will actually go further and say that if tomorrow someone said, “You can have a guaranteed bestseller if you write about X very specific idea”, that even if that were true when they said it, it would no longer be true a year later. Because ten people would have written about X and killed the excitement behind that idea that made it a “must have”. It would no longer be unique and interesting.
So you can prime the pump so to speak, but there is no guarantee.
Also, and I’ve talked about this before, I do believe that publishing works much like venture capital. As a publisher you buy ten books that seem to have a solid chance at success. Two knock it out of the park. Three are dismal failures. And the other five are okay, I guess. Solid, but not what you were hoping for.
(The numbers given in one of those comments were actually more dire than that.)
I see that with my own books. A small number generate the majority of the revenue, but going in there was no way for me to know which ones those were going to be. I might’ve suspected a bit because some are passion projects that I know won’t sell, but honestly, my number 5 book for the year in terms of profit? Completely unexpected.
There was also a lot of uproar about this comment:
I don’t know what the book was. But I suspect this was one of those situations where they paid for that book and then something changed.
Maybe it was a political book of some sort and that person fell out of favor between contract signing and book delivery. Maybe it was about a topic where the fundamentals changed by the time it released. Maybe the author somehow lost their credibility or audience. Or the book was worse than expected. Maybe a book just like that published a month or two earlier and killed the buzz potential.
There are any number of reasons a book can look like a good idea when you sign the contract and then not look like a good idea when it’s ready to publish.
And I think what he said about “I don’t think marketing money can create a success” is actually true. This is the part Twitter went nuts about. But folks…
I write some books that people don’t like. Or that only a handful of people will like.
I could win the lottery tomorrow, put the perfect cover on one of those books, get massive distribution for it, put it out in the best possible format that would let it succeed, and market it like there’s no tomorrow, and it would not suddenly become a bestseller.
Every book I release, I try to advertise. But some I stop advertising. Because it’s like slogging through mud. And, yeah, maybe a new cover would help. Or a better blurb. Or a different way to advertise.
But sometimes…What I chose to write about didn’t interest anyone else.
In self-pub, for me, short stories are wasted words unless they’re sexy. No amount of begging and pleading is going to make those short stories of mine interesting to a significantly larger audience.
So, I actually agree with that guy. You try to promote something and see if it has life, but don’t throw good money after bad if there’s nothing there. Instead, look to your titles that show a little spark and nurture that spark into a full-blown fire.
And for the record I am not saying that trade pub does this well. I just finished reading an interesting non-fiction title that discussed some of trade pub’s idiocy over the years, which has included setting a date in advance to stop publishing a book and to destroy all remaining copies of that book without even seeing if the book would sell. And doing that on an active series that still had books coming out.
What idiocy. If I see book four in the bookstore and it looks good to me? I want to buy book 1 and start reading that series through from the start. So doing that and not nurturing that series, loses readers like me and guarantees that the series will slowly sell less and less copies. Bad business.
So, yes, trade pub can do shit-stupid things when it comes to marketing. But that doesn’t change the fact that you can’t buy long-term sales of a book. Short bursts? Sure. Make a list? Yep. But sustained, long-term sales? That comes down to the product and whether it meets reader need or not.
Okay. Off to experiment more with audio which is currently kicking my butt but showing glimmers of hope.
M.L. Humphrey 