Who Owns What?

Not those dudes

Hi friends,

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THIS IS A BIG DISCLAIMER! I AM NOT A LAWYER! THIS IS NOT LEGAL ADVICE. IF YOU HAVE A QUESTION ABOUT YOUR OWN STUFF/PLANS, YOU SHOULD ASK AN ACTUAL INTELLECTUAL PROPERTY LAWYER.

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You might have heard about this group of people who bought a copy of a book at an auction and thus thought they owned the copyright and intellectual property of said book. It was a LOT of money, almost three million dollars. And the book was a rare art book about a never-made sequel to the movie DUNE. This group of people, who formed a DAO, a decentralized autonomous organization, or “an internet community with a bank account,” were very, very exited about this book! They were going to make so many things out of it!

Spice DAO (🏜,🏜) @TheSpiceDAO

We won the auction for €2.66M. Now our mission is to: 1. Make the book public (to the extent permitted by law) 2. Produce an original animated limited series inspired by the book and sell it to a streaming service 3. Support derivative projects from the community

Except!!! They don’t own anything but the physical copy of the book. Apparently, no one checked with an IP lawyer about this. Maybe because they thought it was out of print (it’s a limited edition! which is not the same thing as out of print!) that it was public domain? (Out of print does not equal public domain!) Either way, they were wrong and now they have a book, and they hope they can do something with it.

This is a very extreme case of getting copyright/IP wrong. (Don’t forget, IANAL.) But I see variations of it everyday. Way back when in the early internet days, people thought that if a picture, say of a cat, was online, then it was “fair use” and they could do what they wanted with it. In some ways, that is true. You could download it and put funny words on it and upload it again. But you don’t own it. You can’t sell it. You can’t make a movie out of it. If you want to, you have to ask the owner’s permission. Who owns cat pictures on the internet? Most times the person who took the picture. And that’s not an easy thing to find.

“Fair use” is not what you think it is, either. It doesn’t mean you can use a “little bit” of something any way you want and not ask permission. There is no hard and fast definition of a “little bit.” You can quote things, especially under the guise of “criticism, comment, news reporting, teaching, scholarship, and research,” but there’s nothing that says 25 words ok, 50 words not ok. Song lyrics and lines of poetry are treated much differently than a paragraph from a book. You can say “I like Star Trek more than Star Wars” or “she drank a Coke” in your book, but you can’t make a soda in a red can and call it Moke. (Trademarks and copyrights are two different things but you get it.)

But what about all those fairy tale retellings? you might ask. Look at the age of the original text. It’s likely in the public domain. Didn’t you hear that The Great Gatsby entered the public domain a few years ago? Wild! You can do your Gatsby retelling to your heart’s content. But there have already been a couple so ¯\_(ツ)_/¯. Peter Pan, Alice in Wonderland, and Dante’s Inferno are the most common retellings I see in my inbox. If that’s your plan, I might suggest finding some other public domain ur-text.

But what about all those people who write Star Wars books? Those are officially licensed work for hire books and if you look at the copyright page, you will see who owns the work. It is most likely NOT the author on the front of the cover. It’s almost certainly LucasFilm or whoever. The rights holder gave the publisher permission to find an author to write a thing. It usually works in that direction, too, not the other way around. If you are shopping your SW story to agents hoping they can help you get permission to do it, that’s going to be an uphill climb. It’s not impossible but it’s rare.

Never forget, that in the US, anyone can sue you for any reason, anytime. (TINLA) You don’t have to be doing something wrong to get in trouble. (Ain’t it grand?) If a rights holder sees your work and thinks it’s too close to their work, they can tell you to stop. If you want to keep going, you will likely have to hire a lawyer to argue this for you, whether it goes to court or not. The publisher does not pay for this sort of thing. When you sign a book contract, you are promising the publisher you didn’t steal it from anyone and if you don’t own it, you have permission to use it. If a publisher thinks your book is too close to someone else’s IP, they might reject it (at the submission stage). No one wants to involve the lawyers. There are lawyers out there whose sole job is to make sure other people are not infringing on their clients’ IP. There are many, many, many arguments to make that current copyright law is not fair, but fair has nothing to do with it at this point. If you created the most popular character in the world, would you want people making money off your idea?

Thank you for reading this very much NOT LEGAL ADVICE newsletter. I hope it inspired you to create the next most popular character in the world. There are many, many more aspects to this issue than discussed here, but I hope you all now know that just because you bought a physical book doesn’t mean you own the underlying intellectual property.

XOXOXOXOXOXOX,

Kate