Episode 084 - Using Content Legally with Kelley Way
June 22, 2021
Kelley Way discusses the legal considerations for use of images for book covers and promotional material, including use of free sites like Unsplash. She discusses the use of music and musical references—a topic of particular interest to me based on an Ann Kinnear Suspense Short I just wrote—and what Creative Commons and public domain material is, and the opportunities it opens for indy authors.
Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English and a minor in Music, and then attended the UC Davis School of Law. After law school, Kelley did a one-year fellowship at the Pacific Justice Institute, during which time she was approached by her first client, the copyright holder of a New York Times bestselling fantasy series. After the successful resolution of the case, she opened her own law firm. When Kelley is not practicing law, she spends her time reading, knitting, singing, spending time with her family, and learning new languages.
"When you look at those social media sites, part of their terms of use is that when you post pictures on their site, they have rights to the picture." —Kelley Way
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Matty: Hello, and welcome to The Indy Author Podcast. Today my guest is Kelley Way. Hey, Kelley, how are you doing?
[00:00:06] Kelley: I'm doing all right. How are you?
[00:00:07] Matty: I'm doing great, thank you. To give our listeners a little bit of background on you ...
[00:00:12] Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a BA in English and a minor in Music, and then attended the UC Davis School of Law. After law school, Kelley did a one-year fellowship at the Pacific Justice Institute, during which time she was approached by her first client, the copyright holder of a New York Times bestselling fantasy series. After the successful resolution of the case, she opened her own law firm. And when Kelley is not practicing law, she enjoys spending her time reading, knitting, singing, spending time with her family, and learning new languages. So welcome, Kelley, and I also wanted to thank Pauline Wiles for the introduction.
[00:00:51] Pauline has been a two-time previous guest, and she's the one who connected me and Kelley online.
[00:00:59] And so we're going to be talking today about legal considerations for content use. And before we dive into the details of that, I wanted to ask about one of the things that I mentioned in the bio, which is your first case with the copyright holder of the New York Times bestselling fantasy series, and I'm assuming that you can't completely revealed the details beyond that, but could you just share, what about that case captured your interest so that legal content usage for author seems to be a specialty of yours, and are there any learnings that we can start out with that you drew from that case?
[00:01:34] Kelley: For me, it was a dream case because I actually went into law because I loved books and music, so I really wanted to be practicing law within those areas. And it turns out it's mostly been books, I really haven't been doing a lot of music law, but that's fine by me because like I said, I love books. And in my spare time, I like to read fantasy. So again, like this is a dream case for me.
[00:01:55] But the actual case itself what had happened was that a fan had started publishing fan fiction, and some people were reaching out to the copyright holder saying, Hey, is this a legitimate part of the canon? Because people were honestly unsure of whether it was a legitimate thing. And also because the fan fiction was very poorly written. They wanted to put a stop to it.
[00:02:22] And so I first of all reached out to the infringer saying, Hey, you're not authorized to be publishing fan fiction. You got to stop and I didn't get any response, so I had to then to actually sue them, and then I got a response. Yeah. Funny about that. ...
[00:00:06] Kelley: I'm doing all right. How are you?
[00:00:07] Matty: I'm doing great, thank you. To give our listeners a little bit of background on you ...
[00:00:12] Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a BA in English and a minor in Music, and then attended the UC Davis School of Law. After law school, Kelley did a one-year fellowship at the Pacific Justice Institute, during which time she was approached by her first client, the copyright holder of a New York Times bestselling fantasy series. After the successful resolution of the case, she opened her own law firm. And when Kelley is not practicing law, she enjoys spending her time reading, knitting, singing, spending time with her family, and learning new languages. So welcome, Kelley, and I also wanted to thank Pauline Wiles for the introduction.
[00:00:51] Pauline has been a two-time previous guest, and she's the one who connected me and Kelley online.
[00:00:59] And so we're going to be talking today about legal considerations for content use. And before we dive into the details of that, I wanted to ask about one of the things that I mentioned in the bio, which is your first case with the copyright holder of the New York Times bestselling fantasy series, and I'm assuming that you can't completely revealed the details beyond that, but could you just share, what about that case captured your interest so that legal content usage for author seems to be a specialty of yours, and are there any learnings that we can start out with that you drew from that case?
[00:01:34] Kelley: For me, it was a dream case because I actually went into law because I loved books and music, so I really wanted to be practicing law within those areas. And it turns out it's mostly been books, I really haven't been doing a lot of music law, but that's fine by me because like I said, I love books. And in my spare time, I like to read fantasy. So again, like this is a dream case for me.
[00:01:55] But the actual case itself what had happened was that a fan had started publishing fan fiction, and some people were reaching out to the copyright holder saying, Hey, is this a legitimate part of the canon? Because people were honestly unsure of whether it was a legitimate thing. And also because the fan fiction was very poorly written. They wanted to put a stop to it.
[00:02:22] And so I first of all reached out to the infringer saying, Hey, you're not authorized to be publishing fan fiction. You got to stop and I didn't get any response, so I had to then to actually sue them, and then I got a response. Yeah. Funny about that. ...
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[00:02:39] Matty: Yeah. Because I suppose that one of the downsides of spam is that it's hard for people sometimes to distinguish the actual cease and desists from the fake.
[00:02:51] Kelley: Yeah. Copyright trolls or other people who are just trying to cash in and actually don't have a legitimate claim. Yeah. Those are always hard. Or the other possibility is that they didn't actually believe that the person would go so far as to sue them in court. Maybe they figured I'm small fry because their response was actually, well, I haven't made any money off of these books, and I was like, I'm sorry, but that's not the point here.
[00:03:15] Matty: Yeah. fan fiction is tough too, because I can imagine that someone might see that person's fan fiction and think, without doing any research, oh, here's a series that I could do fan fiction about. Unless you nip it in the bud, that's one of those things that could really expand.
[00:03:30] Kelley: Yeah. And fan fiction is also tricky in another sense, because they're being written by fans. So when you go after these people, you are potentially alienating your fan base. So that's another wrinkle in there, that in addition to the fact that some people might actually think that they're legitimate, you also have the issue of how do I go about stopping this without angering my fan base and losing readers?
[00:03:57] Matty: Were there any approaches that your client took that you could share in terms of how to buffer that kind of result?
[00:04:04] Kelley: Well, I know that most authors that have gotten to that level where they're famous enough that people are doing this fan fiction, they'll usually will allow it within certain limits. For example, J.K. Rowling, somebody created a database of all things Harry Potter, just a website that anyone can look up any piece of trivia relating to Harry Potter. And J.K. Rowling not only had no problem with that, she said she actually used it a time or two when she needed to refresh her memory on something.
[00:04:35] And so she had no issue until they decided that they wanted to actually publish it as a hard copy and start making money from it. And that was the point where she put her foot down and said, no, that's going too far. I don't have a problem with the website, but I can't allow you to actually make this a for-profit enterprise.
[00:04:52] Matty: I have to admit that I kind of admire J.K. Rowling for many reasons, but one of which is that she has kept, as I understand, such close control over all things Harry Potter. Is that your understanding also?
[00:05:04] Kelley: Yes, that is my understanding. And like I said, at that level, you're going to have a lot of people doing the fan fiction and it's not really worth an author's time to pursue every single one. So for her, the line that she drew is, first of all, are they making money? And second of all, is it something that people are actually going to think is legitimate because with the website, I assume that they have something up there to say, this is not J.K. Rowling approved. She's not affiliated with us per se. We're just fans. And so when you have it there, where people don't think that it actually is coming from the author, where they're not making any money off of it, a lot of times people will let that slide.
[00:05:42] Matty: I can understand why someone like J.K. Rowling with such a huge empire probably has a whole host of lawyers and other people who are keeping an eye on that for her. But I would also think that, well, this is a little bit of a different topic, but it makes me think of piracy. And that early on I think that authors see the first instance of their book being pirated and then sink a lot of time into trying to shut that down. And I just came to terms with the fact that, okay, I'm probably not losing sales, right? If someone's buying pirated stuff, it's not if the pirated stuff isn't available, they're now going to buy the book. It's people who are looking for free content. So I really don't do anything on the front about piracy. Do you have any thoughts about that?
[00:06:25] Kelley: I'd say it's similar to fan fiction. I think you want to take a bit of a harder stance. But as you said, the people who are downloading copies illegally, they're not likely to be people that would actually pay the money for the book in the first place. And again, you've really got to look at the size of the problem. If it's just this place out in Bulgaria where you have a handful of people who are downloading, like you said, not really going to cut into sales. It's not worth a huge amount of your time. But if it's something where you have like Napster and thousands and thousands of downloads, then you're looking at something that's a problem.
[00:07:02] Matty: And I would also think that if you do run into something like that, my first step would be to go to an organization like the Alliance of Independent Authors. I'm always plugging the Alliance of Independent Authors because I'm a very happy client of theirs, and I would probably be more likely to go to them and say, I'm encountering this. Is there something you can help me do? Because then they can take perhaps a whole group of authors' concerns forward rather than individuals. Thoughts about that?
[00:07:31] Kelley: Yeah. That's definitely a good step to take, particularly if the person is infringing on a whole lot of people. For example, Google the Authors Guild case. So if you remember that from a few years back where Google decided to digitize for pretty much every book known to man. And yeah, the Authors Guild took on the task of suing them on behalf of all the authors whose books were being scanned saying that this is a massive case of copyright infringement, and this has got to stop. So having those organizations that actually have the resources to battle this is certainly a good idea.
[00:08:06] Matty: I'd love to be a fly on the wall at Google when they were deciding that they were going to do that because it's not like Google goes, oh, sorry, we didn't think of that. They would have factored all that in and decided that it was something they were going to go ahead with anyway.
[00:08:20] Kelley: I'm sure they looked at it and there were some reasons why they felt it was fine to go ahead. One of them being they are working with libraries, so a lot of the books were older books whose copyright had expired. At least that was one of the reasons why the courts actually sided with Google on that case. So Authors Guild lost in that particular instance.
[00:08:39] But one of the reasons was for that, a lot of the books being scanned were in the public domain, i.e., there was no copyright on them in the first place. And then the other reason why the courts decided that this was fair use was that Google actually took a lot of steps to make sure that these digitized copies were not just downloadable. You couldn't just get a copy and not actually go out and buy the books. So they did make sure to take steps so that there wouldn't be widespread downloading or infringement and they wouldn't be cutting in on the author's profits with what they were doing.
[00:09:14] Matty: This is all great. Now I have like 15 episodes worth of questions that I have to ask you, but I wanted to start out our comments about the cease-and-desist letter reminded me of this because just recently I started getting emails through my website that basically say I saw pictures on your website and they're my pictures. I can't believe it. You've stolen my pictures, and now we're going to sue you if you don't take them down immediately.
[00:09:42] Kelley: I actually got on one of those the other day.
[00:09:45] Matty: I have to say I fell for it. So I wrote back, and I said, I have no idea what you're talking about. If you tell me what the picture is, I'll take it down. Because I was getting it from Unsplash and Unsplash advertises itself as royalty-free.
[00:09:57] Kelley: Yeah, Unsplash is one of those ones where they have permission from the copyright owner to give it out for free. And there's a bunch of websites like that. And that's why I was surprised too. I mean, I'm a copyright lawyer. I make a point of making sure that the pictures that I use are okay pictures to use. And when I clicked on the link that they gave me, it didn't come up with anything. It was a blank page. And so I just wrote back saying, you haven't specified what pictures. That the link doesn't work. So if you specify which pictures there are then I'll take them down. Same strategy that you did.
[00:10:28] Because there's actually a law called the Digital Millennium Copyright Act. They might've referenced it in the email that you got, but basically the way that it works is according to the statute, if you find infringing material on somebody's website and you contact the website owner, the person hosting the content, and tell them what it is that's being used that's they don't have a right to use, they have to take it down if they want to avoid liability.
[00:10:58] And so that does really work very well for a lot of copyright people because it makes it really easy to take down infringing content. But yeah, in this particular instance, whoever it is that's sending these out, it's probably not legitimate, I'm guessing, based on the fact that the person that contacted me and the person who contacted you didn't ever reply to your reply and they weren't specific on what it was that they felt was infringing.
[00:11:22] Matty: And once I realized that one second after you click the link, you think, ah, I shouldn't have done that. I got in touch with my friend, it's my hotline to someone who's in the data security business. And I'm like, oh, what should I do now? And I scanned my Mac for malware and things like that, and it was fine. But it is hard to know what they're after, because, to back up a little bit, even though I take all my images from Unsplash, I have no idea what Unsplash's vetting policy is.
[00:11:50] So I can easily imagine that some nefarious person could potentially take somebody else's photograph, put it up on Unsplash as if it were theirs, and they're thereby violating copyright, which is why I didn't want to just say, oh, I take all my images from Unsplash, so don't bother me. Do you have any insight into that? Like how reliable it is to use these sites that advertise themselves as royalty-free sites?
[00:12:15] Kelley: I would say that you have pointed out a legitimate risk that you're taking by using those sites. Because again, without doing a lot of research, you don't know what they're doing to make sure that the pictures being submitted are legitimately from the copyright holder. But in my opinion, you as the user would not be liable because the website holds itself out as having these pictures available with permission from the copyright holder. So I would think if there was a liability issue, it would be on the part of the website, because they are basically saying that we vetted these, and they are legitimate. So you are not liable for relying on that statement. I haven't looked at see if there's a case on that, but that's my personal opinion.
[00:13:00] Matty: The other thing that I thought was interesting about this is it wasn't clear to me, eliminating malware, asking me to give them my credit card number or something like that, it wasn't clear what they were trying to get. And in fact, I started getting a whole bunch of almost identically worded messages but sent to me from different people. And different not just in the sense that they were using a different name, but one was like, I'm a photographer named Jim and you're using my photographs, and the other one was, I'm an illustrator named Jane and you're using my illustrations. Like it was oddly specific to the circumstance. And then I tried putting a captcha option and still I was getting them. So I thought is somebody seriously like cutting and pasting some text into this? And if so, what are they getting out of it?
[00:13:47] Kelley: I was wondering that too, cause they're not demanding money or anything else. They're just saying, take down this picture without specifying what the picture is. And I have a captcha on my website too, so I'm not entirely sure what the end game is on that. So I don't know, there must be some new trend, but I'm not quite sure what it is that they're getting out of it.
[00:14:07] Matty: If anyone who's listening has any insight to this, pop over to the website and put a comment if you have any more information about what could be going on there.
[00:14:17] But getting back to the idea of a site like Unsplash, one of the things we wanted to talk about was using images for book covers or promotional material. So when my book cover designer designs my book cover and sends it to me for my approval, she's using usually watermarked images. And then when I picked the one I like, she says, okay, go out to Shutterstock or whatever and purchase this. And she wants me to purchase it so that it's clear that all the rights are residing with me, and there's no question about that. Does that seem like a best practice in terms of when someone else is creating material for you?
[00:14:52] Kelley: I think that's definitely a good way to go, because like you said, it's very clear who has the permission to use it. Whereas I don't think it would be wrong for the person who's creating the material to be the one to buy the license. But as the person that you use pointed out, that creates a little bit of a gray area as to who has the license and that permission. Whereas if you do it yourself it is very clear cut. So I don't think that either method is wrong, but I think that she probably hit the nail on the head. That erases a lot of gray by having it directly go to you so it's very clear who has the rights and who got the license.
[00:15:27] Matty: And if you're purchasing book covers from a pre-made book cover service or designer, are there any steps you should take to make sure that the elements that they're using in the pre-made cover are legit?
[00:15:41] Kelley: I would say that you want to have some kind of written agreement with them. Hopefully they have some kind of standardized contract or something that they'll send you. It doesn't have to be long, but there should be something in there that puts the burden on them to make sure that the content that they're using to create the cover is legitimate and they have all the permissions that they need to have. And that if it should turn out that what they've used was not used with permission, the liability is on them and not on you.
[00:16:09] Matty: And then the idea of people in the images, because then I think it's trickier because you're not only assuming the right of the person who took the picture, but there's also obviously the involvement of the person who's being depicted. And any people that I have in my covers or promotional material are always unidentifiable. It's just, you know, from the back or whatever. Thoughts about that, images featuring people?
[00:16:36] Kelley: I think that's very smart because that is another area of law that touches on book publication and that's the right of privacy and right of publicity, it's kind of flip sides of the same coin, but basically, it's using someone's name and likeness without permission. The real difference is that right of privacy is the person's like I never wanted my photo to be on a book cover. I want to be private and keep my life to myself. How dare you? Whereas right of publicity is I may be a celebrity or something, I don't mind being out in the public, but I want to control how and where I appear.
[00:17:11] And so that's basically the difference between the two is both of them is using someone's name or image or something else that is part of their identity. It's just a question of whether they want to be out in the public or not. But either way, they do have a potential cause of action against you if they do not like the fact that they are appearing on your book cover. So you do want to be careful when you're using photos like that, that the permission of the person in the photo has been granted.
[00:17:41] Matty: How about a scenario where you're pulling, let's say, a historical photograph. Let's say that you're writing a book about Woodstock, and you want to use a picture of the Woodstock milieu you as your cover, and it includes people in it. Different rules if let's say you're pulling that from some sort of creative commons source.
[00:18:03] Kelley: So when you're doing an event like that, or it's not so much about the people and the photo was taken in a public venue, then I suppose they could potentially still try to claim some sort of right of privacy or something along those lines, but it would be much tougher for them because they have put themselves out there in a place where they're likely to have a photograph or something or other taken. So something like that, they'd have a much weaker argument for why there should be a right of privacy when they have gone and essentially put themselves out there in the public eye by attending this event or doing something else that would make it more likely that their picture was going to be taken. So something like that, they could still potentially put forward some kind of argument, but their case would be a lot weaker when the photo is about the event and not so much about the person.
[00:18:53] Matty: And if you're looking through a site like, even Shutterstock, Unsplash, any site, and let's say you see a series of photographs of a person that's exactly, looks exactly like your book's protagonist and you want to use them on the cover, are there any steps you can take to have the appropriate agreements in place, not only with the photographer but with the subject, in order to be able to go ahead with that?
[00:19:17] Kelley: Well, hopefully if it's on a place like Shutterstock, the photographer got a release from the person that was the subject of the photo that allowed them to use that. But if you want to confirm that, I'd say probably be a good idea to look at Shutterstock's terms of use or whatever other materials they have available for seeing if there's some kind of vetting process to make sure that when you have a photo of people, that the people's permission was granted before the photo was posted.
[00:19:47] What I've heard of being an issue in the past is like social media, like Instagram or Facebook, where people post photos, and then they find those photos being used somewhere else, like in somebody's marketing materials or something. And then it's a little trickier because they're like, wait a minute, I didn't give permission. But when you look at those social media sites, part of their terms of use is that when you post pictures on their site, they have rights to the picture. Which may or may not cover granting a license to some other venue. So maybe that's included, maybe that's not, I'd have to check the terms of use. But it does mean that you lose a certain amount of control when you post it on a public venue like that.
[00:20:31] Matty: Wrapping up the part of the conversation about images, are there different levels of strictness about use of an image on a book cover versus use of an image, for example, on promotional material?
[00:20:41] Kelley: So I'm not aware of a large difference, just that when it's marketing materials or anything where you're trying to make money basically from the photograph, then they're going to look at it a bit more closely. For example, when they're looking at fair use to decide whether or not your use falls under the fair use paradigm, one of the things that they look at is whether or not it's a commercial use and whether it's tied into making money in some fashion or other. So if you're trying to make money, either from the photo or using the photo as part of the process of making money, then they're going to look at that more closely and that'll weigh against it being fair use if that's the case.
[00:21:30] Matty: That kind of leads into the social media question because my books are set in my area, Philadelphia, or in Mount Desert Island, Maine, or in Sedona, Arizona, and so I have a lot of that kind of stuff coming across my Facebook feed, and if I saw one that I like, oftentimes I would post it to my author page and say, you know, Oak Creek Canyon is where Lizzy has her showdown with a bad guy. And I actually was contacted by one of the Philadelphia area sites, and they were very nice about it, they said, we don't want our pictures used for money-making purposes. And they didn't even ask me to take it down. I went ahead and took it down. But you know, they said just FYI for future use. I must admit I didn't research it. It's not like I went and looked into any caveats that they had on their Facebook page, but any guidelines for people who are sharing social media posts for promotional purposes?
[00:22:31] Kelley: I think that if you're going to be using material from somebody else's social media feed, I think the best practice would be to actually get permission from that person before you post it, just to make sure that you're in the clear. Because when it's posted online like that in a public forum, you can argue that there's some sort of implied license there where they're allowing other people to make use of it, but it's tricky. You're getting yourself into a bit of a gray area where there's an argument either way.
[00:23:03] So if you want to make sure that it's clear cut and you're definitely not going to get in trouble, I would recommend actually reaching out to whoever posted it to see if it was okay to repost or link back or whatever it is that you want to do to make sure that they're okay with it.
[00:23:18] Matty: And what if it's a large organization, let's say AAA, for some reason AAA posts lots of beautiful photographs of Arizona that I always want to share. Should I try to get in touch with somebody at AAA before I share those?
[00:23:33] Kelley: I think it wouldn't hurt. They're a big enough organization that they probably have somebody that deals with these kinds of rights and permissions questions. So I don't see why it would be a bad idea if you can actually find that contact information to reach out and see if it is all right if I use this, this is what I want to use it for. I'm happy to link back and give you credit. Would that be okay? And see how they respond. And I suppose the downside of if you wanted to do that approach is it's always possible that either they'll say outright, no, or they'll want money in order to do that. So that's the risk that you're taking, but as with any gamble you have the risk, but you also have a better payoff where if they say yes, then you're golden.
[00:24:15] Matty: Right. And I suppose another way to accommodate it is that I am continuing to share photographs from this Philadelphia area site on my Facebook feed, but I don't use them as promotional material. At this point, people who are following me on Facebook probably know that I'm from the Philadelphia area, and I'll just say, look at this beautiful picture of Boathouse Row, and I'm not saying, which shows up in Book 4. I'm just sharing it and that site at least doesn't have any concern about that. In fact, they like that because they're trying to get word out about their site. So if you're strictly sharing it and you're not trying to monetize it, is that a fairly safe thing to do if they have their permission set so that it's shareable.
[00:24:55] Kelley: So it really depends on who it is that you're asking. Some people are more okay with it than others. So for example, Disney is extremely proprietary of their content. So I would recommend against doing anything related to Disney without their express permission, because if you do anything Disney related without their permission, odds are pretty good they're going to track you down and they're going to tell you that you can't do that. Whereas there are others who are like, yeah, sure, go ahead, sounds great. So a lot of it just depends on who it is that you're talking to and what it is that you're going to be doing.
[00:25:31] Matty: Any other tips that you would want to share about images before we move on to music?
[00:25:38] Kelley: So I would just add that for sites like AAA or other sites where they tend to have a lot of picture content, you might want to check their website to see if they just have some kind of general license out there to allow people to use things without contacting them. There are some sites out there that do things like that.
[00:25:58] For example, if you wanted to make quotes from Bible translations that are still under copyright, for example, that's a very common request. A lot of those websites for those Bible translations actually have a whole webpage just devoted to here's when you can just go ahead and use it without having to contact us, all we ask is you do XYZ. And if you want to do something outside of these uses, then you do have to contact us. But if you just stay within these guidelines, then you're free and clear and go ahead.
[00:26:27] Matty: I guess the other thing I'm thinking of is if I were better organized, I would stockpile my own photographs when I'm at these locations, because I think that would be intrinsically more interesting to people. They might not be as beautiful as photographs taken by a professional photographer, but I think people really enjoy seeing, here I am having a lobster in Southwest Harbor, or those ones that are more personal, I think you might get more promotional bang for the buck anyway. And it's your picture, so nobody's going to complain about it.
[00:26:54] Kelley: Yeah, that is definitely a very safe way to go is just take the picture yourself and then you don't have to worry about a copyright holder saying, Hey, wait a minute, what are you doing?
[00:27:03] Matty: Any considerations considering what the picture is of? So if you take a picture of the front of a store, for example, is that safe?
[00:27:14] Kelley: Some architecture designs that are technically under copyright, and that's not quite my area of expertise, but I think if I remember correctly, if it's viewable to the public, then it's a free for people to take a picture of, but I'd have to research that to confirm it. But I believe that's the rule. So yeah, like a public storefront. I don't think that they could claim copyright infringement for taking a picture of a public storefront.
[00:27:40] Matty: So moving on to music, I'm particularly interested in this because I just finished a short story that references a band name and a song title. So my understanding is band name and song titles are probably okay, but lyrics are probably not. Can you comment on just in the music world, what is and isn't safe to reference in the content of a book.
[00:28:02] Kelley: So a band name or a song title, those are not covered under copyright. So they cannot claim any kind of copyright rights to the band name or the song title. There might possibly be a trademark thing, but it's generally considered fair use under trademark law if you are just referencing the actual thing that's being trademarked. So for example, the band name, you are quite accurately saying that the band name is the creator of this particular song, and that would be considered fair use of the trademark because you are accurately describing where it came from. So something like that would probably be fine.
[00:28:40] Lyrics are a bit trickier because lyrics are covered under copyright law. And I've heard a lot of things about, oh 10% or just do four lines and you're fine. And I have to say there's unfortunately no hard, clear rule about how much is too much. So obviously the less that you take, the less likely it is that they're going to care and come after you.
[00:29:06] So there is some truth in that, but there's no exact rules saying that this much but no more is fine. So you can take a small amount of music lyrics, but again, you've got to be very careful because the more you take, the more likely it is that if they find out about it, they're going to have an issue with it.
[00:29:26] Matty: I think that music lyrics are so tricky because so often music lyrics will be the trigger for someone to want to write something, or at least ties in so nicely to a scene that the author is tempted to use them. Do you have any tips for, if someone really feels strongly that they want to quote lyrics, how they would go about trying to get approval for doing that?
[00:29:49] Kelley: I think that if they do want to use an extended section of lyrics, then yes, they do definitely want to go about getting permission from the copyright owner. As far as how to go about doing that, I would imagine there's probably a database out there to make that sort of thing easier, but I'm not quite sure. As I said, most of my experiences with actual books, like book contracts and things of that nature. So I haven't had to go about doing that personally. So I don't know exactly what tips or tricks would make that easier. Just that that would be the process that you would want to pursue if you want to do that. You definitely want their permission if you're going to be doing multiple verses, for example, out of a song.
[00:30:35] Matty: A couple of years ago, number of years ago now, I wanted to use a quote from T. H. White's THE SWORD IN THE STONE as the epigraph of the book. And I spent quite a bit of time tracking down the rights holder. And it was hard because the rights holder that was listed in the front of my very old book of THE SWORD IN THE STONE, those rights had passed on to other organizations and ended up being a Big Five publisher who now held the rights.
[00:31:03] And so I got in touch with them. And I said, what would I need to do in order to use this? And they were willing to license it to me, but the interesting thing was that it was for a specific period of time and for specific markets. So they said, this much for the US market and this much for everywhere else over this period of time. And I said, okay, the rights you want for the US market are more than I'm ever going to make from the book in its entire life. But I wrote back and I said, oh, sorry, that's a little rich for my blood. And they wrote back and they offered me a lower price. Now it was still too much. It was not only too much from a money point of view, but it was too much because the logistics of keeping track and then remembering to re up at the end of the time, it was just a mess. I didn't want the quote that much. But it was interesting that even a big publisher like that was willing to negotiate with an indy.
[00:31:54] Kelley: Yeah. Yeah. You'd be surprised how many people are willing to do negotiations and just picking up on a couple of things that you said, when you were trying to track down the current copyright holder, did you check the Copyright Office Database?
[00:32:07] Matty: I can't remember anymore how I eventually found out who it was.
[00:32:11] Kelley: Yeah, yeah. Because you're supposed to update the copyright when the copyright changes ownership. Not that everybody does. Nobody's going to get punished for not doing it, but that's the best practice what you are supposed to do. So if you're trying to track down a copyright holder, the Copyright Office Database is a good place just to start looking.
[00:32:31] And then the other thing that occurred to me when you were talking is I'm aware of a website, copyright.com, that has a lot of book titles on it, where it was just a standardized license where you just look up the book and you can buy a standard license for a flat fee. And that tells you what specific uses you can use the book for. So maybe the book that you're looking for is on there, maybe it's not, but that's another spot that you can look at if you're trying to get a quote out of a book or something of that nature and might be worth looking into.
[00:33:03] Matty: The other question I wanted to ask about music is we've been talking a little bit about music within the content of a book. How about music for promotional purposes? Like making a book trailer.
[00:33:14] Kelley: Oh, yeah, that's definitely interesting. And again, you want to get permission, if you can. For recorded music, there are several organizations out there, they're more radio and things, but I don't know, and you might want to look into whether they give permission for a specific works. You have BMI is one of them. ASCAP is another one. And there's a third one. That's not as big as those two. I'm forgetting its name < SESAC is the third big player for music rights>, but those three are the big players. Pretty much every piece of music that is distributed in the United States probably has a license through one of them. Because they just monitor everything and then they make it a lot easier to collect royalties for playing those particular songs.
[00:34:00] So if you're having trouble tracking down the actual copyright holder themselves, you might want to look and see if it's registered with one of those three groups and see if there's a license that you can get through one of those groups.
[00:34:13] Matty: I know that the only two times I've needed music are for the intro and outro of the podcast. And if Shutterstock has a music arm, it was like Shutterstock, except for music. You could go on, you could, purchase the rights to the song. And it's nice because you usually get several variations. You get the long variation, and you get like little snippets of different variations. And so I imagine that any music I wanted to put to any promotion related to The Indy Author, I would have the material there because I have several minutes worth of music. I'm never going to need more than a couple of seconds at a time. And it's a benefit to have it be consistent because then you have this branding benefit. And that people, I think for most of the promotions that the listeners of this podcast are going to be doing, you shouldn't rush out and get a new piece of music every time you want to put together a new trailer or commercial. And I think the same is true, I have the Ann Kinnear music and whenever I make a trailer, I'm using the Ann Kinnear music and it saves me time and money.
[00:35:10] Kelley: Yeah, that's a great way to go. If there's a musical version of Shutterstock, I think that is an excellent resource.
[00:35:16] Matty: One of the things I wanted to talk about, and this is a bigger question of content is this concept of Creative Commons, and I'm not sure I fully understand this. Can you describe what Creative Commons is and what rights that enables?
[00:35:31] Kelley: So the idea behind the Creative Commons is the creators of that felt that they didn't really like the copyright laws as they are now. They felt that they were too restrictive and that this copyrightable content ought to be free and free for other people to use. So they created this idea of the Creative Commons, which basically is that copyright owners can put their work out there with a standardized license saying it's free for other people to use. And Creative Commons has several different types of licenses depending on what it is that you're willing to let other people do with it.
[00:36:09] But the idea is, yes, I have a copyright, but I'm still just giving this away under these particular conditions, whether that's it's free for anybody anywhere, anytime, anything, or whether it's you can use this as long as you're not making money off of it. So there's a few different varieties. So that's basically the concept is these copyright owners are essentially waiving their rights to their copyright to their work.
[00:36:33] Matty: So if I were working on a cover design for THE FALCON AND THE OWL, one of the Ann Kinnear books, could I go to the Creative Commons website and search for owl, and then whatever showed up there, I knew that I would be able to use free and clear?
[00:36:48] Kelley: Yeah, absolutely, you can do that. They have a search engine specifically for that purpose, and I think you can even filter it for commercial versus non-commercial use, since as I said they have a non-commercial license and a commercial license in the Creative Commons. So that is absolutely a good way to go.
[00:37:04] And you could even go to Google, and you could filter for photos that have been tagged for commercial use as well, and find a photo that way. Although I found that the content that's been tagged for commercial reuse on Google doesn't tend to be the greatest, but it's still an avenue that you could go through to find work that's been tagged as free to use.
[00:37:25] Matty: And then can you also describe what is meant by public domain work?
[00:37:30] Kelley: So public domain, basically, it's a term to cover anything that could have a copyright but does not. So if it had a copyright in the past, but that copyright has now expired or if it never had a copyright for whatever reason at all, anything that falls under those categories of not currently having a copyright, all of that is part of what's called the public domain. The idea of it as the public domain, it's in a place where the public is free to use it for anything, anytime, anywhere. There is no copyright attached to it whatsoever.
[00:38:08] Matty: One of the things that I thought was interesting is that because my Ann Kinnear books and short stories, the titles are all based on Shakespeare quotes, I spend a lot of time searching Shakespeare quotes. And in the process of doing that, I found lots and lots of versions of Shakespeare works. And I'm assuming it's because someone could legitimately take ROMEO AND JULIET and put it out there and create a new book out of it. Maybe they make a beautiful cover for it. And they're using the Shakespeare text as the content, but it's the presentation of it. But I don't hear people talking about that that much in the indy publishing community. Is that something that you have exposure to, and is what I'm describing actual legitimate use of that material?
[00:38:56] Kelley: So Shakespeare is definitely public domain. If it ever had a copyright, that copyright is long gone. So anyone can use Shakespeare for any purpose whatsoever. So if someone wanted to publish a new book that has the exact text as it originally appeared and just republish that, they're free to do so they don't need to get a license from anybody to do that. But they also don't have a copyright to any of that material, unless it is something new and creative that they came up with in the process of creating and publishing this book. They don't have any rights to the old content where the copyright had already expired.
[00:39:35] Matty: I'm going to switch to a different example, which you had mentioned: Bible translations.
[00:39:40] Kelley: The King James Bible is interesting because in America, there is no copyright to the King James Bible. So in America, you are free to use the King James Bible quotations without having to get a license from anybody. But, in Britain it is still under copyright because it's under a Royal copyright because it's the King James Bible. So that particular one is interesting. But yeah, in America you're free to use King James without any repercussions. But more modern translations like the ESV or the NIV, those translations are more recent and so those do still have copyright on them. And you would need to get permission if it didn't fall within those uses that their websites said are okay without having to reach out.
[00:40:25] Matty: If there is someone who is, let's say an illustrator and they want to put out a book, they don't really want to write the story, but they want to do illustrations for it, is there somewhere they could go and say, let's say fairy tales, they want to do an illustrated version of a fairy tale, and they want to be sure that they're using a public domain version of the text of the fairy tale. How would they go about finding that?
[00:40:49] Kelley: So that would be interesting. Basically the way it stands right now is that anything that was published before 1926 has no copyright in America. If it ever had a copyright, it's expired. So that would be the cutoff. So if you were able to find something, for example, a book of fairy tales that was published in 1915, then the fact that it was published in 1915 means that everything in it is public domain. There is no copyright. So that would be a good way to go about it is finding something that was definitively published prior to 1926.
[00:41:25] Matty: And if you then wanted to publish that, let's say, in the UK, do you have to do a separate search to decide whether it's permissible to publish it in the UK?
[00:41:35] Kelley: It would probably be a good idea if you're publishing it in the UK to talk to somebody who's familiar with UK copyright laws, just because their laws are pretty similar. I think they're also a party to an international copyright convention, so the copyright laws should have some strong similarities to America's, but there are still some differences that you probably want to be aware of if you're publishing it in the UK.
[00:42:01] As I said, King James is an exception because it has a special copyright that doesn't actually expire. Other than that, copyright in the UK does actually have an expiration date as well. It would just be a question of what that expiration date is, and if the particular work you're looking at might have some exception apply to it.
[00:42:21] Matty: Are there any other resources you would recommend if people are contemplating any of this and they're not legal professionals, but they want a kind of an entree to understanding some of this terminology and rights.
[00:42:33] Kelley: So the Copyright Office actually has a lot of circulars where they try to explain some of these copyright concepts to people. So that's one place that you could look. I would also recommend my website. You know, I have videos and blog articles where I try to explain these commonly asked questions and these issues that come up on a regular basis. So you're free to look at those resources as well, to try to get a better sense of these things and how they work. And otherwise just talk to someone knowledgeable and see if they're able to explain it to you in a way that you're able to understand.
[00:43:11] Matty: So Kelley, let people know where that website is and other places they can find you online.
[00:43:16] Kelley: Sure. So my website is kawaylaw.com. And I have a whole page that's just videos. And I have a page devoted to my blog articles. And if someone were to reach out to me personally, my email is [email protected]. And again, if it's something where it's just a basic question with an easy to answer, I'm happy to just shoot off a response. If it's something more complicated, like, here's my messy issue, what do I do? Something like that, I would need to actually do some kind of paid consultation. But if it's just an easy question, like what is a copyright, then I can direct you to a video or give you a simple answer.
[00:43:59] Matty: Yeah. And I'm going to repeat a great piece of advice that one of my other guests, Jerri Williams, mentioned which is, don't contact the person unless you've exhausted the resources that they make publicly available. So don't pose a question that the person's going to say, that's in the first video on my YouTube channel. Look around and see what they're having to offer, and then perhaps contact them for a more detailed clarification to use everybody's time efficiently.
[00:44:25] Kelley: I also have a YouTube channel.
[00:44:27] Kelley: And where would they go to find that? So it's on YouTube, but the channel is just Law Office of Kelley A Way. So it should be easy to find. At this point, I only have a few videos up and I'm working on more. I have a few more in the pipeline. So if you just keep an eye on it, I hope to have several videos out that answer some very common questions that I hear a lot.
[00:44:48] Matty: Great. Well, Kelley, thank you so much. I appreciate you being so patient with me peppering you with legal questions.
[00:44:54] Kelley: Thanks again for inviting me.
[00:44:55] Matty: My pleasure. Thank you.
[00:02:51] Kelley: Yeah. Copyright trolls or other people who are just trying to cash in and actually don't have a legitimate claim. Yeah. Those are always hard. Or the other possibility is that they didn't actually believe that the person would go so far as to sue them in court. Maybe they figured I'm small fry because their response was actually, well, I haven't made any money off of these books, and I was like, I'm sorry, but that's not the point here.
[00:03:15] Matty: Yeah. fan fiction is tough too, because I can imagine that someone might see that person's fan fiction and think, without doing any research, oh, here's a series that I could do fan fiction about. Unless you nip it in the bud, that's one of those things that could really expand.
[00:03:30] Kelley: Yeah. And fan fiction is also tricky in another sense, because they're being written by fans. So when you go after these people, you are potentially alienating your fan base. So that's another wrinkle in there, that in addition to the fact that some people might actually think that they're legitimate, you also have the issue of how do I go about stopping this without angering my fan base and losing readers?
[00:03:57] Matty: Were there any approaches that your client took that you could share in terms of how to buffer that kind of result?
[00:04:04] Kelley: Well, I know that most authors that have gotten to that level where they're famous enough that people are doing this fan fiction, they'll usually will allow it within certain limits. For example, J.K. Rowling, somebody created a database of all things Harry Potter, just a website that anyone can look up any piece of trivia relating to Harry Potter. And J.K. Rowling not only had no problem with that, she said she actually used it a time or two when she needed to refresh her memory on something.
[00:04:35] And so she had no issue until they decided that they wanted to actually publish it as a hard copy and start making money from it. And that was the point where she put her foot down and said, no, that's going too far. I don't have a problem with the website, but I can't allow you to actually make this a for-profit enterprise.
[00:04:52] Matty: I have to admit that I kind of admire J.K. Rowling for many reasons, but one of which is that she has kept, as I understand, such close control over all things Harry Potter. Is that your understanding also?
[00:05:04] Kelley: Yes, that is my understanding. And like I said, at that level, you're going to have a lot of people doing the fan fiction and it's not really worth an author's time to pursue every single one. So for her, the line that she drew is, first of all, are they making money? And second of all, is it something that people are actually going to think is legitimate because with the website, I assume that they have something up there to say, this is not J.K. Rowling approved. She's not affiliated with us per se. We're just fans. And so when you have it there, where people don't think that it actually is coming from the author, where they're not making any money off of it, a lot of times people will let that slide.
[00:05:42] Matty: I can understand why someone like J.K. Rowling with such a huge empire probably has a whole host of lawyers and other people who are keeping an eye on that for her. But I would also think that, well, this is a little bit of a different topic, but it makes me think of piracy. And that early on I think that authors see the first instance of their book being pirated and then sink a lot of time into trying to shut that down. And I just came to terms with the fact that, okay, I'm probably not losing sales, right? If someone's buying pirated stuff, it's not if the pirated stuff isn't available, they're now going to buy the book. It's people who are looking for free content. So I really don't do anything on the front about piracy. Do you have any thoughts about that?
[00:06:25] Kelley: I'd say it's similar to fan fiction. I think you want to take a bit of a harder stance. But as you said, the people who are downloading copies illegally, they're not likely to be people that would actually pay the money for the book in the first place. And again, you've really got to look at the size of the problem. If it's just this place out in Bulgaria where you have a handful of people who are downloading, like you said, not really going to cut into sales. It's not worth a huge amount of your time. But if it's something where you have like Napster and thousands and thousands of downloads, then you're looking at something that's a problem.
[00:07:02] Matty: And I would also think that if you do run into something like that, my first step would be to go to an organization like the Alliance of Independent Authors. I'm always plugging the Alliance of Independent Authors because I'm a very happy client of theirs, and I would probably be more likely to go to them and say, I'm encountering this. Is there something you can help me do? Because then they can take perhaps a whole group of authors' concerns forward rather than individuals. Thoughts about that?
[00:07:31] Kelley: Yeah. That's definitely a good step to take, particularly if the person is infringing on a whole lot of people. For example, Google the Authors Guild case. So if you remember that from a few years back where Google decided to digitize for pretty much every book known to man. And yeah, the Authors Guild took on the task of suing them on behalf of all the authors whose books were being scanned saying that this is a massive case of copyright infringement, and this has got to stop. So having those organizations that actually have the resources to battle this is certainly a good idea.
[00:08:06] Matty: I'd love to be a fly on the wall at Google when they were deciding that they were going to do that because it's not like Google goes, oh, sorry, we didn't think of that. They would have factored all that in and decided that it was something they were going to go ahead with anyway.
[00:08:20] Kelley: I'm sure they looked at it and there were some reasons why they felt it was fine to go ahead. One of them being they are working with libraries, so a lot of the books were older books whose copyright had expired. At least that was one of the reasons why the courts actually sided with Google on that case. So Authors Guild lost in that particular instance.
[00:08:39] But one of the reasons was for that, a lot of the books being scanned were in the public domain, i.e., there was no copyright on them in the first place. And then the other reason why the courts decided that this was fair use was that Google actually took a lot of steps to make sure that these digitized copies were not just downloadable. You couldn't just get a copy and not actually go out and buy the books. So they did make sure to take steps so that there wouldn't be widespread downloading or infringement and they wouldn't be cutting in on the author's profits with what they were doing.
[00:09:14] Matty: This is all great. Now I have like 15 episodes worth of questions that I have to ask you, but I wanted to start out our comments about the cease-and-desist letter reminded me of this because just recently I started getting emails through my website that basically say I saw pictures on your website and they're my pictures. I can't believe it. You've stolen my pictures, and now we're going to sue you if you don't take them down immediately.
[00:09:42] Kelley: I actually got on one of those the other day.
[00:09:45] Matty: I have to say I fell for it. So I wrote back, and I said, I have no idea what you're talking about. If you tell me what the picture is, I'll take it down. Because I was getting it from Unsplash and Unsplash advertises itself as royalty-free.
[00:09:57] Kelley: Yeah, Unsplash is one of those ones where they have permission from the copyright owner to give it out for free. And there's a bunch of websites like that. And that's why I was surprised too. I mean, I'm a copyright lawyer. I make a point of making sure that the pictures that I use are okay pictures to use. And when I clicked on the link that they gave me, it didn't come up with anything. It was a blank page. And so I just wrote back saying, you haven't specified what pictures. That the link doesn't work. So if you specify which pictures there are then I'll take them down. Same strategy that you did.
[00:10:28] Because there's actually a law called the Digital Millennium Copyright Act. They might've referenced it in the email that you got, but basically the way that it works is according to the statute, if you find infringing material on somebody's website and you contact the website owner, the person hosting the content, and tell them what it is that's being used that's they don't have a right to use, they have to take it down if they want to avoid liability.
[00:10:58] And so that does really work very well for a lot of copyright people because it makes it really easy to take down infringing content. But yeah, in this particular instance, whoever it is that's sending these out, it's probably not legitimate, I'm guessing, based on the fact that the person that contacted me and the person who contacted you didn't ever reply to your reply and they weren't specific on what it was that they felt was infringing.
[00:11:22] Matty: And once I realized that one second after you click the link, you think, ah, I shouldn't have done that. I got in touch with my friend, it's my hotline to someone who's in the data security business. And I'm like, oh, what should I do now? And I scanned my Mac for malware and things like that, and it was fine. But it is hard to know what they're after, because, to back up a little bit, even though I take all my images from Unsplash, I have no idea what Unsplash's vetting policy is.
[00:11:50] So I can easily imagine that some nefarious person could potentially take somebody else's photograph, put it up on Unsplash as if it were theirs, and they're thereby violating copyright, which is why I didn't want to just say, oh, I take all my images from Unsplash, so don't bother me. Do you have any insight into that? Like how reliable it is to use these sites that advertise themselves as royalty-free sites?
[00:12:15] Kelley: I would say that you have pointed out a legitimate risk that you're taking by using those sites. Because again, without doing a lot of research, you don't know what they're doing to make sure that the pictures being submitted are legitimately from the copyright holder. But in my opinion, you as the user would not be liable because the website holds itself out as having these pictures available with permission from the copyright holder. So I would think if there was a liability issue, it would be on the part of the website, because they are basically saying that we vetted these, and they are legitimate. So you are not liable for relying on that statement. I haven't looked at see if there's a case on that, but that's my personal opinion.
[00:13:00] Matty: The other thing that I thought was interesting about this is it wasn't clear to me, eliminating malware, asking me to give them my credit card number or something like that, it wasn't clear what they were trying to get. And in fact, I started getting a whole bunch of almost identically worded messages but sent to me from different people. And different not just in the sense that they were using a different name, but one was like, I'm a photographer named Jim and you're using my photographs, and the other one was, I'm an illustrator named Jane and you're using my illustrations. Like it was oddly specific to the circumstance. And then I tried putting a captcha option and still I was getting them. So I thought is somebody seriously like cutting and pasting some text into this? And if so, what are they getting out of it?
[00:13:47] Kelley: I was wondering that too, cause they're not demanding money or anything else. They're just saying, take down this picture without specifying what the picture is. And I have a captcha on my website too, so I'm not entirely sure what the end game is on that. So I don't know, there must be some new trend, but I'm not quite sure what it is that they're getting out of it.
[00:14:07] Matty: If anyone who's listening has any insight to this, pop over to the website and put a comment if you have any more information about what could be going on there.
[00:14:17] But getting back to the idea of a site like Unsplash, one of the things we wanted to talk about was using images for book covers or promotional material. So when my book cover designer designs my book cover and sends it to me for my approval, she's using usually watermarked images. And then when I picked the one I like, she says, okay, go out to Shutterstock or whatever and purchase this. And she wants me to purchase it so that it's clear that all the rights are residing with me, and there's no question about that. Does that seem like a best practice in terms of when someone else is creating material for you?
[00:14:52] Kelley: I think that's definitely a good way to go, because like you said, it's very clear who has the permission to use it. Whereas I don't think it would be wrong for the person who's creating the material to be the one to buy the license. But as the person that you use pointed out, that creates a little bit of a gray area as to who has the license and that permission. Whereas if you do it yourself it is very clear cut. So I don't think that either method is wrong, but I think that she probably hit the nail on the head. That erases a lot of gray by having it directly go to you so it's very clear who has the rights and who got the license.
[00:15:27] Matty: And if you're purchasing book covers from a pre-made book cover service or designer, are there any steps you should take to make sure that the elements that they're using in the pre-made cover are legit?
[00:15:41] Kelley: I would say that you want to have some kind of written agreement with them. Hopefully they have some kind of standardized contract or something that they'll send you. It doesn't have to be long, but there should be something in there that puts the burden on them to make sure that the content that they're using to create the cover is legitimate and they have all the permissions that they need to have. And that if it should turn out that what they've used was not used with permission, the liability is on them and not on you.
[00:16:09] Matty: And then the idea of people in the images, because then I think it's trickier because you're not only assuming the right of the person who took the picture, but there's also obviously the involvement of the person who's being depicted. And any people that I have in my covers or promotional material are always unidentifiable. It's just, you know, from the back or whatever. Thoughts about that, images featuring people?
[00:16:36] Kelley: I think that's very smart because that is another area of law that touches on book publication and that's the right of privacy and right of publicity, it's kind of flip sides of the same coin, but basically, it's using someone's name and likeness without permission. The real difference is that right of privacy is the person's like I never wanted my photo to be on a book cover. I want to be private and keep my life to myself. How dare you? Whereas right of publicity is I may be a celebrity or something, I don't mind being out in the public, but I want to control how and where I appear.
[00:17:11] And so that's basically the difference between the two is both of them is using someone's name or image or something else that is part of their identity. It's just a question of whether they want to be out in the public or not. But either way, they do have a potential cause of action against you if they do not like the fact that they are appearing on your book cover. So you do want to be careful when you're using photos like that, that the permission of the person in the photo has been granted.
[00:17:41] Matty: How about a scenario where you're pulling, let's say, a historical photograph. Let's say that you're writing a book about Woodstock, and you want to use a picture of the Woodstock milieu you as your cover, and it includes people in it. Different rules if let's say you're pulling that from some sort of creative commons source.
[00:18:03] Kelley: So when you're doing an event like that, or it's not so much about the people and the photo was taken in a public venue, then I suppose they could potentially still try to claim some sort of right of privacy or something along those lines, but it would be much tougher for them because they have put themselves out there in a place where they're likely to have a photograph or something or other taken. So something like that, they'd have a much weaker argument for why there should be a right of privacy when they have gone and essentially put themselves out there in the public eye by attending this event or doing something else that would make it more likely that their picture was going to be taken. So something like that, they could still potentially put forward some kind of argument, but their case would be a lot weaker when the photo is about the event and not so much about the person.
[00:18:53] Matty: And if you're looking through a site like, even Shutterstock, Unsplash, any site, and let's say you see a series of photographs of a person that's exactly, looks exactly like your book's protagonist and you want to use them on the cover, are there any steps you can take to have the appropriate agreements in place, not only with the photographer but with the subject, in order to be able to go ahead with that?
[00:19:17] Kelley: Well, hopefully if it's on a place like Shutterstock, the photographer got a release from the person that was the subject of the photo that allowed them to use that. But if you want to confirm that, I'd say probably be a good idea to look at Shutterstock's terms of use or whatever other materials they have available for seeing if there's some kind of vetting process to make sure that when you have a photo of people, that the people's permission was granted before the photo was posted.
[00:19:47] What I've heard of being an issue in the past is like social media, like Instagram or Facebook, where people post photos, and then they find those photos being used somewhere else, like in somebody's marketing materials or something. And then it's a little trickier because they're like, wait a minute, I didn't give permission. But when you look at those social media sites, part of their terms of use is that when you post pictures on their site, they have rights to the picture. Which may or may not cover granting a license to some other venue. So maybe that's included, maybe that's not, I'd have to check the terms of use. But it does mean that you lose a certain amount of control when you post it on a public venue like that.
[00:20:31] Matty: Wrapping up the part of the conversation about images, are there different levels of strictness about use of an image on a book cover versus use of an image, for example, on promotional material?
[00:20:41] Kelley: So I'm not aware of a large difference, just that when it's marketing materials or anything where you're trying to make money basically from the photograph, then they're going to look at it a bit more closely. For example, when they're looking at fair use to decide whether or not your use falls under the fair use paradigm, one of the things that they look at is whether or not it's a commercial use and whether it's tied into making money in some fashion or other. So if you're trying to make money, either from the photo or using the photo as part of the process of making money, then they're going to look at that more closely and that'll weigh against it being fair use if that's the case.
[00:21:30] Matty: That kind of leads into the social media question because my books are set in my area, Philadelphia, or in Mount Desert Island, Maine, or in Sedona, Arizona, and so I have a lot of that kind of stuff coming across my Facebook feed, and if I saw one that I like, oftentimes I would post it to my author page and say, you know, Oak Creek Canyon is where Lizzy has her showdown with a bad guy. And I actually was contacted by one of the Philadelphia area sites, and they were very nice about it, they said, we don't want our pictures used for money-making purposes. And they didn't even ask me to take it down. I went ahead and took it down. But you know, they said just FYI for future use. I must admit I didn't research it. It's not like I went and looked into any caveats that they had on their Facebook page, but any guidelines for people who are sharing social media posts for promotional purposes?
[00:22:31] Kelley: I think that if you're going to be using material from somebody else's social media feed, I think the best practice would be to actually get permission from that person before you post it, just to make sure that you're in the clear. Because when it's posted online like that in a public forum, you can argue that there's some sort of implied license there where they're allowing other people to make use of it, but it's tricky. You're getting yourself into a bit of a gray area where there's an argument either way.
[00:23:03] So if you want to make sure that it's clear cut and you're definitely not going to get in trouble, I would recommend actually reaching out to whoever posted it to see if it was okay to repost or link back or whatever it is that you want to do to make sure that they're okay with it.
[00:23:18] Matty: And what if it's a large organization, let's say AAA, for some reason AAA posts lots of beautiful photographs of Arizona that I always want to share. Should I try to get in touch with somebody at AAA before I share those?
[00:23:33] Kelley: I think it wouldn't hurt. They're a big enough organization that they probably have somebody that deals with these kinds of rights and permissions questions. So I don't see why it would be a bad idea if you can actually find that contact information to reach out and see if it is all right if I use this, this is what I want to use it for. I'm happy to link back and give you credit. Would that be okay? And see how they respond. And I suppose the downside of if you wanted to do that approach is it's always possible that either they'll say outright, no, or they'll want money in order to do that. So that's the risk that you're taking, but as with any gamble you have the risk, but you also have a better payoff where if they say yes, then you're golden.
[00:24:15] Matty: Right. And I suppose another way to accommodate it is that I am continuing to share photographs from this Philadelphia area site on my Facebook feed, but I don't use them as promotional material. At this point, people who are following me on Facebook probably know that I'm from the Philadelphia area, and I'll just say, look at this beautiful picture of Boathouse Row, and I'm not saying, which shows up in Book 4. I'm just sharing it and that site at least doesn't have any concern about that. In fact, they like that because they're trying to get word out about their site. So if you're strictly sharing it and you're not trying to monetize it, is that a fairly safe thing to do if they have their permission set so that it's shareable.
[00:24:55] Kelley: So it really depends on who it is that you're asking. Some people are more okay with it than others. So for example, Disney is extremely proprietary of their content. So I would recommend against doing anything related to Disney without their express permission, because if you do anything Disney related without their permission, odds are pretty good they're going to track you down and they're going to tell you that you can't do that. Whereas there are others who are like, yeah, sure, go ahead, sounds great. So a lot of it just depends on who it is that you're talking to and what it is that you're going to be doing.
[00:25:31] Matty: Any other tips that you would want to share about images before we move on to music?
[00:25:38] Kelley: So I would just add that for sites like AAA or other sites where they tend to have a lot of picture content, you might want to check their website to see if they just have some kind of general license out there to allow people to use things without contacting them. There are some sites out there that do things like that.
[00:25:58] For example, if you wanted to make quotes from Bible translations that are still under copyright, for example, that's a very common request. A lot of those websites for those Bible translations actually have a whole webpage just devoted to here's when you can just go ahead and use it without having to contact us, all we ask is you do XYZ. And if you want to do something outside of these uses, then you do have to contact us. But if you just stay within these guidelines, then you're free and clear and go ahead.
[00:26:27] Matty: I guess the other thing I'm thinking of is if I were better organized, I would stockpile my own photographs when I'm at these locations, because I think that would be intrinsically more interesting to people. They might not be as beautiful as photographs taken by a professional photographer, but I think people really enjoy seeing, here I am having a lobster in Southwest Harbor, or those ones that are more personal, I think you might get more promotional bang for the buck anyway. And it's your picture, so nobody's going to complain about it.
[00:26:54] Kelley: Yeah, that is definitely a very safe way to go is just take the picture yourself and then you don't have to worry about a copyright holder saying, Hey, wait a minute, what are you doing?
[00:27:03] Matty: Any considerations considering what the picture is of? So if you take a picture of the front of a store, for example, is that safe?
[00:27:14] Kelley: Some architecture designs that are technically under copyright, and that's not quite my area of expertise, but I think if I remember correctly, if it's viewable to the public, then it's a free for people to take a picture of, but I'd have to research that to confirm it. But I believe that's the rule. So yeah, like a public storefront. I don't think that they could claim copyright infringement for taking a picture of a public storefront.
[00:27:40] Matty: So moving on to music, I'm particularly interested in this because I just finished a short story that references a band name and a song title. So my understanding is band name and song titles are probably okay, but lyrics are probably not. Can you comment on just in the music world, what is and isn't safe to reference in the content of a book.
[00:28:02] Kelley: So a band name or a song title, those are not covered under copyright. So they cannot claim any kind of copyright rights to the band name or the song title. There might possibly be a trademark thing, but it's generally considered fair use under trademark law if you are just referencing the actual thing that's being trademarked. So for example, the band name, you are quite accurately saying that the band name is the creator of this particular song, and that would be considered fair use of the trademark because you are accurately describing where it came from. So something like that would probably be fine.
[00:28:40] Lyrics are a bit trickier because lyrics are covered under copyright law. And I've heard a lot of things about, oh 10% or just do four lines and you're fine. And I have to say there's unfortunately no hard, clear rule about how much is too much. So obviously the less that you take, the less likely it is that they're going to care and come after you.
[00:29:06] So there is some truth in that, but there's no exact rules saying that this much but no more is fine. So you can take a small amount of music lyrics, but again, you've got to be very careful because the more you take, the more likely it is that if they find out about it, they're going to have an issue with it.
[00:29:26] Matty: I think that music lyrics are so tricky because so often music lyrics will be the trigger for someone to want to write something, or at least ties in so nicely to a scene that the author is tempted to use them. Do you have any tips for, if someone really feels strongly that they want to quote lyrics, how they would go about trying to get approval for doing that?
[00:29:49] Kelley: I think that if they do want to use an extended section of lyrics, then yes, they do definitely want to go about getting permission from the copyright owner. As far as how to go about doing that, I would imagine there's probably a database out there to make that sort of thing easier, but I'm not quite sure. As I said, most of my experiences with actual books, like book contracts and things of that nature. So I haven't had to go about doing that personally. So I don't know exactly what tips or tricks would make that easier. Just that that would be the process that you would want to pursue if you want to do that. You definitely want their permission if you're going to be doing multiple verses, for example, out of a song.
[00:30:35] Matty: A couple of years ago, number of years ago now, I wanted to use a quote from T. H. White's THE SWORD IN THE STONE as the epigraph of the book. And I spent quite a bit of time tracking down the rights holder. And it was hard because the rights holder that was listed in the front of my very old book of THE SWORD IN THE STONE, those rights had passed on to other organizations and ended up being a Big Five publisher who now held the rights.
[00:31:03] And so I got in touch with them. And I said, what would I need to do in order to use this? And they were willing to license it to me, but the interesting thing was that it was for a specific period of time and for specific markets. So they said, this much for the US market and this much for everywhere else over this period of time. And I said, okay, the rights you want for the US market are more than I'm ever going to make from the book in its entire life. But I wrote back and I said, oh, sorry, that's a little rich for my blood. And they wrote back and they offered me a lower price. Now it was still too much. It was not only too much from a money point of view, but it was too much because the logistics of keeping track and then remembering to re up at the end of the time, it was just a mess. I didn't want the quote that much. But it was interesting that even a big publisher like that was willing to negotiate with an indy.
[00:31:54] Kelley: Yeah. Yeah. You'd be surprised how many people are willing to do negotiations and just picking up on a couple of things that you said, when you were trying to track down the current copyright holder, did you check the Copyright Office Database?
[00:32:07] Matty: I can't remember anymore how I eventually found out who it was.
[00:32:11] Kelley: Yeah, yeah. Because you're supposed to update the copyright when the copyright changes ownership. Not that everybody does. Nobody's going to get punished for not doing it, but that's the best practice what you are supposed to do. So if you're trying to track down a copyright holder, the Copyright Office Database is a good place just to start looking.
[00:32:31] And then the other thing that occurred to me when you were talking is I'm aware of a website, copyright.com, that has a lot of book titles on it, where it was just a standardized license where you just look up the book and you can buy a standard license for a flat fee. And that tells you what specific uses you can use the book for. So maybe the book that you're looking for is on there, maybe it's not, but that's another spot that you can look at if you're trying to get a quote out of a book or something of that nature and might be worth looking into.
[00:33:03] Matty: The other question I wanted to ask about music is we've been talking a little bit about music within the content of a book. How about music for promotional purposes? Like making a book trailer.
[00:33:14] Kelley: Oh, yeah, that's definitely interesting. And again, you want to get permission, if you can. For recorded music, there are several organizations out there, they're more radio and things, but I don't know, and you might want to look into whether they give permission for a specific works. You have BMI is one of them. ASCAP is another one. And there's a third one. That's not as big as those two. I'm forgetting its name < SESAC is the third big player for music rights>, but those three are the big players. Pretty much every piece of music that is distributed in the United States probably has a license through one of them. Because they just monitor everything and then they make it a lot easier to collect royalties for playing those particular songs.
[00:34:00] So if you're having trouble tracking down the actual copyright holder themselves, you might want to look and see if it's registered with one of those three groups and see if there's a license that you can get through one of those groups.
[00:34:13] Matty: I know that the only two times I've needed music are for the intro and outro of the podcast. And if Shutterstock has a music arm, it was like Shutterstock, except for music. You could go on, you could, purchase the rights to the song. And it's nice because you usually get several variations. You get the long variation, and you get like little snippets of different variations. And so I imagine that any music I wanted to put to any promotion related to The Indy Author, I would have the material there because I have several minutes worth of music. I'm never going to need more than a couple of seconds at a time. And it's a benefit to have it be consistent because then you have this branding benefit. And that people, I think for most of the promotions that the listeners of this podcast are going to be doing, you shouldn't rush out and get a new piece of music every time you want to put together a new trailer or commercial. And I think the same is true, I have the Ann Kinnear music and whenever I make a trailer, I'm using the Ann Kinnear music and it saves me time and money.
[00:35:10] Kelley: Yeah, that's a great way to go. If there's a musical version of Shutterstock, I think that is an excellent resource.
[00:35:16] Matty: One of the things I wanted to talk about, and this is a bigger question of content is this concept of Creative Commons, and I'm not sure I fully understand this. Can you describe what Creative Commons is and what rights that enables?
[00:35:31] Kelley: So the idea behind the Creative Commons is the creators of that felt that they didn't really like the copyright laws as they are now. They felt that they were too restrictive and that this copyrightable content ought to be free and free for other people to use. So they created this idea of the Creative Commons, which basically is that copyright owners can put their work out there with a standardized license saying it's free for other people to use. And Creative Commons has several different types of licenses depending on what it is that you're willing to let other people do with it.
[00:36:09] But the idea is, yes, I have a copyright, but I'm still just giving this away under these particular conditions, whether that's it's free for anybody anywhere, anytime, anything, or whether it's you can use this as long as you're not making money off of it. So there's a few different varieties. So that's basically the concept is these copyright owners are essentially waiving their rights to their copyright to their work.
[00:36:33] Matty: So if I were working on a cover design for THE FALCON AND THE OWL, one of the Ann Kinnear books, could I go to the Creative Commons website and search for owl, and then whatever showed up there, I knew that I would be able to use free and clear?
[00:36:48] Kelley: Yeah, absolutely, you can do that. They have a search engine specifically for that purpose, and I think you can even filter it for commercial versus non-commercial use, since as I said they have a non-commercial license and a commercial license in the Creative Commons. So that is absolutely a good way to go.
[00:37:04] And you could even go to Google, and you could filter for photos that have been tagged for commercial use as well, and find a photo that way. Although I found that the content that's been tagged for commercial reuse on Google doesn't tend to be the greatest, but it's still an avenue that you could go through to find work that's been tagged as free to use.
[00:37:25] Matty: And then can you also describe what is meant by public domain work?
[00:37:30] Kelley: So public domain, basically, it's a term to cover anything that could have a copyright but does not. So if it had a copyright in the past, but that copyright has now expired or if it never had a copyright for whatever reason at all, anything that falls under those categories of not currently having a copyright, all of that is part of what's called the public domain. The idea of it as the public domain, it's in a place where the public is free to use it for anything, anytime, anywhere. There is no copyright attached to it whatsoever.
[00:38:08] Matty: One of the things that I thought was interesting is that because my Ann Kinnear books and short stories, the titles are all based on Shakespeare quotes, I spend a lot of time searching Shakespeare quotes. And in the process of doing that, I found lots and lots of versions of Shakespeare works. And I'm assuming it's because someone could legitimately take ROMEO AND JULIET and put it out there and create a new book out of it. Maybe they make a beautiful cover for it. And they're using the Shakespeare text as the content, but it's the presentation of it. But I don't hear people talking about that that much in the indy publishing community. Is that something that you have exposure to, and is what I'm describing actual legitimate use of that material?
[00:38:56] Kelley: So Shakespeare is definitely public domain. If it ever had a copyright, that copyright is long gone. So anyone can use Shakespeare for any purpose whatsoever. So if someone wanted to publish a new book that has the exact text as it originally appeared and just republish that, they're free to do so they don't need to get a license from anybody to do that. But they also don't have a copyright to any of that material, unless it is something new and creative that they came up with in the process of creating and publishing this book. They don't have any rights to the old content where the copyright had already expired.
[00:39:35] Matty: I'm going to switch to a different example, which you had mentioned: Bible translations.
[00:39:40] Kelley: The King James Bible is interesting because in America, there is no copyright to the King James Bible. So in America, you are free to use the King James Bible quotations without having to get a license from anybody. But, in Britain it is still under copyright because it's under a Royal copyright because it's the King James Bible. So that particular one is interesting. But yeah, in America you're free to use King James without any repercussions. But more modern translations like the ESV or the NIV, those translations are more recent and so those do still have copyright on them. And you would need to get permission if it didn't fall within those uses that their websites said are okay without having to reach out.
[00:40:25] Matty: If there is someone who is, let's say an illustrator and they want to put out a book, they don't really want to write the story, but they want to do illustrations for it, is there somewhere they could go and say, let's say fairy tales, they want to do an illustrated version of a fairy tale, and they want to be sure that they're using a public domain version of the text of the fairy tale. How would they go about finding that?
[00:40:49] Kelley: So that would be interesting. Basically the way it stands right now is that anything that was published before 1926 has no copyright in America. If it ever had a copyright, it's expired. So that would be the cutoff. So if you were able to find something, for example, a book of fairy tales that was published in 1915, then the fact that it was published in 1915 means that everything in it is public domain. There is no copyright. So that would be a good way to go about it is finding something that was definitively published prior to 1926.
[00:41:25] Matty: And if you then wanted to publish that, let's say, in the UK, do you have to do a separate search to decide whether it's permissible to publish it in the UK?
[00:41:35] Kelley: It would probably be a good idea if you're publishing it in the UK to talk to somebody who's familiar with UK copyright laws, just because their laws are pretty similar. I think they're also a party to an international copyright convention, so the copyright laws should have some strong similarities to America's, but there are still some differences that you probably want to be aware of if you're publishing it in the UK.
[00:42:01] As I said, King James is an exception because it has a special copyright that doesn't actually expire. Other than that, copyright in the UK does actually have an expiration date as well. It would just be a question of what that expiration date is, and if the particular work you're looking at might have some exception apply to it.
[00:42:21] Matty: Are there any other resources you would recommend if people are contemplating any of this and they're not legal professionals, but they want a kind of an entree to understanding some of this terminology and rights.
[00:42:33] Kelley: So the Copyright Office actually has a lot of circulars where they try to explain some of these copyright concepts to people. So that's one place that you could look. I would also recommend my website. You know, I have videos and blog articles where I try to explain these commonly asked questions and these issues that come up on a regular basis. So you're free to look at those resources as well, to try to get a better sense of these things and how they work. And otherwise just talk to someone knowledgeable and see if they're able to explain it to you in a way that you're able to understand.
[00:43:11] Matty: So Kelley, let people know where that website is and other places they can find you online.
[00:43:16] Kelley: Sure. So my website is kawaylaw.com. And I have a whole page that's just videos. And I have a page devoted to my blog articles. And if someone were to reach out to me personally, my email is [email protected]. And again, if it's something where it's just a basic question with an easy to answer, I'm happy to just shoot off a response. If it's something more complicated, like, here's my messy issue, what do I do? Something like that, I would need to actually do some kind of paid consultation. But if it's just an easy question, like what is a copyright, then I can direct you to a video or give you a simple answer.
[00:43:59] Matty: Yeah. And I'm going to repeat a great piece of advice that one of my other guests, Jerri Williams, mentioned which is, don't contact the person unless you've exhausted the resources that they make publicly available. So don't pose a question that the person's going to say, that's in the first video on my YouTube channel. Look around and see what they're having to offer, and then perhaps contact them for a more detailed clarification to use everybody's time efficiently.
[00:44:25] Kelley: I also have a YouTube channel.
[00:44:27] Kelley: And where would they go to find that? So it's on YouTube, but the channel is just Law Office of Kelley A Way. So it should be easy to find. At this point, I only have a few videos up and I'm working on more. I have a few more in the pipeline. So if you just keep an eye on it, I hope to have several videos out that answer some very common questions that I hear a lot.
[00:44:48] Matty: Great. Well, Kelley, thank you so much. I appreciate you being so patient with me peppering you with legal questions.
[00:44:54] Kelley: Thanks again for inviting me.
[00:44:55] Matty: My pleasure. Thank you.
Links
Law Office of Kelley A. Way YouTube channel - https://www.youtube.com/channel/UC_CBZdIJWT9CthtY6oyWvnA
Public Records System page - https://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi
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