The New York State Court of Appeals dismissed a libel case against an independent newspaper– in which the plaintiff had already been awarded a substantial damages verdict at trial – because the statements made were merely opinion. 

The newspaper printed an editor’s note stating that the plaintiff, Monroe Mann, the town attorney, was the true power behind the throne in the town’s politics, was a “political hatchet Mann,” and was leading the town to destruction.  

The Court reiterated the three major factors in determining what constitutes opinion: whether the language used has a precise meaning; whether the statement is capable of being proven true or false; and whether in the full context of the statement readers understand that the statement is opinion rather than fact.

The Court of Appeals emphasized that the key to determining whether a statement is opinion or fact is its context, and that figurative or hyperbolic language is not determinative.

The decision affirms existing New York law, which generally gives broad protection to opinions.

Ballantine has called off publication of author Sherry Jones’s racy historical novel about Aisha, the young wife of the prophet Muhammad.  Random House was set to publish the novel, “The Jewel of Medina,” on Aug. 12.

According to an Op-Ed in the WSJ (Aug. 6, 2008), Thomas Perry, deputy publisher at Random House Publishing Group, said that the company received “from credible and unrelated sources, cautionary advice not only that the publication of this book might be offensive to some in the Muslim community, but also that it could incite acts of violence by a small, radical segment.”

The publisher and Jones have entered a termination agreement so that the book can be shopped to other publishers.  Other details about the termination, including the advance have not been released.

As the “The Jewel of Medina” situation illustrates, an author should seek an objective standard for manuscript approval and publication such as “professionally competent and fit for publication.”  Such contract language may give an author some recourse, even if it doesn’t change the publisher’s actions.

In a victory for journalist Leonard Levitt, the NYPD settled its case with him and has agreed to turn over all the documents Levitt requested in his 2007 Freedom of Information Law (FOIL) request.  Levitt made the request to learn who has received press passes from the NYPD.  Moreover, as part of the settlement the NYPD agreed to reimburse Levitt’s attorneys $6,655.00 for bringing the court case.

On May 1, New York State passed a law giving its state and federal courts power to protect authors and publishers from unfair foreign libel judgments issued in countries whose laws are inconsistent with U.S. law.

The Libel Terrorism Protection Act was prompted by the case of Dr. Rachel Ehrenfeld, a New York-based author who was successfully sued for libel by Saudi businessman Khalid bin Mahfouz concerning her book about terror funding, “Funding Evil.”  That lawsuit was brought in England — where libel judgments are much easier to obtain than in the United States — even though only 23 copies of the book had been sold there.  

Erhenfeld then brought a lawsuit in federal court in New York to obtain a declaration that bin Mahfouz’s British judgment could not be enforced against her in the United States, and that her book was not defamatory under U.S. law.  Erhenfeld’s suit was dismissed on the grounds that she did not have jurisdiction in New York over bin Mahfouz. 

New York State responded to the dismissal by passing the Libel Terrorism Protection Act.  The Act gives courts two new powers to protect authors and publishers. 

First, the Libel Terrorism Protection Act bars New York courts from enforcing a foreign libel judgment unless the country where it was decided provides at least as much protection for freedom of speech and press as New York.  This provision of the Act will be an addition to Section 5304 of the New York Civil Practice Law and Rules and will prohibit the enforcement of a foreign judgment, “unless the court before which the matter is brought sitting in this state first determines that the defamation law applied in the foreign court’s adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York constitutions.”
 
Second, the Libel Terrorism Protection Act increases New York courts’ authority to invalidate foreign libel judgments if those judgments could have effects in New York.  This provision of the Act will appear as a new subsection of New York Civil Practice Law and Rules, Section 302. It will give courts jurisdiction over any person who obtains a foreign judgment in a defamation case related to a New York publication if the judgment is against a person who: is a resident of New York; is a subject to jurisdiction in New York; who has assets in New York; or, may have to take actions in New York to comply with the judgment for the purposes of rendering declaratory relief.

Len Levitt has covered the NYPD for decades – for 10 years at Newsday, where he wrote a column called “One Police Plaza Confidential” that often highlighted police corruption, brutality or inefficiency. He has written half a dozen books, most recently an in-depth analysis of the Martha Moxley murder.  He currently reports and writes about the police for his web site, www.NYPDConfidential.com.

It’s clear he’s a well-qualified journalist. But the NYPD doesn’t seem to think so. He was denied a renewal of his press pass in 2007.

The fact is, the NYPD just doesn’t like Leonard Levitt.  Over the years his writing has put him at odds with police brass.  On two occasions in the last few years, the NYPD has attempted to block Levitt from police headquarters– a remarkable move, considering police headquarters is a public building.    

Levitt is fighting the pre-textual denial.  Early last year, he filed a Freedom of Information Law request under the New York Freedom of Information Law (FOIL) demanding documents revealing the names and qualifications of every person holding a NYPD press pass – in an effort to understand who the NYPD deems “qualified.”  The NYPD refused to turn over the documents.

Early this month, with the help of the New York Civil Liberties Union, Levitt filed a lawsuit in New York County Supreme Court to compel the NYPD to turn over the documents.  The case is scheduled for an initial court date on March 31, 2008 and is captioned, New York Civil Liberties Union and Leonard Levitt v. New York City Police Department and Raymond Kelly, New York County Supreme Court, Index # 102720/2008.

All author collaborators should have a written collaboration agreement.  A good agreement can provide guidance, prevent disputes and resolve problems when they arise.  No two collaborations are alike: in each there will be a unique balance of contributions of celebrity, experience, writing skill, technical knowledge, and sweat.  And in each collaboration the parties will divide the resulting fruit of their labors differently. All collaborators should discuss and address in writing where relevant the following issues:

1) Who will have authority to make legal, business and editorial decisions?

2) How will the rights be divided in the final work and in partially completed work if the project does not go to completion?

3) How will authorship be credited?

4) How will the collaborators be compensated?

5) How will the work be divided?

6) What will happen if the project does not go as planned?

7) What happens in the event of death or disability of either collaborator?

8) Under what circumstances can (or must) the collaboration be deemed terminated?

© 2007 Anthony N. Elia

Readers of the best selling “Deceptively Delicious,” by Jessica Seinfeld (comedian Jerry Seinfeld’s wife) have noticed similarities with Missy Chase Lapine’s cookbook, “The Sneaky Chef.”  Both cookbooks teach parents how to surreptitiously serve vegetables to their picky children.  See, NYT, October 19, 2007. 

From the legal perspective, recipes which consist merely of a listing of ingredients and directions on preparing them are not subject to copyright protection.  On the other hand, a recipe that is accompanied by substantial literary expression in the form of an explanation, directions, anecdotes, reminiscences or historical information probably will be protected by copyright.  The recipes in the “The Sneaky Chef” appear to fall into the former category. 

Finally, courts have extended protection to a compilation of recipes, as in a cookbook, irrespective of whether they are protected as individual recipes, only where a very substantial portion – or all - of the book is copied.  Protection of a collection of recipes as a compilation would not apply where only mere “similarities” between two works were asserted.

© 2007 Anthony N. Elia

                Given the prevalence of collaborations of all kinds in writing and publishing, from writers and experts to writers and researchers, the law of shared or “joint” copyright is worth some consideration.  In the most general terms, joint authorship is the sharing of a copyright by individuals who contribute to a work.  Disputes about ownership of copyright frequently arise when collaborative projects fall apart, but understanding joint authorship can help writers properly identify and resolve possible problems and know when to seek appropriate legal help. 
                Joint authorship has its privileges.  First among these privileges is that a joint author has the right to use the work and license it to others without permission.  Accordingly, a joint author is not deemed an “infringer” for using or selling the work without permission.  While the joint author may exploit the work, he or she must split the profits with the other owner(s).  In the absence of an agreement stating otherwise, two joint authors will share profits from all uses of the work 50/50, regardless of the magnitude their respective contributions.  Accordingly, even a person whose contribution is relatively minor, if accorded joint authorship status, enjoys a significant benefits and rights in the work. 
                 The definition of “joint authorship” comes directly from the Copyright Act.  The Act states that a “joint work” is a work “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”  The two basic ingredients for joint authorship are a contribution to the work and the intent to be joint authors.  A joint work should not be confused with a “collective work” which is a work, such as a periodical issue, anthology, or encyclopedia, and consists of a number of collected contributions that are intended to be separate and independent. 
               The first requirement for joint authorship is a contribution to the work.  The type of contribution that entitles someone to a joint author status is not absolute.  The contribution must, however, be able to stand on its own as copyrightable subject matter.  Examples of copyrightable subject matter that would satisfy the first prong of the joint authorship test are photographs, lyrics to a song, and as little as a few sentences of text.
On the other hand, the contribution of non-copyrightable subject matter such as ideas, research, data, copyedits and critique will not qualify the contributor for joint authorship.  One court has noted in this regard that “the assistance that a research assistant or secretary or draftsman or helpfully commenting colleague provides in the preparation of a scholarly paper does not entitle the helper to claim the status of a joint author.” Determining when the helper is a joint author is not always easy however—partly because of the difficulty of determining whether the contribution is independently copyrightable.  To complicate matters, one jurisdiction has loosened this requirement under some circumstances—a move that could broaden the pool of potential joint authors.  The best way to deal with this uncertainty is to identify all contributors to a project and err on the side of caution in treating them as potential joint authors.
                Merely contributing copyrightable subject matter to a work does not give rise to joint authorship in the absence of the intention to be joint authors.  In part, this means that the parties intend their contributions to be merged inseparably into the work or project.  In somewhat circular reasoning, the courts also require proof that the parties intended to be joint authors.  It is not necessary, however, that the parties understand all the legal consequences that flow from joint authorship.  Determining the parties’ intentions at the time of the work may not be easy.  The parties’ agreement as to attribution of the work will be accorded great weight, but is not conclusive.  For example, a ghostwriter may not intend to be given author credit, but may still intend to be a joint author. Collaborators should carefully consider what consequences they wish to flow from their contributions and put it in writing.
               The best way to avoid disagreements and unintended consequences with joint authorship is to proactively identify potential joint authors and enter into some type of written agreement with them as early in the project as possible.  The pool of potential joint authors must include anyone who contributes copyrightable subject matter to the work such as written material, notes, illustrations or photographs. To be cautious, the pool should also include individuals who contribute seemingly non-copyrightable subject matter such as data, research, background information, interviews, drafts, notes and quotes.  Even individuals contributing substantial critique or ideas should be treated as potential joint authors on a big project or to be especially cautious. 
               As a final note, the intended author should never forego obtaining an assignment or license from a contributor because he or she assumes that they are protected by the work made for hire doctrine, even if the collaborator is paid for their contributions.  Finally, if the contributor is not just a casual helper and is intended to be a joint author, the parties should enter a collaboration agreement. 

© 2005 Anthony N. Elia

                As soon as you write an article or snap a photograph, you have a copyright.  No publication or registration in the Copyright Office is required.  So, why bother registering copyrights at all?  The answer is that registration provides exceptional and cost-effective protection to authors and photographers.  
               A copyright registration alone can establish an author’s ownership of a certain work and the date of creation.  A common, but false myth is that mailing a self-addressed package containing a work can be used prove ownership and date of creation.  This “poor man’s copyright” is not at all effective but it is aptly named - it truly is a “poor substitute” for a proper registration.   
                If someone infringes your work, a copyright registration is truly invaluable. A timely registration provides you with a number of powerful tools should you need to go to court.  The first is statutory damages, a unique form of compensation that can be awarded to a copyright holder even in the absence of proof that the infringement caused monetary damage to the copyright holder or that the infringer profited from the infringement.  Not infrequently, a meritorious lawsuit is a paper tiger because neither damages nor profits can be proven – and in these cases statutory damages can save the day.
                The second powerful tool copyright registration provides a copyright holder is entitlement to attorneys’ fees from the infringer.  There is only one thing infringers hate more than paying their attorneys’ bills – paying someone else’s attorneys’ bills.  This prospect provides ample incentive to settle quickly.     
                In order to enjoy all the full benefit of registration, however, it must be timely, which means that the work must be registered either before the infringement commences or within a three month window after the article is first published. 
How to register nearly all your articles for about $180 a year
                The most cost effective way to ensure that your work is protected is to file a group registration for all the articles and/or photographs you publish in a ten week cycle.  The ten week cycle is the three month registration window minus two weeks for the application to reach the Copyright Office by mail.  A single registration is $45, but using the group registration form (GR/CP) an applicant may list a number of articles.  By filing every ten weeks, you’ll ensure that registration is made within the three month window for all your work.  The total cost is about $180 per year and the benefits are well worth it.
                Group registration can be done easily and inexpensively using the following four steps: 
                              1) Select either form TX (for text) or VA (for photographs).  Both forms are available on the Copyright Office’s website.  Which form should you use for an article with photographs?  If the text predominates, use TX; if the pictures predominate, use VA.  If your work contains both text and photographs and you are claiming both, indicate in the description of the work that you are claiming both elements.  Do not fill out the portions related to any specific work- place that information on the GR/CP.
                              2) Complete group registration form GR/CP, also available on the Copyright Office’s website.  It is best to register every ten weeks, but you may go back and list articles published within the previous twelve month period (you may wish to do this for the first GR/CP you file).  The articles do not have to be published in the same calendar year.  Note that the author must be the same individual for all the articles.  Thus, if one of the articles was written jointly with another author, it may not be registered with the others.
                            3) Prepare your deposit materials.  The deposit is the work that is being registered.  For articles published in a periodical such as a magazine or newspaper you may submit a photocopy of the work as it was published.
                             4) Make a $45 check for payment to “Register of Copyrights.”

© 2007 Anthony N. Elia