Anyone who knows me, as well as anyone who has been paying attention to these essays here, can attest to the fact that I don't score very high on the false modesty scale. Most would even suggest that I don't score very high on any kind of modesty scale.
So when I say that I'm a pretty minor SF writer, you can believe me. I could do all sorts of handsprings to compare myself with those who have been even less successful than I, but what's the point? There are probably hundreds of thousands of "aspiring writers" in the land, maybe more, and most will never even get past that creative writing course, much less a sale or two to a tertiary market, paying in "fresh fruit and contributors copies," to quote my first agent. But one doesn't compare the minor league baseball player to everyone who ever played ball in high school, or even everyone who every tried out for the minor leagues. A minor leaguer is a minor leaguer because they don't play in the major leagues. Hence the "minor" part.
So: two published novels, an undisclosed number of portion and outline proposals, an unpublished Venus trilogy that I was compelled to write for reasons unknown, plus a few dozen short stories, of which maybe half are published. It's a minor contribution to the field, but if I had not written those works, no one else would have.
Then there is the money angle. There are a lot of ways to parse it, and one of them I've mentioned previously. I've done a bit of work-for-hire writing, which turns out to have paid more (for less labor) than the works for which I hold the copyrights. However, had it not been for the novels and short stories in magazines, I'd have never gotten the work-for-hire gigs, nor would it have been as easy to make the jump from unemployed smog scientist to employed technical writer. Nevertheless, discounting the tech writing career, the total I've made from both the free lance and work-for-hire writing has amounted to somewhere around a year's income, give or take, and remembering that I've had some good years and some truly dreadful ones, and it's sometimes hard to adjust for inflation, etc.
But this is just to segue into a reminder that money isn't the sole judge of merit and worth, though I'll stipulate that if I'd made more money writing SF, I'd have written more of it. You can use money to buy time, and that's an important thing about money.
Let's flip that around, though. We're on the tail end of SF publishing, though maybe not the tail end of SF writing. What that means is that, while the number of book titles has gone up over the past few decades, sales per book have dropped substantially. Moreover, the number of pages per book has also increased substantially, such that a typical SF paperback is now at least twice the length of what it was in, say, the 1950s. Furthermore, sales figures in the 1950s were more than an order of magnitude higher than now, both for novels and the magazines (i.e. the primary venue for short stories). So any given published author in the 1950s reached an audience that was, at a minimum, well into five figures, and not infrequently into six figures or even low seven, even for authors who failed to make "best seller" status.
Now let's subtract money from the equation. What do we have left?
Every book or story takes a certain amount of time to write, and takes a range of times to read, depending upon the reading speed of the reader, and what we can call the "readability" of the book. Obviously a book takes a longer to write than to read, although it's sobering to remember that some writers write at full typing speed, and their full typing speed can be mighty fast. Still, the difference between writing time and reading time is pretty large, and if we toss in the re-reading, revision, proofreading, etc., the disparity become inevitable, even for a rapid writer and a slow reader.
Still, there is also a big disparity between the number of writers and the number of readers, at least for mass market works. Here I am, minor SF writer, remember, and lacking good sales figures on most of my works, but I do know that my first novel sold around 15,000 copies, because they had to go to a second printing, and they had to pay me some more money. I suspect that this was because the publishing house was undergoing an SFWA audit at the time, and wouldn't some more of those be a good thing?
In any case, Book of Shadows (no relation) clocked in at about 70,000 words (editorially trimmed from the original 80,000). It's a bit hard to say how much time I put into the writing of it, since part of it was, shall we say, a "learning experience," taking place over a number of years. More recently, however, I have enough information in how long it takes me (now) to write fiction, and I can crank about 2500 words in a four-hour writing day, which is about how long it take before my brains turn to jelly. Other writers are much faster; some are much slower.
The numbers on this are suspect, of course, since it implies that I can write a 100,000 word novel in 40 days; call it two months of regular work. But as I say, plenty of writers are faster. In the days of the pulps, there were a number of "million worders" who churned out more than a million words a year for quite a few years, and they were using manual typewriters. The trick is to have that much to write about and that many stories to tell. But that's not an issue for someone like me; I have far more stories I'd like to write than time to write them. On the other hand, this doesn't count the time for research, plotting, revision, etc. So everything I say here is ballpark numbers.
For SunSmoke, the matter is even more complicated. I don't have good sales figures, for one thing, and for another, I sold the novelette version first, to Asimov's, and more people read that 15,000 words than the novel, which is three times as long. There is also the matter of "pass around" and used books, and so forth.
But let's pretend that BoS had only the 15,000 readers, and that it took each one an average of three hours to read it (probably low, at 300 wpm, it would take about four hours). That's 45,000 hours of reading, compared to 100-200 hours of writing. Even averaging only 2 written words a minute, it would only have taken 600 hours to write. We're talking hundreds of reader hours for every hour of writing time.
Heck, even here on this blog, checking the page hits and time spent on page, and you folks are spending two or three times as much time reading as I spend on the writing of it.
Reading is not a passive activity. There is real effort involved, and real imagination expended in processing the words to get at a story. The story is different for every reader, often substantially different, and surprising to the writer. Sometimes the writer may even be appalled at what the reader gets from the story, but that's the biz, sweetheart.
Intellectual property laws allow the writer to "own" the story, but it's really a collaboration between writer and reader, in fact, a large number of collaborations, sometimes more than one per reader, even. Some writers (and owners of other forms of intellectual property) believe that they own everything, even what goes on in other people's heads. Put that way it doesn't seem right, does it? But writers are clever folk. We can come up with much better ways of putting it, ways that always make us out to be the heroes.
Showing posts with label intellectual property. Show all posts
Showing posts with label intellectual property. Show all posts
Wednesday, December 26, 2007
Saturday, November 3, 2007
A Quick One about Intellectual Property
I know several intellectual property lawyers, so let me apologize to them in advance. Most of this isn’t their fault.
I once worked for a fellow who was all gung ho about IP, mostly patents and trademarks. Patents are tricky, and so, to a certain extent are trademarks, but there are a few simple things about trademarks. The most important thing about trademarks is that trademarks are usually lost through abandonment. This should be distinguished from “failure to protect.” By “abandonment” I mean that the trademark owner simply ceases using it, fails to continue to file the paperwork, and so forth. It’s basically someone saying “Hey, this trademark is completely worthless; I’m not putting any effort into it at all.” Often, the owner was some corporate entity that simply ceased to exist.
On the other hand, there have been some famous cases where trademarks went generic. Usually, that happened when there was no good alternative name. The yo-yo was originally the “Yo-Yo Brand Return Type Bandolero Top” which kinda tells the whole story, doesn’t it?
The thing is, my intellectual property-minded boss was full of stories about all the trademarks that had been lost because the trademark owner failed to file a ton of lawsuits to protect the brand. I checked the trademarks he named; every single one of them is till in effect. One of them was particularly interesting. In the early 1980s, the FTC petitioned to have Formica declared generic. This petition failed when Congress explicitly defunded the FTC group handling the case. Hmm.
Since then, we’ve had the “Trademark Dilution Act,” which was expressly written not to protect current trademarks on specific products, like Coke, the beverage, but to strengthen “super-trademarks” on things like Coke, the knapsack. And isn’t that interesting?
So on the one hand, you have businessmen paying lawyers to write “cease and desist” letters to anyone using the trademark in any way that doesn’t stand up and shout “Yes! I acknowledge your grand and awesome power over these letters arranged in this way!” then, on the other hand, you have congresscritters writing up laws to make that grand and awesome power even grander and awesomer.
Howard Hughes once trademarked his own name, in an attempt to keep books from being written about him. It didn’t work then.
It might now.
[No trademark symbols were harmed in the writing of this essay].
I once worked for a fellow who was all gung ho about IP, mostly patents and trademarks. Patents are tricky, and so, to a certain extent are trademarks, but there are a few simple things about trademarks. The most important thing about trademarks is that trademarks are usually lost through abandonment. This should be distinguished from “failure to protect.” By “abandonment” I mean that the trademark owner simply ceases using it, fails to continue to file the paperwork, and so forth. It’s basically someone saying “Hey, this trademark is completely worthless; I’m not putting any effort into it at all.” Often, the owner was some corporate entity that simply ceased to exist.
On the other hand, there have been some famous cases where trademarks went generic. Usually, that happened when there was no good alternative name. The yo-yo was originally the “Yo-Yo Brand Return Type Bandolero Top” which kinda tells the whole story, doesn’t it?
The thing is, my intellectual property-minded boss was full of stories about all the trademarks that had been lost because the trademark owner failed to file a ton of lawsuits to protect the brand. I checked the trademarks he named; every single one of them is till in effect. One of them was particularly interesting. In the early 1980s, the FTC petitioned to have Formica declared generic. This petition failed when Congress explicitly defunded the FTC group handling the case. Hmm.
Since then, we’ve had the “Trademark Dilution Act,” which was expressly written not to protect current trademarks on specific products, like Coke, the beverage, but to strengthen “super-trademarks” on things like Coke, the knapsack. And isn’t that interesting?
So on the one hand, you have businessmen paying lawyers to write “cease and desist” letters to anyone using the trademark in any way that doesn’t stand up and shout “Yes! I acknowledge your grand and awesome power over these letters arranged in this way!” then, on the other hand, you have congresscritters writing up laws to make that grand and awesome power even grander and awesomer.
Howard Hughes once trademarked his own name, in an attempt to keep books from being written about him. It didn’t work then.
It might now.
[No trademark symbols were harmed in the writing of this essay].
Tuesday, May 29, 2007
Copyrights ad Nauseum
I was going to write on another aspect of writer loopiness about copyrights, and maybe more, but I’ve been following another long discussion over on Making Light (May 25th). The links to Macaulay, and Legionseagle on Keith DeCandido and amateur law, are hugely useful.
To those I’d add material from Ray Patterson. There’s a link on my Color Cycling article that contains a link to an excellent essay by Patterson that has since been removed, (probably because of Patterson’s death in 2003), so that link is now broken and I need to update the article. I have that linked article of Patterson’s saved somewhere, and I may put some of his philosophy into action by posting excerpts sometime. I imagine that the material is also in Patterson’s book, Copyright in Historical Perspective, and at some point I’ll no doubt read the book for review.
The comments thread on the Making Light entries are quite revealing of the other aspect of writers’ perceptions of copyrights: ego involvement. One writer made it clear that they consider someone else’s use of “their” characters in “fanfic” as akin to rape, and the mere thought of it creates an inability for that writer to function as a writer. This strikes me as being a potentially career ending handicap, similar to horrible stage fright in a performer.
Of course, this is easy for me to say, given my own view that writing itself is a collaborative art, even if it is never published, since I hold that individuals change sufficiently over time that a single individual often collaborates with other selves. For that matter, the idea that a single individual self contains multitudes means that even a solitary soul is a collaboration. When other people are added, when a work is published, in other words, even more people are added to the collaboration (albeit one at a time for readers), and I do not think that I can or should have a proprietary right over what goes on in others’ heads, nor the expression of that in material form.
But cause and effect are tricky here. Do I read things I wrote years ago as if they were written by someone else because of the way I feel about these matters, or do I feel that way because I’ve found that reading old stuff is like reading someone else’s work? I don’t know.
What I do know is that the debate is to a large extent a distraction from the shell game. The arguments are always made predicated on the benefits that will go to “artists” and “creators,” but somehow it is the organizations of lawyers and moneymen who get the lion's share.
Now, for no particular reason, other than the obvious, here's Cab Calloway and Betty Boop:
To those I’d add material from Ray Patterson. There’s a link on my Color Cycling article that contains a link to an excellent essay by Patterson that has since been removed, (probably because of Patterson’s death in 2003), so that link is now broken and I need to update the article. I have that linked article of Patterson’s saved somewhere, and I may put some of his philosophy into action by posting excerpts sometime. I imagine that the material is also in Patterson’s book, Copyright in Historical Perspective, and at some point I’ll no doubt read the book for review.
The comments thread on the Making Light entries are quite revealing of the other aspect of writers’ perceptions of copyrights: ego involvement. One writer made it clear that they consider someone else’s use of “their” characters in “fanfic” as akin to rape, and the mere thought of it creates an inability for that writer to function as a writer. This strikes me as being a potentially career ending handicap, similar to horrible stage fright in a performer.
Of course, this is easy for me to say, given my own view that writing itself is a collaborative art, even if it is never published, since I hold that individuals change sufficiently over time that a single individual often collaborates with other selves. For that matter, the idea that a single individual self contains multitudes means that even a solitary soul is a collaboration. When other people are added, when a work is published, in other words, even more people are added to the collaboration (albeit one at a time for readers), and I do not think that I can or should have a proprietary right over what goes on in others’ heads, nor the expression of that in material form.
But cause and effect are tricky here. Do I read things I wrote years ago as if they were written by someone else because of the way I feel about these matters, or do I feel that way because I’ve found that reading old stuff is like reading someone else’s work? I don’t know.
What I do know is that the debate is to a large extent a distraction from the shell game. The arguments are always made predicated on the benefits that will go to “artists” and “creators,” but somehow it is the organizations of lawyers and moneymen who get the lion's share.
Now, for no particular reason, other than the obvious, here's Cab Calloway and Betty Boop:
Friday, May 25, 2007
Keys
When I got to RPI in 1968, they’d just opened a spiffy new Student Union building. Its top floor consisted of a lounge/balcony area that overlooked the Student Union Dining Hall, plus outer offices and meeting rooms. Since those were all on the outer perimeter of the building, practically every meeting room and office had windows. Pretty slick design, I think.
At the four corners of the top floor were office areas, the main Union office, plus three “special interest” office clusters. One of them was for student publications. Most of the space got taken by The Polytechnic, the school newspaper, because it was, by far, the largest organization. There was also a darkroom (in one of the few spaces without windows), and the Poly guys used that a lot, but all the publications had access to it. There were three other main publications on campus, The Bachelor (humor magazine), The Gorgon (literary magazine), and the Rensselaer Engineer, which was my equivalent of pledging a fraternity (albeit a very small one).
There were three editorial jobs on The Engineer: Features Editor, Managing Editor, and Editor-in-Chief, usually occupied by a sophomore, junior, and senior, respectively. Taking the Features Editor position traditionally set you up for a three year gig, and that’s what happened to me. Actually, the transition usually took place in the spring semester, so there was overlap with the outgoing editor-in-chief for the one semester, at least theoretically.
So I became Features Editor my freshman year. I got a key to the office, and kept it for three years. I spent a lot of time in that office, and why not? It was on campus, in a cool new building, and better than the offices that most faculty members got.
Having the key to that office was a source of comfort, or so I learned when I gave it up. Suddenly, bereft, I had to find other places to store my stuff, eat lunch (or sometimes breakfast; I kept cereal in on of the desk drawers), hide out when I felt like hiding. The office hadn’t been exactly property, but it wasn’t not property, either. I mean, how else to explain the feeling of loss when it was no longer “mine.”
Keys are interesting for a number of reasons, but here I’m interested in the fact that they define and protect property without specific legal recourse. They prevent theft or unauthorized use even in the absence of police protection. Access is both freedom and power. Property is both freedom and power.
When they were planning the new RPI Library, during the time I was in graduate school, there was a suggestion to put one of those electronic theft detectors at the entrance. The new Head Librarian and I were dead set against it. He held the very admirable position that students were part of the University Community, and that one does not begin with the assumption that members of your community are thieves. Trust them and they will reward that trust was his belief.
My own position was that putting a technical barrier in at an engineering school was just asking for it. There would be students who would never consider stealing books who would begin to do so just to show they could do it. I’d known too many students who’d gimmicked telephones, cracked the main RPI keying system, and otherwise gotten into trouble, just because it had been a challenge. Well, okay, the challenge and the getting free phone calls and getting parts for their electrical engineering projects from the labs at 3 A.M.
The two of us won the argument, at least temporarily. I think I saw some of the electronic detectors at a reunion or so back, but at least someone could maybe check to see if it did any good, because we had some years as a baseline.
So we come to copy protection (CP) and Digital Rights Management, both pernicious and foolish ideas, in my estimation, but apparently very seductive to those who want control of “intellectual property.” But CP and DRM differ from the sort of protection that keys provide in fundamental ways, ways that underscore the difference between intellectual property and chattel property or real estate.
The message that is sent by copy protection is that you don’t own what you bought, someone else owns it. So where does that leave you? Wherever it leaves you, it leaves you with less than you otherwise would have. Copy protection is never transparent; it’s a pain to deal with. It makes whatever is being “protected” less valuable.
Now an automobile that can’t be stolen would be more valuable to the owner, not less. So CP and DRM isn’t protection for the owner; it’s just restriction.
How much is that reduction in value actually worth? Hard to say, really, though I note that there is currently a move to sell non-DRM music for about 30% more than DRMed music. So somebody thinks the vigorish is about 30%.
But the other message that is sent by CP and DRM schemes is that anything goes if you can break the protection. And some people have made it their mission to do just that. The result has been an ongoing arms race, with the latest moves being to make such attempts illegal. In fact, the idea is to make even the transmission of information about how to break DRM illegal.
Me, I’m just fascinated at all the different ways there are to invent the Thought Police.
At the four corners of the top floor were office areas, the main Union office, plus three “special interest” office clusters. One of them was for student publications. Most of the space got taken by The Polytechnic, the school newspaper, because it was, by far, the largest organization. There was also a darkroom (in one of the few spaces without windows), and the Poly guys used that a lot, but all the publications had access to it. There were three other main publications on campus, The Bachelor (humor magazine), The Gorgon (literary magazine), and the Rensselaer Engineer, which was my equivalent of pledging a fraternity (albeit a very small one).
There were three editorial jobs on The Engineer: Features Editor, Managing Editor, and Editor-in-Chief, usually occupied by a sophomore, junior, and senior, respectively. Taking the Features Editor position traditionally set you up for a three year gig, and that’s what happened to me. Actually, the transition usually took place in the spring semester, so there was overlap with the outgoing editor-in-chief for the one semester, at least theoretically.
So I became Features Editor my freshman year. I got a key to the office, and kept it for three years. I spent a lot of time in that office, and why not? It was on campus, in a cool new building, and better than the offices that most faculty members got.
Having the key to that office was a source of comfort, or so I learned when I gave it up. Suddenly, bereft, I had to find other places to store my stuff, eat lunch (or sometimes breakfast; I kept cereal in on of the desk drawers), hide out when I felt like hiding. The office hadn’t been exactly property, but it wasn’t not property, either. I mean, how else to explain the feeling of loss when it was no longer “mine.”
Keys are interesting for a number of reasons, but here I’m interested in the fact that they define and protect property without specific legal recourse. They prevent theft or unauthorized use even in the absence of police protection. Access is both freedom and power. Property is both freedom and power.
When they were planning the new RPI Library, during the time I was in graduate school, there was a suggestion to put one of those electronic theft detectors at the entrance. The new Head Librarian and I were dead set against it. He held the very admirable position that students were part of the University Community, and that one does not begin with the assumption that members of your community are thieves. Trust them and they will reward that trust was his belief.
My own position was that putting a technical barrier in at an engineering school was just asking for it. There would be students who would never consider stealing books who would begin to do so just to show they could do it. I’d known too many students who’d gimmicked telephones, cracked the main RPI keying system, and otherwise gotten into trouble, just because it had been a challenge. Well, okay, the challenge and the getting free phone calls and getting parts for their electrical engineering projects from the labs at 3 A.M.
The two of us won the argument, at least temporarily. I think I saw some of the electronic detectors at a reunion or so back, but at least someone could maybe check to see if it did any good, because we had some years as a baseline.
So we come to copy protection (CP) and Digital Rights Management, both pernicious and foolish ideas, in my estimation, but apparently very seductive to those who want control of “intellectual property.” But CP and DRM differ from the sort of protection that keys provide in fundamental ways, ways that underscore the difference between intellectual property and chattel property or real estate.
The message that is sent by copy protection is that you don’t own what you bought, someone else owns it. So where does that leave you? Wherever it leaves you, it leaves you with less than you otherwise would have. Copy protection is never transparent; it’s a pain to deal with. It makes whatever is being “protected” less valuable.
Now an automobile that can’t be stolen would be more valuable to the owner, not less. So CP and DRM isn’t protection for the owner; it’s just restriction.
How much is that reduction in value actually worth? Hard to say, really, though I note that there is currently a move to sell non-DRM music for about 30% more than DRMed music. So somebody thinks the vigorish is about 30%.
But the other message that is sent by CP and DRM schemes is that anything goes if you can break the protection. And some people have made it their mission to do just that. The result has been an ongoing arms race, with the latest moves being to make such attempts illegal. In fact, the idea is to make even the transmission of information about how to break DRM illegal.
Me, I’m just fascinated at all the different ways there are to invent the Thought Police.
Tuesday, May 22, 2007
Playing the Rent VI –Qualms About Copyrights
“No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.” —Mark Halpern, The New York Times, May 20, 2007
“When I appeared before that committee of the House of Lords the chairman asked me what limit [on copyrights] I would propose. I said, ‘Perpetuity.’” —Mark Twain
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it."—Thomas Jefferson
Yes, I have been hesitant about writing about copyrights, in part because the idea is apparently so difficult for some to understand, and the “some” to which I am referring includes a large number of writers.
I think the reason why writers are sometime more that a little loopy on the subject is that copyrights are our lottery tickets, chips in the Big Casino. Of course, it’s not just professional writers who are a party to this, and it’s certainly not restricted to fiction. Anyone who hits sudden notoriety has a story to tell, and if the notoriety is salacious enough, it’s worth money, sometimes big money.
But fiction seems to be where the real lure arises. There’s the ego involvement thing. Behold! I have created something where nothing existed before! I am like unto a god, and you should bow down before me, or at least pay me a lot of money, because it’s mine, mine, I tell you! Bwahaha!
Yeah, there’s a lot of that. Never mind that it’s most likely a slightly below average attempt at a bit of genre fiction, derivative, clichéd to hackney’s depths, it took effort to produce and guts to put it out there, and it’s someone’s angel child.
I don’t usually put blog links into these essays, but there was a May 20th thread on Patrick and Teresa Nielson-Hayden’s “Making Light” that was prompted by the Halpern article I quoted in the beginning of this piece. Teresa, I believe, makes several good points in the comments:
Most works are somewhat derivative. Even much-imitated landmark works like Star Wars or Neuromancer are in many ways powerful new syntheses of older material. If you own the rights to such a landmark work, then to the extent that you can keep subsequent works from copyrighting implicit or potential aspects of that synthesis, your own right to such implicit or potential derivative works will be more valuable…
…nibbling-away of the uniqueness of influential works is a normal literary process. How, then, does the entertainment conglomerate maintain its long-term hold on the valuable rights to the source work? The obvious way to do it is to make sure that other authors don't hold the copyrights on subsequent works. Any story or narrative mindspace they and their heirs own is a story or narrative mindspace you don't own. You might have to pay them something for it, further on down the road. Best not to let them lay claim to it in the first place. –Teresa Nielson-Hayden
Copyrights are not “natural.” When scribes did all the copying, there was no further need for state control of copyright, as the labor cost itself was the limiting factor in the spread of information. But with the invention of the printing press, publishing became a lucrative endeavor, all the more so it there could be some sort of monopoly on publishing generally, or, failing that, the publishing of a particular work. Copyrights, in other words, benefit publishers, the Owners of The Casino. We writers are just the gamblers holding the chips in the Big Game. But the Casino always winds up owning most of the stakes.
Without the Casino, there is no Jackpot, so writers often identify their fortunes with those of the publishers. Well, fair enough, without the publishers there are no fortunes to be made.
The Jackpot is a cruel temptation. I’ve said before, in other circumstances, that if you take up all the money spent by would-be writers of fiction, from the creative writing course fees, to the postage spent, to the paper and ink cartridges bought, not to mention the scams, dodges, vanity presses, phony agents, “readers’ fees” and all the rest, add it up and subtract it from every royalty and advance paid by the publishing industry, and you get a negative number. Maybe movie sales push it back into positive numbers, but I have my doubts, since movies don’t pay their writers that much, and it’s work-for-hire besides. And if I’m wrong, if it isn’t negative sum, it’s because of maybe ten writers, starting with J. K. Rowling and Stephen King, and ending with some writer that you’ve also heard of, Grisham, Clancy, the Usual Suspects. And you’d better ignore the vast amounts of time spent staring at the hellish blank screen, (formerly the blank page), or typing words that no one but the spouse will ever read, because if you add up that time and count it as even a quarter of minimum wage, then not even King and Rowling could make a dent in the debit.
So, one way or another, you’d better enjoy writing your stories, or at least enjoy reading them, because the likelihood of your making a living at it is comparable to winning Powerball, and in fact depends less on how well you write than a hundred other things.
Whew. I hope that’s out of my system for a while. Maybe I can get to actually writing about copyrights now.
“When I appeared before that committee of the House of Lords the chairman asked me what limit [on copyrights] I would propose. I said, ‘Perpetuity.’” —Mark Twain
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it."—Thomas Jefferson
Yes, I have been hesitant about writing about copyrights, in part because the idea is apparently so difficult for some to understand, and the “some” to which I am referring includes a large number of writers.
I think the reason why writers are sometime more that a little loopy on the subject is that copyrights are our lottery tickets, chips in the Big Casino. Of course, it’s not just professional writers who are a party to this, and it’s certainly not restricted to fiction. Anyone who hits sudden notoriety has a story to tell, and if the notoriety is salacious enough, it’s worth money, sometimes big money.
But fiction seems to be where the real lure arises. There’s the ego involvement thing. Behold! I have created something where nothing existed before! I am like unto a god, and you should bow down before me, or at least pay me a lot of money, because it’s mine, mine, I tell you! Bwahaha!
Yeah, there’s a lot of that. Never mind that it’s most likely a slightly below average attempt at a bit of genre fiction, derivative, clichéd to hackney’s depths, it took effort to produce and guts to put it out there, and it’s someone’s angel child.
I don’t usually put blog links into these essays, but there was a May 20th thread on Patrick and Teresa Nielson-Hayden’s “Making Light” that was prompted by the Halpern article I quoted in the beginning of this piece. Teresa, I believe, makes several good points in the comments:
Most works are somewhat derivative. Even much-imitated landmark works like Star Wars or Neuromancer are in many ways powerful new syntheses of older material. If you own the rights to such a landmark work, then to the extent that you can keep subsequent works from copyrighting implicit or potential aspects of that synthesis, your own right to such implicit or potential derivative works will be more valuable…
…nibbling-away of the uniqueness of influential works is a normal literary process. How, then, does the entertainment conglomerate maintain its long-term hold on the valuable rights to the source work? The obvious way to do it is to make sure that other authors don't hold the copyrights on subsequent works. Any story or narrative mindspace they and their heirs own is a story or narrative mindspace you don't own. You might have to pay them something for it, further on down the road. Best not to let them lay claim to it in the first place. –Teresa Nielson-Hayden
Copyrights are not “natural.” When scribes did all the copying, there was no further need for state control of copyright, as the labor cost itself was the limiting factor in the spread of information. But with the invention of the printing press, publishing became a lucrative endeavor, all the more so it there could be some sort of monopoly on publishing generally, or, failing that, the publishing of a particular work. Copyrights, in other words, benefit publishers, the Owners of The Casino. We writers are just the gamblers holding the chips in the Big Game. But the Casino always winds up owning most of the stakes.
Without the Casino, there is no Jackpot, so writers often identify their fortunes with those of the publishers. Well, fair enough, without the publishers there are no fortunes to be made.
The Jackpot is a cruel temptation. I’ve said before, in other circumstances, that if you take up all the money spent by would-be writers of fiction, from the creative writing course fees, to the postage spent, to the paper and ink cartridges bought, not to mention the scams, dodges, vanity presses, phony agents, “readers’ fees” and all the rest, add it up and subtract it from every royalty and advance paid by the publishing industry, and you get a negative number. Maybe movie sales push it back into positive numbers, but I have my doubts, since movies don’t pay their writers that much, and it’s work-for-hire besides. And if I’m wrong, if it isn’t negative sum, it’s because of maybe ten writers, starting with J. K. Rowling and Stephen King, and ending with some writer that you’ve also heard of, Grisham, Clancy, the Usual Suspects. And you’d better ignore the vast amounts of time spent staring at the hellish blank screen, (formerly the blank page), or typing words that no one but the spouse will ever read, because if you add up that time and count it as even a quarter of minimum wage, then not even King and Rowling could make a dent in the debit.
So, one way or another, you’d better enjoy writing your stories, or at least enjoy reading them, because the likelihood of your making a living at it is comparable to winning Powerball, and in fact depends less on how well you write than a hundred other things.
Whew. I hope that’s out of my system for a while. Maybe I can get to actually writing about copyrights now.
Tuesday, May 15, 2007
Playing the Rent V—Trademarksism
There is nothing in the world that some man cannot make a little worse and sell a little cheaper, and he who considers price only is that man's lawful prey. --John Ruskin (1819-1900)
When AOL bought Time Warner last January, it paid $147 billion to form the world's largest media concern. But the accounting value of Time Warner's assets was only about $51 billion. What was the other $96 billion for? It was the premium AOL paid for scores of brands, trademarks and other so-called intangible assets. The value of this stuff - called goodwill - now sits on the asset side of the balance sheet of the combined AOL Time Warner. In the magical world of accounting, all assets, from factories to machinery, fall in value. The process can take anywhere from four years (at tech companies) to 40 years (old-line factories), depending on the asset's expected usefulness, and is accounted for in a quarterly expense to the income statement. In AOL's case, this amortization of goodwill, as the expense is called, currently subtracts an astonishing $1.5 billion a quarter from the bottom line, leading the company that owns the publisher of MONEY to post a near-billion-dollar net loss in the third quarter. [Source: "The Goodwill Games." By Pablo Galarza. Money 30 (13): 61. In ABI/INFORM.]
Every business has “intangible assets” and it’s long been a problem in accounting for them. Realize, though, that there are intangibles and “intangibles.” Is a promissory note, an IOU, more “tangible” than a trademark? Apparently, as the former is considered a “financial asset,” while the later is called an “intangible asset.” That doesn’t keep companies from trading in trademarks, however.
A trademark is part of a company’s “good will,” the respect (or, in some cases, fear) that a firm possesses in the marketplace. In “the good old days,” trademarks and brand names were a sign of the quality of the goods, and that still has some relevance. Almost everyone shows a certain degree of brand loyalty, and the most common and useful form of it is, “These guys haven’t screwed me yet. They do good work.” The trademark as an indicator of quality makes “counterfeiting” a real crime, akin to fraud, trying to pass off something inferior as something of superior quality.
Still, there are, if not exceptions, at least some interesting variations on the theme. Those guys on the street selling $20 Rolexes, I mean, I doubt that anyone thinks they are genuine (and anyone who does, also believes they are receiving stolen goods). So it might be said that there has been a strange “counterfeit Rolex” brand that has been established. Illegal, sure, but not as immoral as one might think at first.
The quality assurance part of trademark doesn’t look a lot like intellectual property. It really does look like a reification of true “good will,” the respect that customers have for the quality of an enterprise. It’s hard work to establish and it’s so very easy to lose. The story goes that when Sarah Lee was sold, the contract stipulated that the purchasing company not change the recipes in any manner. When they tried anyway, the founder took them to court and refused a monetary settlement; only adherence to the original terms would do. “I named this company after my daughter,” he explained. “I’m not going to sell out my daughter’s name for mere money.”
Harlan Sanders made the mistake of not getting such a clear-cut contract. He spent the last years of his life bad-mouthing the product that bore his name.
Some brands try to hook into image and identity, to varying degrees of success. Harley-Davidson was a huge comeback story. The original Harleys were bikes that were just perfectly suited to garage modification into “choppers,” highly individualized bikes. Then came the Japanese imports, better bikes, but not as easily customized. After years of languish, the owners began emphasizing the customization, and took out magazine ads that just showed a highly muscled arm, with a Harley-Davidson tattoo, and the words “When was the last time you felt this strongly about anything?”
It didn’t hurt that they also began a stringent quality control program at about the same time.
But there is no idea so good that human beings can’t find a way to overdo it, and so we come to the “famous brands,” “brand extension” and “brand dilution.”
Let me give an example of a reasonable use of the idea of protecting “brand extension.” A while after the introduction of “V-8” the vegetable juice, someone introduced a brand of vitamins called “V-8 Vitamins.” Since one of the marketing points of V-8 Juice was that it contained vitamins, a court held that there was a real possibility of confusion on the part of the consumer and the vitamin makers were ordered to change the name. And, of course, if V-8 Juice were to actually introduce a line of vitamins, that would be an obvious bit of “brand extension.”
But then you head toward “lifestyle” branding, and Harley-Davidson shows up again, along with Nike, Apple, Abercrombie and Fitch, Gucci, Star Wars, and the New York Yankees. These are “famous brands,” things that might show up on almost anything. Star Wars toothbushes? Absolutely. Gucci golf clubs? Why not? Nike baby carriages? I wouldn’t be a bit surprised.
MacDonald’s has sued any number of small, family owned restaurants into changing their names (or out of business if they tried to resist). There used to be a coffee shop in Berkeley called “Fat Albert’s;” it’s “Fat Apple’s” now.
Disney has trademarked just about every character that paraded through a Disney movie, including some that were originally public domain. You can use Frankenstein in your work, but he’d better not have rivets in his neck; Universal owns those. Tarzan? The Burroughs estate is very litigious. Better use some other jungle man; maybe have him raised by elephants.
Now realize, an awful lot of this has nothing to do with “confusion in the public mind.” There was zero chance that the Air Pirates’ version of Mickey and Minnie Mouse were going to be mistaken for anything other than an underground comix parody. No, this heads over toward toll-taking, barratry, and, in many cases, legal departments making work for themselves, to no real corporate benefit whatsoever.
Well, that does depend on whether “control” counts as “good will.” I’ll certainly agree with the “will” part of it. I certainly do.
When AOL bought Time Warner last January, it paid $147 billion to form the world's largest media concern. But the accounting value of Time Warner's assets was only about $51 billion. What was the other $96 billion for? It was the premium AOL paid for scores of brands, trademarks and other so-called intangible assets. The value of this stuff - called goodwill - now sits on the asset side of the balance sheet of the combined AOL Time Warner. In the magical world of accounting, all assets, from factories to machinery, fall in value. The process can take anywhere from four years (at tech companies) to 40 years (old-line factories), depending on the asset's expected usefulness, and is accounted for in a quarterly expense to the income statement. In AOL's case, this amortization of goodwill, as the expense is called, currently subtracts an astonishing $1.5 billion a quarter from the bottom line, leading the company that owns the publisher of MONEY to post a near-billion-dollar net loss in the third quarter. [Source: "The Goodwill Games." By Pablo Galarza. Money 30 (13): 61. In ABI/INFORM.]
Every business has “intangible assets” and it’s long been a problem in accounting for them. Realize, though, that there are intangibles and “intangibles.” Is a promissory note, an IOU, more “tangible” than a trademark? Apparently, as the former is considered a “financial asset,” while the later is called an “intangible asset.” That doesn’t keep companies from trading in trademarks, however.
A trademark is part of a company’s “good will,” the respect (or, in some cases, fear) that a firm possesses in the marketplace. In “the good old days,” trademarks and brand names were a sign of the quality of the goods, and that still has some relevance. Almost everyone shows a certain degree of brand loyalty, and the most common and useful form of it is, “These guys haven’t screwed me yet. They do good work.” The trademark as an indicator of quality makes “counterfeiting” a real crime, akin to fraud, trying to pass off something inferior as something of superior quality.
Still, there are, if not exceptions, at least some interesting variations on the theme. Those guys on the street selling $20 Rolexes, I mean, I doubt that anyone thinks they are genuine (and anyone who does, also believes they are receiving stolen goods). So it might be said that there has been a strange “counterfeit Rolex” brand that has been established. Illegal, sure, but not as immoral as one might think at first.
The quality assurance part of trademark doesn’t look a lot like intellectual property. It really does look like a reification of true “good will,” the respect that customers have for the quality of an enterprise. It’s hard work to establish and it’s so very easy to lose. The story goes that when Sarah Lee was sold, the contract stipulated that the purchasing company not change the recipes in any manner. When they tried anyway, the founder took them to court and refused a monetary settlement; only adherence to the original terms would do. “I named this company after my daughter,” he explained. “I’m not going to sell out my daughter’s name for mere money.”
Harlan Sanders made the mistake of not getting such a clear-cut contract. He spent the last years of his life bad-mouthing the product that bore his name.
Some brands try to hook into image and identity, to varying degrees of success. Harley-Davidson was a huge comeback story. The original Harleys were bikes that were just perfectly suited to garage modification into “choppers,” highly individualized bikes. Then came the Japanese imports, better bikes, but not as easily customized. After years of languish, the owners began emphasizing the customization, and took out magazine ads that just showed a highly muscled arm, with a Harley-Davidson tattoo, and the words “When was the last time you felt this strongly about anything?”
It didn’t hurt that they also began a stringent quality control program at about the same time.
But there is no idea so good that human beings can’t find a way to overdo it, and so we come to the “famous brands,” “brand extension” and “brand dilution.”
Let me give an example of a reasonable use of the idea of protecting “brand extension.” A while after the introduction of “V-8” the vegetable juice, someone introduced a brand of vitamins called “V-8 Vitamins.” Since one of the marketing points of V-8 Juice was that it contained vitamins, a court held that there was a real possibility of confusion on the part of the consumer and the vitamin makers were ordered to change the name. And, of course, if V-8 Juice were to actually introduce a line of vitamins, that would be an obvious bit of “brand extension.”
But then you head toward “lifestyle” branding, and Harley-Davidson shows up again, along with Nike, Apple, Abercrombie and Fitch, Gucci, Star Wars, and the New York Yankees. These are “famous brands,” things that might show up on almost anything. Star Wars toothbushes? Absolutely. Gucci golf clubs? Why not? Nike baby carriages? I wouldn’t be a bit surprised.
MacDonald’s has sued any number of small, family owned restaurants into changing their names (or out of business if they tried to resist). There used to be a coffee shop in Berkeley called “Fat Albert’s;” it’s “Fat Apple’s” now.
Disney has trademarked just about every character that paraded through a Disney movie, including some that were originally public domain. You can use Frankenstein in your work, but he’d better not have rivets in his neck; Universal owns those. Tarzan? The Burroughs estate is very litigious. Better use some other jungle man; maybe have him raised by elephants.
Now realize, an awful lot of this has nothing to do with “confusion in the public mind.” There was zero chance that the Air Pirates’ version of Mickey and Minnie Mouse were going to be mistaken for anything other than an underground comix parody. No, this heads over toward toll-taking, barratry, and, in many cases, legal departments making work for themselves, to no real corporate benefit whatsoever.
Well, that does depend on whether “control” counts as “good will.” I’ll certainly agree with the “will” part of it. I certainly do.
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