Authors, beware of Amazon’s Copyright Grab!

My publisher recently received a notice from Amazon suggesting the idea of giving away copies of my two books, Amalfi Blue and Shrouded in Pompei.  Amazon’s angle was to increase sales and allow me to promote my books across social media platforms.  No purchase was necessary by the entrant and it’s not really clear who was paying for the cost of the prizes.  Certainly, I was not going to receive money if nothing was being sold.

OK, the free giveaway sounds good so far, right?  Wrong.  If it sounds too good to be true, it generally is!  Lucky for me, I happen to be a really good lawyer and cherish my creative copyrights because the red siren of doom sounded as soon as I read the fine print in Amazon’s Giveaway Services Agreement.

To the uninitiated laymen…you’re screwed if you use Amazon’s Giveaway…in my humble opinion.  Look at the Definitions section.  Amazon defines “Your Material” as “all Technology, Your Trademarks, Content, information, data, photographs, images, videos and other materials and items provided or made available by you or your Affiliates to Amazon or its Affiliates.”

CopyrightThen scroll up to Paragraph 5 and check what type of license you are granting to Amazon:

“You grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, excerpt, analyze, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of Your Materials, and to sublicense the foregoing rights; provided that nothing in this Agreement will prevent or impair our right to use Your Materials without your consent to the extent that such use is allowable without a license from you or your Affiliates under applicable Law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).”

So why does this scream – “put on the brakes?”

  1. Royalty free – that means they don’t have to pay you to use your creative material or content.
  2. Create derivative works – that means they can make a movie or merchandise your characters when the book is a bestseller…again without paying you any royalties.
  3. Sublicense the foregoing rights – that means they can sell your rights, now their rights, to any third party

It amazes me how Amazon continually tries to exploit independent authors who have become the lifeblood of their Kindle revenue stream.  Writers, always, always read the fine print of any Terms & Conditions before signing up for anything that sounds just too good to be true.  You risk giving away your intellectual property rights for a free book giveaway!

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Digital Estate Planning

In death you can only leave so much of what you owned during life.  Basically, if you don’t own it at death then you can’t pass it along to your grateful heirs.  I didn’t really think much about it until today when the lovely Lynda Baquero from News 4NY dropped by to chat about it. (look for the interview on News 4 NY in a few weeks)

So much of our lives are lived online yet rarely do we think about what will happen to our cyber lives once we go to the great social network in the sky.  Do you really own all that you seem to buy?  Not quite.

Illustration courtesy:  Stuart Miles/FreeDigitalPhotos.net

Illustration courtesy: Stuart Miles/FreeDigitalPhotos.net

When you purchase and eBook, song or movie from an online provider as a digital download, you DO NOT OWN the book, tune or flick.  You merely pay for a license to use it during your life and are not bestowed with the right to assign/give it to anyone else.  Surprise!  Bet many of you didn’t know that.  It’s not the same as back in the days of the Frick Collection or Rockefeller Library when big collections meant something and were valuable.

The files you download to your device will generally remain with your device, some as long as the account remains viable and others remain on the device indefinitely.  Yet, read the fine print, the terms and conditions of purchase.  You can’t pass that content to anyone else so if you give a fully loaded old Kindle to your niece or friend, it’s questionable whether you have the right to do so.  Sure, you can give them the physical object of the device itself but you probably don’t have the right to pass its contents to anyone else.

Therefore, the short answer is that when you die, so does your right to any of these digital files, meaning you cannot pass them along in your will.  On the other hand, if you owned actual books and discs at your death, you could bequeath those by the truckload.

We live in an electronic age when the only thing that has changed is how we share information.  The actual task of estate planning is still the same and as painful for most people who shudder at facing their own mortality.

So, what do you do with your cyberlife, social connections, photos and more?  We’ll tackle that next week.

Digital Fingerprints on Your Copyright

I haven’t written here in awhile because as some may know, I am busy selling my first book, “Amalfi Blue, lost & found in the south of Italy,” Over on Kickstarter. (Just 4 days left over there so run now).  Also, with so many irons in the writing well, to cross-pollinate puns, the lines often blur between ex-rock journalist, network reporter, travel concierge, author and entertainment attorney, whew!  How do I sleep?

Anyway, while thinking about the book while driving this AM (there is no law against thinking while driving yet!), it dawned on me that the old school method of “poor man’s copyright” for a creative work may actually be obsolete when it comes to protecting intellectual property.

Back in the day, my musician and writer friends would send a tape/disc or printout of their creation to themselves by registered mail, return receipt.  All of the post clerks knew what to do.  They would even direct the novice artists who used the wrong envelopes, etc.

Well, when I went to mail a copy of “Amalfi Blue” to myself last week, the postal clerk didn’t know what to do and I had to instruct her.  Then it dawned on me that every thing we do on our computers, EVERYTHING, has a digital fingerprint, so is the “poor man’s copyright” necessary any longer?

It was called such because it was a way to “prove” you created something at some point in time without actually registering it at the U.S. copyright office, thereby saving the fees for the “poor man.”  In actuality, even registering something at the Copyright Office doesn’t prove date of creation in a court of law.  It only proves who was smart enough to document it first.

Image courtesy: Renjith Krsihnan/FreeDigitalPhotos.net

Therefore, if every digital file is date-stamped by your computer and every transaction can be digitally traced across the ethers, perhaps the new “poor man” copyright is even more economical.  Maybe it’s as easy, and as free, as simply emailing your creative file to yourself and saving a copy of the email.  True, there is no date stamp from a governmental agency but when the governmental workers no longer recognize the process once used to protect artistic works.  Maybe it’s time for poor artists to rest their faith in the ethers.

I haven’t researched case law on this issue but it would be interesting to see if this has been used in a copyright challenge in court?  Anyone know?

NOTE:  Writer here would truly appreciate any comments here from digital forensic experts.