Can Publisher Say What is Fair Use?

Dear Rich: I'm an academic co-editing a book with a major university press. Out of an abundance of caution, our editor requested we check on permissions for a number of quotations, etc., with the original publishers. None were an issue til now. But one was an 85 word block quotation transcribed from a novel (and properly cited). The subject of the quotation is critically analyzed and discussed by the chapter author and this discussion is used to help frame the remainder of the chapter, which is not about the novel at all. I submitted the permission form to the publisher (a major US trade publisher). Four and half months later, they just informed us that we need permission and to pay a fee. I subsequently received communication from the publisher stating "Please note that it is up to [the copyright holder] to determine whether a quotation falls into fair use." Is this accurate?
No, it's not accurate, though it is scary. If copyright owners called the shots, it would render fair use meaningless and defeat the constitutional foundations of copyright law. After all, copyright is intended to benefit the public and as the Supreme Court has held, rewarding copyright owners is "a secondary consideration." In other words, think of fair use as means of unshackling the copyright holder's monopolistic grip.
Does your use qualify as a fair use? Before we discuss fair use, we provide our usual caveats: only a court can make the final decision; and you may not be able to afford being "right." Although judges consider the four fair use factors when making a fair use analysis, we think the key issues in your determination are the amount of material used (in relation to the complete novel), whether your use is transformative, and whether it serves as a"market substitution" for the novel. Using that criteria, we think your quotation qualifies as a fair use.
Less is more. Although courts discourage blanket rules as to the percentages permitted for fair use, as a general rule, less is almost always better. For example, it was a fair use when a biographer paraphrased less than one percent of the material from unpublished letters of author Richard Wright. Considering that the word count for a typical novel ranges from 70,000 to 115,00 words, your use of 85 words is negligible -- probably less than one-tenth of one percent.
Transformative/market substitution. The Supreme Court has emphasized "transformative use" as fair use benchmark. Providing a commentary and critical analysis of 85 words of text from a novel seems to clearly fulfill a transformative purpose. Also crucial to fair use analysis is an underlying economic issue: Does your use (reproducing 85 words) create a market substitute for the original work (the novel)? That is, does it in any way displace the market for the novel? We think not.
What to do? Based on the information you've provided, the publisher is either ill-informed or fishing for fees (or some combination). Unfortunately, the publisher is also well-heeled and capable of bankrolling an expensive lawsuit. On the other hand, the publisher may be bluffing, or may come to its senses realizing it can't afford the lawsuit, the potential negative publicity, or worse still, the legal precedent that may result from the case.
P.S. Dept. Check your contract with the university press. If it requires you to indemnify for lawsuits, you would have to foot the bill.

Does Contract Prevent Me from Selling eBooks?

Dear Rich: Twenty-something years ago I sold a few stories to a website. The website now occasionally republishes old stories, but no new content. The contract read: "Licensor grants COMPANY a perpetual license to copy, use, display perform and distribute the literary work known as STORY. The foregoing license will be exclusive in the online medium, such that Licensor agrees not to provide any license or otherwise permit any other person or entity to copy, use, display, perform, distribute or modify the Work through or in the online medium. COMPANY agrees that Licensor owns all copyright and other proprietory rights in and to the Work, other than the license specifically granted hereunder." My question: Can I sell the story as a reprint to an anthology, if that anthology will be available both in print and as an ebook?
We believe you have the right to sell your story for print purposes. You only licensed certain digital rights (the "online medium") and the grant does not include the magic words "print" or "publish." For similar reasons, we believe that eBook rights fall outside the license but that's a more nuanced issue.
The backstory on eBook rights. There's been considerable dispute as to whether older publishing contracts restrict rights for newer formats. In one case, a publishing contract granting rights to "print, publish and sell in book form” was held not to encompass eBook rights. In another case, a contract granted rights in "book format." The agreement also included a clause that the publisher, “shall grant no license without the prior written consent of the Author… including uses in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented…” A judge held that this clause prevented the author from separately exercising eBook rights. You can read more about the legalities of interpreting electronic publishing rights, here.
Is an eBook distributed through an online medium? Your contract prohibits you from allowing "any other person or entity to copy, use, display, perform, distribute or modify the Work through or in the online medium." As we noted, the grant does not include the words "print" or "publish," nor does it reference a "book form" such as an anthology. Because the grant lacks the broad language of other publishing agreements ("electronic means now known or hereafter invented") and because it refers to "display", we think it applies only to traditional websites, blogs and other online reproduction. We don't think that the eBook distribution channels as popularized by iBooks and Kindle -- and which did not exist at the time you sold your story -- are included. It really comes down to how broadly a judge interprets the language, "the online medium," something we cannot predict with certainty.

How Do I Copyright Children's Book?

Dear Rich: We have a wonderful book about ready to send to the printer. The idea for the story came from my wife and I. We contracted with someone to write and illustrate the book. We have had many discussions along the way where we changed text and the order of the story, even getting together for a couple intense days of rewrite. We have this section in our contract: 

A. The Author hereby grants and assigns to the Publisher, its successors, representatives, and assigns, the sole and exclusive right to publish (i.e., print, publish, and sell) the Work in the English language in all forms in the United States of America, its territories and dependencies, and Canada, during the full term of copyright and any renewals and extensions thereof, except as provided herein. 

My question is how do we actually copyright the book? Does the author have to do it and the contract gives us control or can we copyright it ourselves?

Under your contract provision, the author retains copyright to his or her contributions and grants to you, the publisher, the exclusive North American English-language book publishing rights. The author retains all other rights (unless the contract states otherwise) including foreign, translation, book club, film and television, audio, and dramatic rights.
Co-authorship? Your contributions -- story ideas, structure, rewrite -- may make you co-authors of the text, and possibly of the illustrations as well. In that case, the book would be considered a joint work, and you, your spouse, and the author would all be co-owners of the copyright.
Registration. Although registration is not mandatory, it is strongly recommended. Anyone who owns all or part of the rights that make up a work’s copyright may register that work. Therefore, because you retain those exclusive North American publishing rights, you can file as copyright owner of those specific rights. You would name the author (person who did the text and illustrations) as author, and if you determined that you and your spouse were co-authors, you would add your names as authors as well. By the way, you should be able to register the text and illustrations on one application (as a "single unit").

Life After Reversion: Who Gives Permission?

Dear Rich: I want to reuse a table or image from the second edition of a book. Copyright for the fourth edition of that same book has been transferred back to the author by the publisher. Would I go to the publisher or the author for the permission? Are there cases where a publisher retains rights on some editions and not others? We think the author is probably the one to give permission (assuming the author still retains copyright). However, there are a couple of caveats.
Authors and copyright. Sometimes authors retain (or obtain) copyright ownership of a work but exclusively grant all rights to their publisher. In that case, the book may state "© Author" but permission would be granted by the publisher. (That's the way publising contracts often established rights pre-2000.) So, it's possible that either the publisher transferred copyright back to the author but retained exclusive rights over the text, or the author granted exclusive rights to a new publisher and retained copyright. Check to see who the publisher is for the fourth edition. If the work is not self-published, you may need to ask the publisher.
Authors and reversion. More likely, copyright returned to the author under a principle known as reversion. The author's contract  may state that if the book is out of print, or sales are below a certain amount, rights revert to the author. In that case, the ex-publisher gives up all rights to previous editions (except perhaps the right to sell out remaining copies). Assuming the author created the table and image (and claims them under copyright ), then the author would have authority to grant permission. If you're using a permission agreement (and especially if you're paying for permission) ask the author to warranty ownership of rights. A warranty is a contract promise you can include in your permission agreement --- something to the effect of "the Author has the authority to grant the rights granted in this agreement."

Bringing in a Musician After the Song is Written

Dear Rich: I have many songs that were written/recorded to a drum beat (loop) or with no music. I write the lyrics, arrangement and compose the vocal melody. My understanding of publishing splits is 50% lyrics and 50% music. If I bring in a musician after the fact to help write the music, what is the publishing split since the music was written to my melody and vocal arrangement? A publisher told me the vocal melody is considered part of music composition. Is this true? Some musicians/composers often ask for 25% publishing since the song was written when they got involved and some want 50%. Which is correct and/or fair? Also, what would their copyright share be? When I co-write with someone from scratch, we split everything 50%-50%. I like to keep the math easy and both of us happy. If you are bringing in musicians after the song is written, there is usually no reason to share songwriting revenues. You can, if you wish ... Many people in your position simply pay the musician a fee and have them assign any rights to you. However, if the musician is doing more -- for example, rewriting the melody -- or you just want to share songwriting revenues instead of paying for an assignment, read on.
Three things:

• There's a difference between sharing co-writing copyright credit and sharing revenues. Only someone who has materially contributed to the writing of the composition is entitled to copyright co-ownership. On the other hand, you're free to share your songwriting revenues with anyone.
• A lot depends on how you structure the music publishing. We can't go into the gruesome details here but you can learn more about music publishing (and see examples of royalty splits for a band) in our Music Law book (or check out Randy Wixen's The Plain and Simple Guide to Music Publishing).
• There are no fixed rules for dividing songwriting revenue.  

What's Common? Music publishing originated in the days of Tin Pan Alley. Songs were sometimes co-written by a lyricist (words) and a composer (music) -- the formula for classic show tunes like The Sound of Music and for rock tunes such as Satisfaction. Sometimes, as in the case of the latter tune, the lyricist also contributes the vocal melody. Typically these teams split the revenue 50/50. The Tin Pan Alley model is still around and so are lots of other variations, some of which reward people who had nothing to do with writing the words and music. Nowadays contributions that result in the song's success are given songwriting royalties -- for example, a DJ whose beats become the secret sauce for a new club hit.  Whatever you decide, formalize the arrangement in writing, even if it's just a slip of paper that you both sign indicating songwriting splits.