The New Paranoia

I have friends who practice ultra-safe computing when crossing borders: examine their computers and you'll find yourself on something almost data-free, so you'd not be looking at encrypted files, you'd simply not be looking at files -- the same kinds of things that Cory Doctorow describes in Little Brother.

And I've always thought they were being, well, silly.

And then I read, in the LA Times, an article that began:

Authorities need a search warrant to get at a computer in your home, and reasonable suspicion that you're up to no good to search your laptop in other places (like if you're surfing bomb-making sites while using WiFi at a coffee shop).

But the rules change when you're crossing the border back into the United States. And that has raised concerns from business travelers, privacy advocates and some lawmakers about the vulnerability of the huge amounts of information people carry on their laptops and other digital devices.

The legality of the practice hinges around whether searching a laptop is the equivalent of looking in your luggage, or more like a strip search.

U.S. Courts have ruled, as recently as this spring in a case stemming from a search at LAX, that there's no need for warrants or suspicions when a person is seeking to enter the country because any "routine search" is reasonable under the Fourth Amendment. In effect, it's like luggage: anything and everything in your laptop, cellphone, BlackBerry or digital camera can be examined and copied by U.S. Customs and Border Protection agents.

And also copy any songs or films from my iPod, I assume...

Which leaves me going "Yes. And customs has the right to inspect a book I'm reading, but not the right to make a copy of the book. Why would they have the right to copy my data?" It seems deeply wrong. Or like I may, at least in the world of computing, find myself joining the ranks of the friends I always thought were maybe just an eensy weensy little bit paranoid.

Hi Neil! I see you answered this person's question if you're going anywhere else here in Brazil other then Paraty.

And you also said that you have to wait and see if you will be able to do a book signing or not. Well I called Casa Azul (the institution that is organizing the FLIP event) and they said that it is up to each author if they want to have a book signig section or not after they lecture, and a book signing booth will be set up and ready for the authors who agree.

So the main thing is, since it is up to you I would like to know if you will agree on having a book signing/meet and greet, for it will be the only reason for me to travel so far, so I can meet one of my idols.

Hope to see you there!

xoxox

Marie
If it's up to me, then I'm sure I'll be doing a signing.

A few weeks ago I bought tickets for your night in Tulsa, OK. Today, as I went to search again for dates, I'm seeing rumors that the event has been cancelled. All traces of this event have been removed from Mammoth comic's website and Neilgaiman.com. Am I missing something here? Is the FBI reprogramming my memory? Or, quite simply, is the event cancelled. Why am I the last to know these things? Anyway, hope you're having a lovely day and I will have to send my copy of American Gods to you to be signed. It is a very special copy you know, belonged to my late best friend, Adam. Goodness, I'm rambling...good evening.


Jaclyn Long

It was definitely cancelled, I'm afraid. I'm astonished that Mammoth Comics have simply vanished any mention of it, rather than putting up information to let people know that it was cancelled, and to make it easy for any tickets to be refunded. When I was told that the event had been cancelled I was also told that they'd make sure that people knew and that it would be made easy for people to refund their tickets... [Edit to add -- Shawn from Mammoth Comics got in touch and it looks like it's a bit messier than that, and some of the mess seems to have come from the people representing me. But now I know that there's a communications breakdown, it'll get sorted.]

Sorry that it's not up as a cancelled event at the Where's Neil address, it was meant to have been. (I really, really miss the old blog system of Where's Neil. It drove everyone else mad, especially the folk running the website, but it meant that events didn't simply vanish once they'd happened, and it was easy for information to go up and hang around.)

Brief Trademark Ponders

A few interesting links related to Trademarks (not to be confused with copyright, but people do, and so do I). For example, the Open Rights Group (of which, last time I looked, I was Patron, but I don't have to do anything except be on the letterhead and possibly make the cucumber sandwiches) posted http://www.openrightsgroup.org/2008/05/08/bbc-removes-doctor-who-fans-knitting-patterns-from-the-web/ -- the story of a fan who was told by the BBC to take down the Dr Who knitting patterns from her website. Interestingly, the Head of Communications at the BBC left a message on the ORG blog, and amplified it on the BBC news site, pointing out that their problem was not with the creator but with the people who were taking her designs, making the toys, and selling them on eBay.

One commenter said, My own opinion is that the BBC would be correct to target Ebay sellers and anyone attempting to make a profit from their intellectual property, as is their right. Unfortunately rather than do this actively, they have chosen the easy option of attacking a person whose only ‘crime’ is she has the imagination and flare to design knitted patterns and make them available not for profit, based on Dr Who characters...

Which was the last thing I read before reading this Boing-Boing article, this Beat coverage, and this follow-up blog posting from the person who was running the ebay auction: Warner Brothers lawyers closed down a children's cancer charity eBay auction because it was selling original Superman drawings...

And mostly, I'm just glad that I'm not a corporate trademark lawyer.

(Also, I think -- and have thought for about 17 years, ever since the Comic Relief Comic problems -- that Warner Corporate needs to change its policies with regards to DC Comics and charities and allow DC Comics as much latitude as, say, Marvel. But it hasn't happened yet.)

Pajamablog

Running for a plane....

Dear Neil,

I've been thinking about the Siegel & Shuster families regaining the rights to Superman, and it raised some questions to which I can't find ready answers and thought you might have.

(I'll use your works as illustrative points since you know what rights you have to your works.)

If a character is created by more than one artist (Superman by Siegel & Shuster, Tim Hunter by yourself & Mr. Bolton), do both artists or their estates have the right to separately sell licensing, merchandising rights, etc? Could the Siegel estate sell the rights to a Superman movie to Fox, the Shuster estate sell the rights to a Superman movie to Universal and DC still make films with Warner? Also, do you have the rights to just the characters, or do you have the rights to sell the stories you wrote for, say, "Sandman" or another serial owned by another person or company?


It bothers me that there might be a potential for a David Niven "Casino Royale" situation with other characters of whom I'm fond, especially the Man of Steel.


Cheers!

-Kerwin

I think you mean "Thunderball" not "Casino Royale" -- the problem with "Casino Royale" IIRC was simply that someone else owned the film rights,and used them to make a parody after the bond films had become successful. Thunderball was co-written (started out as a film treatment with someone else, which Fleming then novelised, and the someone else sued and established that they co-owned the copyright on the treatment) which allowed "Never Say Never Again", which has the same plot, to be made...

The short answer is, Yes you do. And it's not as simple as that, because there's trademarks and suchlike to consider, and most the comics examples you're pointing at are Work For Hire and owned by the company.

Look over the Posner decision (which is up at http://www.projectposner.org/case/2004/360F3d644/ -- the link from two days ago seems to have died.) If I feel like licensing out a Medieval Spawn comic -- or Medieval Spawn underpants -- I can. It's co-created, not work for hire, and co-owned.

If DC Comics wished to avoid future problems with Superman and the estates of the creators, I cannot help feeling that, seeing DC knew what the law said, they should have done a sensible deal with the Shuster family in 1999, rather than forcing them to fight a nine-year law case. That way the Shusters go, "Thanks for the money, of course everything will stay like it is," rather than, "Eww. You people are nasty. Why did you make us fight for something that was ours? We'll go and talk to Marvel and Twentieth Century Fox about licensing a Superman movie." It's what I would have done, if I was DC and Warners anyway.

My assistant has just pointed out that I am leaving for a plane to Australia in 40 minutes and am blogging in pajamas so will I kindly back away from the keyboard...?

Only time for a quick link to the Neverwhere circus-play at http://www.actorsgymnasium.com/site/epage/46772_314.htm If you get to it, send a review and I'll try and post it or link to it...

Off to airport. But first -- clothes!

...

Later. Five minutes until I leave the house. I seem to have just destroyed one cell phone and lost the other, which means I may be buying a new one in Narita airport. Argh. Meanwhile, if you want to learn too much about an author and his notebook...

http://www.spacecast.com/interview_5239.aspx

the copyright one after the last one...

Pondering transformative copyright, I found myself thinking about this: http://nielsenhayden.com/makinglight/archives/009050.html#191539

It's Abi Sutherland's reworking/retelling/translation of my poem, The Day The Saucers Came, into LOLcat. I like it better than the original, but I'm not sure that it would work if it wasn't informed by the existence of the not-LOLcat one (if you see what I mean). (Here's me on YouTube reading the original at Yale: http://www.you tube.com/watch?v=JUkEPaN_BFY).

And two from the mailbag:

I am a lawyer. I co-authored an article on fair use that was published last summer in the Journal of the Copyright Society of the United States. A large section of it was a wordier version (punctuated by many many legal citations) of what you wrote in your journal today. In practice, the most important single factor in determining whether a fair use has occurred is not money, it is how transformative a work is. You have a good grasp of copyright.

Moreover, you have a good grasp of the trickiness of copyrighting derivative works. The legal answer regarding that King James concordance is that the person who owns the copyright owns a "weak" copyright. (The more original creativity in a work, the "stronger" the copyright. If this concordance is completely uncreative - if it is really just a list of words that a computer could generate - there is no copyright whatsoever. If, however, the author has organized the concordance in a way to show some creativity, there is a "weak" copyright.)

Unfortunately, in practice, a "weak" copyright is pretty strong when owned by a powerful company. For example, the woodcut illustrations in the original edition of Alice in Wonderland are in the public domain and have no copyright protection. Disney's depiction of Alice - clearly a cartoon version of the public domain woodcut Alice - is, however, copyrighted. Technically, this derivative work should be a "weak" copyright. However, when the video game Alice by American McGee came out, American McGee's Alice was a brunette who looked nothing like the Alice most people think of. American McGee should have been able to copy the public domain Alice, just like Disney did, but I assume that American McGee didn't want to risk taking on Disney. (That was probably not the only consideration that went into it - they probably also didn't want little kids buying the game by accident, either - but Disney's copyright in the derivative work must have been something they considered.)

I really appreciate the fact that, despite being a writer, you do not seem to have a rabid approach to copyright. I think many readers, who feel defensive on behalf of their favorite authors, don't understand the benefits of having copyrights that are not absolute and that expire. The creative sphere as a whole gains something from a public domain and fair use. (Author's heirs are often anything but open to creative reimaginings, or even creative criticisms, of a work - the highly litigious Margaret Mitchell estate comes to mind.) If our modern attitudes towards copyright had always existed, you would not have been able to freely quote Shakespeare (who never had copyright protection) in Sandman, and the story would have lost some of its richness. Similarly, it would be ridiculous if you had to have Rudyard Kipling's heirs sign off on The Graveyard Book. Copyrights should not be powerful to the point where they suppress new ideas or criticisms.

I very much look forward to The Graveyard Book.

- Anne

and also

Your latest blog entry about legal court cases inspired me to put up a bit of information on my personal blog that goes into aspects of the joint authorship elements of your case, and the transformative works issues that will be important in J.K. Rowlings'. If you are interested you can read it at: http://wise-old-sage.blog-city.com/gaiman_joint_authorship_and_transformative_works.htm

I did link to your posting so my readers could reference it. I hope you don't mind.

Christopher Schiller

http://www.christopherschiller.com

while Scrivener's Error pointed me at

http://scrivenerserror.blogspot.com/2007/11/accio-lawsuit.html
and the hypothesis that this is primarily a trademark, not a copyright case.

Neil,

Considering your latest encounter with a large metal pole, I got to thinking about health insurance. As an author and one who is more or less self-employed (right?), how do you go about getting decent health insurance not only for yourself but for your family? Wouldn't it be much easier to move to Canada or back to the UK where they are reasonable enough to have universal health care?

Thanks,

Jon


How? I write movies.

True answer, even though it sounds silly. As long as I have a certain amount of income coming in from Hollywood, I'm covered by the Writer's Guild which had very good Health Insurance when I became a member, and has significantly less good health insurance these days, but it's still an awful lot better than having no insurance for me or my family.

(Occasionally friends ask why I'll write movies -- they're a huge drain on time and emotion, most of the scripts one writes simply do not get made, and when they do get made it's all-too-often nothing like the thing that you thought you were writing, and unlike novels you've given up control from the outset, you can find yourself being lied to or fired or cheated, and while I make a lot of money writing scripts I make a lot more money writing books, which I own and control for ever, and from which I get foreign income, and so on. And I say "Health Insurance," and if they're from America they normally get it, while people from countries that regard healthcare as a human right, like education, think I'm mad.)

Why not move? I like my house, and my youngest daughter loves her school and friends (my older daughter has already moved back to the UK) and I'm happy to write an occasional movie and get healthcare as a side-effect. (Also, I quite like writing film-scripts. It's everything that goes with them I put up with.)

(Incidentally, the pole was a heavy PVC pipe,and not metal, I'm glad to say. Otherwise my face would have been far more banged up than it was. Right now the black eye's mostly gone, the nose has mostly healed, and there's a cut on the lip that would heal better if I didn't keep talking...)

...

Mark Buckingham and Shelly Bond and I have been plotting and planning over the last month. We've been planning a Sandman 20th Anniversary poster, with as many of the pencillers and inkers who drew Sandman as possible coming back to draw a character or two. We pondered a couple of different ways of doing it, decided that a party would best, and Mark laid out a party and where everyone would be...

Most of the forty-something artists on Sandman who are still alive and drawing said yes -- a handful were simply too busy (alas, no Matt Wagner or Michael Zulli) and there are a couple that we're hunting for.

But the first piece of art came in. It's from Sam Kieth, and is the first time he's drawn Morpheus professionally in, well, twenty years. (And the first time he's drawn Daniel, ever.)



I think it's going to be a fabulous poster.

a few final copyright thoughts before we leave the subject entirely

I ought to be proofreading The Graveyard Book. I used to love proofreading, but that was many a year ago now, especially as I have both the US and the UK versions to proof, so anything one of them picks up I have to consider for the other, and I have to read both versions back to back, not because they are different but to see what the copy editors did on different sides of the Atlantic. (Shakes head, ruefully...)

The May event at MIT isn't sold out, it's just the tickets were offered to MIT students/staff first. This according to friends of mine at Pandemonium and The Million Year Picnic, both of which are now selling tickets.

A quick Google gave me http://community.livejournal.com/millionyear/33091.html
with lots of information on the MIT event.

If you want to call to reserve tickets (617-492-6763), you must pick them up within 48 hours. No call-in reservations for tickets after May 14th. Four tickets maximum.

I've noticed you're on the speakers' list for the Children's Book Council Australia's conference in May. I was just curious if you'll have time to do a signing in between your two gigs.

If not at the CBCA, do you have plans to do one while in Melbourne this time around at all?

Thanks in advance

-S

If you click on WHERE'S NEIL it will take you to http://www.neilgaiman.com/where/ and you will learn about the three Melbourne, two Sydney and one Hobart events next week. And to answer some other frequently received questions, I do know that it's been twelve years since I was in Perth and a decade since I signed any books in New Zealand, yes. I am also aware that it is unfair on the people in Brisbane and Adelaide that I'm not signing there, and it's even harder on the people in Canberra because, having only one body and two potential locations it could be in, I picked Hobart (where I had not been for a decade) rather than Canberra (where I was in July 2005).

I am compelled, after reading your thoughts on the JK Rowling Lexicon case, to try to sort out in my head if it bears resemblance to your dealings with certain characters you created for MacFarlane's Spawn series. Obviously the cases are different, but I see vague similarities.

While it (the lexicon) existed only on his website, and no one was profiting from it, then I see no issue naturally. The minute it gets published in book form, he stands to make oodles of money from it. Let's face facts here, people would buy it in droves. In that case I feel that he either HAS her permission to do so, or does not. If he does not (which clearly he doesn't), then does it not put him in the wrong? Does he not require her permission to make money with characters and places and ideas she created? Should he not have approached her perhaps to begin with?


I just saw these vague similarities. I realize he is not taking the created characters and making new stories with then (ALA MacFarlane was doing), and taking credit.......it just seems wrong to me. If it's a poorly done book, then that reflects on, not only her, but her world as well doesn't it?


They're similar only, I suspect in that at the end of the day they aren't about the things that people (including the people who were involved in the litigation) thought they were about. I thought the McFarlane case was all about Creators' Rights, and trying to make Todd keep his promises, and his copyright filings claiming that he'd written the issues that I'd written, and all sorts of suchlike things. I think in Todd's mind it was all about proving that He Made His Rules And Was Really Tricky And Everybody had To Do What He Said, or something like that.

But really, in the end, in the appeal court, after the trial jury had delivered their verdict and I'd won all 17 counts on the case, it all came down mostly to this: does the clock start ticking on a copyright breach case when the breach is committed or when it's discovered. There's a three year statute of limitations on copyright claims. In 1996 Todd had filed his copyright claims , claiming to have written Spawn 9 and the Angela series, then three years later, in 1999, he let me know he wasn't going to honour any agreements he'd made with me for the stuff I'd created. Had my clock already run out? His lawyers were certain it had, and even some of my lawyers thought I was on shaky ground.

And the Posner legal decision at the Appeal was, essentially, nobody is expected to patrol the copyright office looking for breaches, and the clock only started ticking the moment I found out about it. (The whole Posner decision is up at http://www.ca7.uscourts.gov/tmp/CR1FGCDA.pdf and is really pretty interesting reading.)

In the Time-Warner-Rowling-Vander Ark case it's not about "is he making money from her ideas?" or "will this stop fan websites?" or any of that stuff that people are talking about on line. It doesn't matter from a legal perspective that Ms Rowling was doing or planning her own encyclopedia, or that the money is going to charity, or any of that stuff, although I'm sure Ms Rowling feels it does (because I would, if I were her).

As far as I can see it's only about a couple of really grey areas of copyright law -- I suspect, and I am SO not a lawyer, that it will come down to whether or not what Mr Vander Ark had done to Ms Rowling's work in his Lexicon was sufficiently "transformative" as to render it a new work.

There's an online annotation of Sandman. If the people who did it -- or if someone else -- decided to publish it, I couldn't stop them even if I didn't want it to come out, even if Les Klinger had finally persuaded me to get DC Comics to let him do an official Annotated Sandman. (Someone asked when Les's Annotated Dracula comes out -- it'll be in October 2008.) That's because it's obviously a transformative work -- it's based on my work, but it springs off from it.

If someone did a website in which everything in Sandman is listed in alphabetical order, as a concordance or lexicon... whether or not I was going to do one doesn't matter. Whether or not someone else is making money off my work and words and ideas doesn't matter. Whether it's a good lexicon or a bad lexicon doesn't matter. Whether it quotes me extensively may or may not matter (how extensively I'm quoted is a matter of Fair Use, but paraphrase me and you are home and dry on that count). What matters is whether it sufficiently transforms what I've done into something else by taking those entries and putting them into alphabetical order. How much original work is being done? The King James Bible is in the public domain. If you made a lexicon or concordance of the King James Bible, listing every person and place mentioned in there, something that would take you a lot of time -- you could copyright it. If someone copied it -- simply took your King James Bible Lexicon book and put their name on it -- could you sue them? Should you?

And, personalities aside, and all the newspaper commentary and most of the bloggage and online opinions, that's the kind of thing that this case will come down to in the end.

Hi Neil,

Like yourself, I am a fan of Harlan Ellison. However, as a feminist, I get really sick and tired of Ellison's misogyny.

I was wondering how you reconcile the fact that Ellison is your friend and an awesome writer with the fact that he can be really sexist. I'm especially curious because you have two daughters. (And one that went to a women's college! I went to Mount Holyoke, myself.) What do you tell them when Ellison makes denigrating remarks about women? I sincerely hope that you do more than merely laugh it off and regard it as "Harlan being Harlan." Even though he's funny as Hell, his attitude is really damaging. Besides, relying on sexist humor is beneath him and I really don't understand why he does it. I dislike it when Ellison claims to use such humor in a reclaimatory way. He's a white man -- he cannot reclaim sexism on the behalf of women.

I appreciate you taking the time to answer my question.

Best,

Emily Neal


You know, in my presence over the years Harlan has made some astoundingly denigrating remarks about studio executives, the Walt Disney company, a number of restaurants we've eaten in, several eastern European publishers, food in England, the English (except -- possibly, sometimes -- for me and his wife), editors, other publishers, a (male) science fiction critic, television producers, Fantagraphics, friends of mine, movie producers... the list goes on and on. When Harlan's rude about my friends in my presence I tend to point out they're my friends and he's being a twit, and he either looks shamefaced or he tells me I'm an idiot for liking so many people. There are lots of people, and some classes of people, like studio accountants, that Harlan has been less than civil about. I don't ever remember "women" as a class being on the list. (I remember him once being extremely rude about a female studio head, but that was in her role as a studio head, not in her capacity as a woman.) Which means I read your letter and I'm as puzzled as if it were asking how I can stand Harlan's attacks on people of colour, or the left-handed, or jazz musicians.

As for "Harlan being Harlan," I'm reminded of what the producer of the documentary Dreams With Sharp Teeth, Erik Nelson, said, when I told him that I thought the film was unbalanced, and he should interview some of Harlan's enemies. He said, "That's what Harlan said. I told him, 'Harlan, you're your own worst enemy'."

...

Off to Australia on Saturday...

oh good

This New York Times article is very good news, and was, I think, inevitable. In brief, a share in the copyright to Superman that should have returned to the creators, under laws that helped creators of art and music who had been ripped off when younger to regain a portion of the rights to their song or creation, has been deemed by a judge to have been returned to the heirs of Jerry Siegel, with Time Warner and DC Comics kicking and screaming all the way. (On the one hand, I can hardly blame them. On the other, the law was obviously the law, the conclusion was pretty much inevitable -- although I'm sure it's been an enormous relief to the family -- and I suspect the main purpose of the court case has been to put off the moment of reckoning as long as possible; not the moment of financial reckoning, because that clock started ticking in 1999, but the moment that the heirs to Superman could license Superman to entities other than DC Comics, which, as co-copyright holders, they are entitled to do. Marvel Comics publishing their own Superman comic, anyone?)

When I did something like this on a much smaller scale, I remember how much of a relief it was when the court awarded me my share in the characters I'd co-created. (I really ought to do something with it. Anyone want to publish an ANGELA comic? Or Medieval Spawn?)

It's traditional for newspapers to get Jerry Siegel and Joe Shuster's names wrong, but the New York Times photo caption Max Shuster, left, and Jerry Siegel, right, sold the rights to Superman in 1938 for $130 is a welcome variation on an old theme.

American Gods Blog, Post 15

Permissions... well, good news, bad news. According to the copyright office website:

Therefore, the U. S. copyright in any work published or copyrighted prior to January 1, 1923, has expired by operation of law, and the work has permanently fallen into the public domain in the United States. For example, on January 1, 1997, copyrights in works first published or copyrighted before January 1, 1922, have expired; on January 1, 1998, copyrights in works first published or copyrighted before January 1, 1923, have expired. Unless the copyright law is changed again, no works under protection on January 1, 1999 will fall into the public domain in the United States until January 1, 2019.Which means that two of the poems I needed to quote from are public domain.

The third, unfortunately, isn't... and the request originally went to the wrong people. So I've just re-sent it to the right people. Keep your fingers crossed for me.

So, today, apart from Permissions emergencies, is trying to fix the UK and the US blurbs. The UK blurb feels just right, but is factually wonky; the US one has all its facts right, but doesn't quite feel like the book yet (as someone who read it said, "It could be about a war between rival clans of elves in the US" -- which, I hasten to add, it isn't). So I need to try and get the UK jacket copy closer to the events of the book, and the US jacket copy closer to the weirdness of the book. And I ought to do it before close of play today...