Does Site Owner Own Blog Post?

Dear Rich: Are an author’s blog posts the copyrighted material of that author, regardless of whose blog he or she posts on. Example, your blog is Nolo’s IP blog but if a post is authored by you, the words you wrote would be yours and you’d be free to republish in another work you write, right? I have a friend who is part owner of a site who wrote some blog posts based on company materials. But the words and thoughts are clearly those of the author/part-owner and every post has a byline to the author/part-owner. So who's material is it? For the sake of full disclosure (and even without FTC goading) the Dear Rich Staff acknowledges that it is employed by Nolo and this blog is created within the course of our employment. That makes Nolo the copyright owner. In other words, once these words ejected from our cerebrum and fixed on this screen, we relinquished ownership (a disclosure likely to haunt us during a future deposition.)
Author/Owner issues. In your question, the blogger is not an employee. Typically, the only way that a non-employee gives up ownership to blog material is by a written transfer (typically an assignment or a work made for hire agreement). But in your question, the blogger is a part-time owner. That raises a different set of issues. What type of business form is it -- partnership, LLC or corporation? If it is a corporation or LLC and the blogger is an officer, the blogger/owner may have written or fiduciary obligations. Alternatively, the corporation's or LLC's owners may have obligations not to compete -- something that might occur if the material was used for other purposes. If it is a partnership (the default for a group of owners who don't do anything formal), is the blog-writing considered part of the blogger/partner's contribution? That may affect claims to ownership. Finally, if the blog is derived from existing company-generated material or research there may be co-authorship or co-ownership issues. That doesn't mean the blogger can't republish it ... but the blogger would have to account to the co-authors if any money was earned.

Dear Rich Staff Live in Sunnyvale 6/18

just when you thought it was safe to watch a Powerpoint .... Monday, we're live in Sunnyvale to discuss Five Ways You Can Protect Your Great Idea Without Filing a Utility Patent.

Who gets copyright in book publishing contract?

out of print -- The Book Of Wonders
(late 14th Century)

Dear Rich: Is it standard in the industry today for authors to retain copyrights to nonfiction works, or are most copyrights registered in the publisher’s name? The trend since the mid-1990s (when we all started going digital) is for publishers to acquire copyright in the publisher's name. However, this has been characterized as a "ghost issue" (scroll to Question #2) in author-publisher negotiations because no matter under whose name the copyright is registered, the publisher always controls the rights granted in the publishing agreement (and it should be clear that rights not granted to the publisher are reserved by author).
There may be some administrative advantages for the publisher to acquire protection in its name (and it used to make it easier to proceed against infringers) but what probably matters more than the name of the copyright holder, is whether rights will revert under the publishing contract and what triggers reversion. In today's digital publishing universe, the issue often comes down to when a book is considered to be out of print -- many authors are arguing for a standard based on a limited number of sales per quarter. Here's a related blog entry on the subject.

How Do You Opt Out of Craigslist Terms of Use?

Dear Rich: I was curious how someone would 'opt out' of the Craigslist user agreement. It seems to me that being forever tied to a changing user agreement, if one isn't posting ads anymore, isn't right. There seems to be some confusion as to whether a Craigslist account can be terminated. Craigslist doesn't appear to have a posted policy. Some maintain that sending an email to CL's tech support will eventually do the trick. Others propose various workarounds such as changing your profile to include a fictitious email address or simply being inactive for four months which deactivates (whatever that means) an account.
Constantly changing EULA. As for your comment about the end user license agreement (EULA) that's constantly changing, we assume you know that's par for the course on the Internet where most EULAs reserve the right for the website to change terms arbitrarily. Look for a statement such as "Company reserves the right to modify and/or change any of the terms and conditions of this EULA at any time and without prior notice." The simplest solution to avoid having these newer user terms enforced against you is to stop using the site for all purposes.

Wants to Fictionalize Baseball Blogs

Dear Rich: I am in the process of writing a fictional novel. Part of the novel involves a romance with a minor league baseball player. Since I know nothing about life in the minor leagues, I've been reading baseball wives blogs. I was hoping to base some of my material on the material written in these blogs. Is this a case where I would need a life rights agreement from the writer of these blogs, or is it considered public domain now that it is written on the Internet? Most of the material from the different blogs is similar in content, and since the story is fictionalized, I think they would have a hard time relating the incidents in the novel to their own blogs. Again, I wouldn't take any specific information, just base my fiction off of their real-life incidences, and for only a portion of the novel. What do you think? We were going to say, "No worries," but we couldn't do it. We think 'No worries,' like it's cousin, 'No problem,' is just another responsibility-shifting language gambit. For example, when we announced that the coffee pot was empty at our local cafe, we were told "no worries," as if we shouldn't feel bad (or we should) for "worrying" about the lack of caffeine. A more traditional response would have been, "Okay, I'll bring you a fresh pot," (or the employee could have said nothing -- grumpy employees are fine with us). We believe 'No worries' is a subvariant of 'whatever' and that its  Australian-U.S. transmutation is a result of a misreading of Meher Baba (who did incorporate responsibility).
Right, you had a question. It's fairly common for novelists to do what you're doing -- fictionalize anecdotal material from true life stories. The case law on the subject leans heavily towards permitting fiction writers to use facts and stories from real life.  Generally, there are two things to keep in mind if you want to be free of hassles.
Avoid using material in a manner in which a specific person can be identified from the retelling. Changing settings, names, dates, etc. can all prevent someone from making a claim that readers identify the characters with specific individuals which could in turn give rise to claims of defamation (if the story weren't true) or invasion of privacy. For example, you are certainly free to create an evil antagonist in your novel who is an ex-hall of famer, owes money to the IRS and is trying to buy a baseball team. But you shouldn't set the story in San Diego, name the character Gwynn or Tony (or something similar) and have him team up with a movie producer. This article explains how to put distance between your fictional character and a real life counterpart.
Rewrite the adventures so that that you only borrow the underlying facts. Avoid claims of copyright infringement by not lifting the language or unique expression provided by the blogger (not merely the anecdotal material or underlying facts). Check out this article for more on copyright, novels and facts.
Animated Gif Dept. Thanks to our readers for finally telling us to turn off the flashing GIFs (sorry, but we need to keep the CLA banner ad on for a few more weeks). Who knew there were government guidelines?
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How to Find Quotes to Use on Greeting Cards

Dear Rich: I have created a card line from my art. I want to use inspirational quotes. I was able to contact Mary Oliver's staff and they said no. Anais Nin's estate want money to use them. Other than those two I am having a hard time determining. Rumi? Rilke? Movie quotes? Music quotes? Others I haven't heard of before but have lovely things to say. Can you help me sort it out? First, the animated GIF issue. As regular readers may have noticed, we've settled down quite a bit and we seem to be finding our pace. Thanks for your helpful comments and feedback.
Right, you had a question. Attempting to negotiate permission from famous poets or songwriters (or their estates) can be expensive, frustrating and time-consuming. If we may recommend an alternative, legal course to pursue -- find similar writers whose works are in the public domain. One way to find out what potential consumers might like is to use Google's new Knowledge Graph feature. If you type Mary Oliver into Google, for example, a box appears on the right of the listings (see above) showing you what Oliver-searchers are also searching for (surprise - Jalal ad-Din Muhammad 'Rumi' is No. 1). How do you know which writers are in the public domain? This article provides the basics and if you need more help, consult Steve Fishman's helpful book.

When Can Inventor Claim Net Operating Loss?

Dear Rich: My co-inventor and I have a partnership and we've spent a few thousand dollars working on an invention. Can we deduct our losses from the partnership's income tax return, or do we do it individually on our separate returns? First, let's address the animated GIF issue. As we have indicated previously, we're caught up in something that's apparently difficult to control. We know the effect cheapens our blog and makes it seem as if we are now accepting banner ads from car insurance companies (which, hey, we're not against doing if the numbers worked out). But these days when we reach in our mailbag, our overriding criteria for choosing a question is whether it lends itself to a GIF. And our holy grail is to find a question that we can answer solely with an animated GIF. Stay tuned!
Right, you had a question. We're not tax experts but we do know enough about taxes to tell you that a partnership's return is "informational" and that a partnership is a "pass-through" entity, which means that the profits and losses pass through the partnership to the individual owners. Whether the partners can deduct a net operating loss (NOL) depends on your ability to show the IRS that your inventing activities are a business, not a hobby, that you  keep accurate records of your expenses, and that you have a legitimate legal basis for your deductions. Assuming you can do that, you may be able to use your NOL deduction either going forward (in future tax years) or apply it against past returns. There's more on NOLs in this IRS booklet and we've also got an article explicitly on the subject of  NOLs and inventors.

When Does a Version of a Song Qualify as Fair Use?

Dear Rich: I am working on a tribute album and I'm trying to figure out the distinction between derivative works and transformative fair use.  At what point is a song transformative enough to be considered fair use, vs. a derivative work? And how can I use this knowledge to negotiate with publishing companies, prior to recording/selling and performing the songs? If I am not given permission to create or sell a derivative work and I only perform them live, what is the risk and potential liability of infringement? Sorry, we would have gotten to your questions sooner except we've been obsessed with creating animated GIFs ever since Photoshop Elements 10 arrived (finally, you can change the timing on the animation). We expect to get over it soon, and yes, we know they're annoying to watch. 

Right, you had a question. If you're doing a tribute album, we assume you're doing cover versions of existing songs and that it is a "tribute" to a band or performer. There are two legal rules at work here.

• Compulsory license. First, under Section 115A of the Copyright Act, a music publisher must permit you to record any song that has previously been recorded and released to the public. However, you cannot use the compulsory (mechanical) license if you change the basic melody or fundamental character of the song. For example, a singer cannot alter a song’s lyrics without permission. That said, many people change elements of songs without a problem (as we mentioned in this previous entry).
• Derivatives and fair use. A derivative work is one that is based upon or modifies an existing work. A fair use is when an existing work is used in such way that a court, balancing four fair use factors determines that permission is not required. The transformative quality of the work is an important factor but so is another factor -- the amount and substantiality of the portion taken. In most music cases where fair use is found it's because a relatively short segment of the original work is used. We don't think providing a full-length cover of a song will qualify as a fair use -- even if it is as transformative as this.

The "So What" Issue. Even if you believe you have a strong fair use argument, a music publisher is likely to respond, "so what?" Only a court -- not you or your lawyer -- can verify that it is a fair use, so a publisher is unlikely to feel pressured to grant permission based on your arguments. What you might wish to consider --  although this advice is contrary to Section115A --  is to simply pay the mechanical license fees even though you have modified the songs. Our experience is that most publishers just want to be compensated and don't want to have to deal with special permissions. As for performing the songs live -- any venue where you play will have to pay performing rights fees for each song -- so it is unlikely that music publishers will care about your version just as long as the song title is correct.

Wants to Protect Database/Dataset

Dear Rich: I am a long time business professional that has formulated an idea for a new business venture. I have developed a process for utilizing both proprietary (generated through commissioned market research) and non-proprietary (purchased from another firm) data in such a way that would allow me to merge them to create an enriched data set. Using this enriched data set, I have plans to develop a database that allows me to build analytical tools that can be sold or licensed. Is there a way for me to protect the idea, process, methodology in a concrete manner? If so, what path do I take and what type of detail would I need to provide? The reason for my question is that inherent in selling the "value proposition" would be a need to disclose a fair amount of detail of the process so as to demonstrate the product value. Wow, sorry it took so long to answer this but we had to research "value proposition," and then once we did that, we spent a long time wondering about whether the Dear Rich Staff is offering its customers a suitable VP. Then we got sidetracked creating animated GIFs and entirely lost our train of thought. Ennyway, we think you really have two questions and we'll address them separately.
(1) Is there a way to protect a database that consists of publicly available research and original material? Copyright offers fairly limited protection for compilations of data, particularly if portions of the data are publicly available. The owner has to demonstrate that the selection, coordination, or arrangement of the materials is original. To prove infringement of factual compilations, for example, you generally must show verbatim copying. The more popular method of protecting databases is with end user licenses restricting how the material can be used. Other database users attempt to protect their sites with encryption or passwords. However, these precautions may have little effect. For example, one court permitted a company to use a "spider" to scrape public domain data from a competitor's website. Alas, the copyright circular on protecting automated databases (Circular 65) is currently being revised
(2) What's the best way to disclose information about that database to third parties such as investors? If your database is not publicly accessible,  the best way to disclose information about it is under the terms of a nondisclosure agreement. We've posted examples you can use at our NDA site.

Can Terms of Use Limit Public Domain Reproduction?

London Street Fiddler 1880

Dear Rich: What if a public domain image is on a site that has its own terms of use restricting what can be done with images from that site? It might be hard for someone to prove that another party who used the photograph came from the contractually limited site, but don't we need to respect contracts? We should respect legally enforceable contracts but we don't think a "terms of use" statement at a website would create such an agreement. We think that the end user must enter into an agreement -- that is, must 'click to agree' or otherwise demonstrate some assent. Recently we posted what public domain expert Steve Fishman had to say about the practice in his excellent public domain guide.

"Many copyright experts believe that licenses imposing copyright-like restriction on how the public may use public domain materials should be legally unenforceable. This is because the federal copyright law prevents people from using contracts to create their own private copyrights. However, almost all courts have ignored the experts and enforced these licenses."

Craigslist Won't Let Me Google Search

Dear Rich: Craigslist just sent out a bunch of cease and desist notices to people who display Google results in their sites using Google's 'custom search engine tool' where the results are craigslist listings. Many of these sites (such as my own site - CraigZoom.com), did have 'craig' in the name, so I can see where Craigslist could go after that. However, I'm not sure they have grounds for going after search engines. The problem with Craiglist is that they only offer local search, and many people want to find items either nationally, or throughout a state. Going to each Craigslist micro-location url is very cumbersome. I've taken down my site and forwarded the url to http://247classifiedads.com, where I've posted part of the cease and desist notice so that my users can see why the site is down. I have over 300 comments on the site already, and everyone is clearly upset that Craigslist is going after us. I'm thinking about putting the site on a new domain. Can URL forwarding can be considered copyright infringement? In answer to your last question, courts have found that forwarding a URL or linking to a URL can be copyright infringement if the person creating the link knew or had reason to know that the link was for unauthorized copying and encouraged it. Even though we don't think you were threatened with copyright infringement -- Craigslist's standard cease and desist letter is based on a breach of the user agreement, not copyright infringement -- we still think the same principles of unauthorized behavior apply. So, If you dont want to get mail from Craigslist attorneys, avoid URL forwarding or linking to mirror sites.
The End User License. We're not sure how cases like yours will resolve in court but we believe Craigslist has a strong argument regarding enforcement of its end user license.  Everyone who joins Craigslist is faced with the screen shown above before joining -- and by clicking "I  Accept" you entered into an enforceable agreement (which Craigslist believes you breached). As you correctly point out, your situation is further weakened by the use of "Craigs" in your site name and domain name. Craigslist's attorneys don't like that because it implies an association or endorsement. We're sorry to report that you may have to rethink your business model.
PS. We've looked at similar Craigslist issues (and examined the end user license) in January and March 2012,

Copyright or Design Patent?

Dear Rich: I was paid to design jewelry for someone's wedding and now I'm afraid the client thinks she owns the design. I'd like to figure out how to best protect so it won't get stolen. Should I get a design patent or a copyright? First, check any written agreements you may have with the client (and yes, electronic agreements count) to be sure you haven't assigned your rights in the design. If you're unsure, review this article and this one, too.
Copyright or design patent? The rights you get with a design patent are considered to be broader or more powerful than a copyright. That's because you don't need to prove that an infringer saw your work and copied it -- all that matters is that the two works are the same. But that advantage may prove more valuable for those designers who can afford to obtain the design patent (as well as to enforce it). The design patent application and filing process can take a year or more and cost one to two thousand dollars. A copyright is automatic -- it exists once you create the work -- and registration, which provides benefits if you need to chase someone, typically takes three to six months and costs approximately $50 to $65. Copyright will last for your life plus 70 years; a design patent lasts for 14 years. In addition, there are many rules for design patents that could disqualify it as an option for you. For example, if your design has been offered for sale or images of it have been published more than a year ago (referred to as the one-year rule), you cannot now file for a design patent. (Note these rules will change on March 16, 2013, when the U.S. moves to a first to file system.) Finally, not all art can be protected under copyright and not all designs are protected under design patent law. Copyright law does not protect functional designs; and the USPTO will not issue design patents for 'surface ornamentation' (that is, two-dimensional illustrations such as drawings). So, if you're only decorating the surface of an object, you may not qualify. Here's more on design patents.

How Much is Paid for Life Story Rights?

Dear Rich: What compensation is typically given to the subject of a life story from the proceeds of the book and/or movie? Do they have rights to receive any? You don't always get paid just because someone creates a book or movie based on your life story. For example, no paychecks were written to Maggie Thatcher, George Bush or Serge Gainsbourg for their recent biopics (all good films btw, though the Dear Rich Staff especially loved Serge's story). If a story is about a public figure and can be told based on public records, existing news articles, and other public facts -- for example, as in this film -- then it's unlikely that the filmmakers will seek rights from the parties depicted in the film. Payments for rights are more likely to be made in films such as The Blind Side involving private figures and for which the cooperation of the depicted parties is required (such agreements are sometimes referred to as Cooperation Agreements, Consulting Agreements, or Life-Rights Agreements). When permission is sought, it is usually to prevent three types of legal claims, right of publicity, defamation, and invasion of privacy. Often these deals permit fictionalization and release the producers from any claimed injuries resulting from how the character is depicted.
How much is paid? According to Dina Appleton's book, Hollywood Dealmaking: Negotiating Talent Agreements, $25,000 to $100,000 is typically paid for TV life story rights, and between $100,000 and $250,000 is paid for motion picture life story rights. Sometimes a fraction of this payment (for example, 10%) is paid as an option and the remainder is only paid if the TV show or film goes into production.
P.S. Check out our previous life-rights post.

Wants to Copyright Public Domain Photos

Mrs. Tibitts (circa 1860)

Dear Rich: I am starting a small business and I want to use some old photos (pre-1923) on my packaging. Two questions:(1) If I purchase a pre-1923 photo and it becomes my physical property, can I copyright the image (even though I didn’t take the picture)? (Essentially, if I am going to print out a bunch of packaging with this image, can I protect it?) (2) I Google-imaged some specific search criteria and several images that I would like to use for my packaging came up. When I clicked on the images I would usually end up on a blog or Flickr. Let’s say the image in question was taken pre-1923 and it is on a person’s blog. Can I still use that image for my packaging? Short answers: (1) No. (2) Yes.
Longer answer (1) Once something's fallen in the public domain as a result of old age (as has all photography published in the U.S. before 1923), it cannot be reclaimed. If you modify a public domain work --  add additional imagery, unique coloration, or anything else arty -- you can claim your combination of old and new. But you will never be able to stop someone from reproducing the underlying public domain image with one possible exception. If you use a public domain image as your product's trademark, you may be able to stop competitors from using the same image on similar goods under trademark law.
Longer answer (2) It doesn't matter if someone "discovers" a public domain work and publishes it at their blog. If it's public domain, anyone can reproduce it. For more on the public domain, check out Steve Fishman's excellent book.

Wants to Reclaim Videogame Rights

Dear Rich: I work in the computer games industry. Years ago (1993) I worked for a company that folded and it's intellectual property (it's back catalogue of games) was purchased by a third publisher/developer that has done nothing with those titles specifically since they acquired them and apparently done nothing at all in the last decade. There is a possibility some of the original people behind those titles (myself and the creator of those games) could do something new with the intellectual property but the current owners seem to be uninterested in any communication (if indeed they are still trading).  In summary, they bought our stuff  when the previous company went down and they have sat on it the last 15 or so years. Can we claim abandonment and take it back? The short answer is "No." We're sorry to hear that your hard work from the past is sitting on a shelf with no support from the new owner (BTW, welcome to the club -- we can't believe the over inflated price on this outdated edition). But there is no legal basis for you to "reclaim" your rights based on the current owner's inactions.
You can "grab" some rights if ... If you had created the games independently and transferred rights to the company, you could reclaim copyright 35 years after the transfer. (Here's more on the 35 year reversion rule.) But that's probably not the case if you're an ex-employee. The original company would own those rights with no right of reversion. Alternatively, anyone (not just you and the other ex-employees) can claim any trademarks (for example, the videogame names) if the current company has stopped exploiting the games and has no apparent intention to resume. (Here's more on trademark abandonment.)
Course of action. If you think there's a chance the games can make some money perhaps the company would be more responsive if you offered them a deal --  for example, you'll grant them a royalty of future revenues. (PS Try to avoid providing an advance to keep your risk factor down.)

Freud and The Public Domain: Second TIme Around

Dear Rich: We know that Freud's works have entered public domain. However, his 'Project for a Scientific Psychology' was not published during his lifetime, but only in 1950. Is it also in the public domain and can it be freely cited? Do we really know that all of Freud's works have entered the public domain? We weren't so sure when we answered a similar question last year, and public domain expert (and author of our favorite PD book) Steve Fishman reported to the Dear Rich Staff that the original German versions of all of Freud's works are public domain in Europe and most other countries. Translations may still be under copyright. In the U.S., Freud's works published before 1923 are all public domain including translations (and available online from Google ). Freud's works first published between 1923-1963 in the U.S. are public domain if not renewed. "Project for a Scientific Psychology" was written in 1895 and remained unpublished until 1950 when it was translated into English. Therefore, the work would be public domain in U.S. if not renewed in 1978. Steve reported that he could find no renewal record for this work which creates the presumption that the work is now public domain.

Can We Do Themed Bento Box Book Using Star Wars, Lego and Snow White?

Dear Rich: I am writing a book about themed-Bento boxes and am getting ready to sign the contract except I'm concerned about  one of the provisions. It says that if I deliver anything that contains "materials produced by another person or taken from another previously published or copyrighted work," I have to get "valid written permission(s) from the proprietors." If I don't do that the Publisher can get the permission and charge me for it. The provision goes on to say that I indemnify the Publisher for any third party claims of infringement. I am planning to include many heavily themed Bento boxes including a Stars Wars box, a Lego shaped box, and a Snow White box. In the Star Wars box, I would include things like a skewer of grapes made to look like a light saber or a Yoda made from apple slices. For the Snow White box, I was thinking that I would use one of those Snow White cookie cutters to make a sandwich, but I could easily skip that part to avoid the Disney reach. The titles for the boxes can be flexible. How does that provision affect what I'm planning to do? We’re very excited about your question because it allows us to use several SEO-busting keywords like “Star Wars,” “Disney,” and “Lego” in our entry (a trifecta for Dear Rich Google Analytics). You've done us a great service, at least until we get dinged by Panda, Penguin, or some other black and white animal Google algorithm. By the way, we’re getting a lot of contract provisions to review these days. We hope that’s a sign that people are getting more contract offers … especially book contracts.
Right, you had a question. Because you're creating a how-to type food book-- not selling themed-Bento boxes -- we don't think you will need trademark permission. Activities like creating and photographing Yoda apple slices or a Snow White shaped sandwich, don't seem to be a trademark problem, especially if you're using a licensed cookie-cutter. (Note that as we speak, Disney lawyers are seeking to register the fairy tale moniker for processed fruit snacks). As for the Lego Bento box, we think an authorized Bento box would be a better choice for your book (versus creating a fake lego box). In general, your use of Disney, Star Wars and Lego, feels like an editorial/informational use (explained in a previous entry). In other words, you're less likely to trigger infringement if you write about or comment on trademarks. What you can't do is imply an association with, or dilute or tarnish these marks, for example, produce a whole Star Wars Bento box book (more Stars Wars recipes, here).
Copyright. You're probably fine reproducing these Bento versions of copyrighted characters without permission. It's possible, though doubtful, that some over-caffeinated general counsel may send a cease and desist claim but nowadays most media-savvy companies shy away from overzealous pursuit of iffy copyright claims (especially claims like these that may be excused by fair use).
Indemnity. Indemnity provisions are really a drag. Under your provision, you must get all necessary permissions and if a third party sues you for infringement, you're on the hook. So, despite our belief that permission may not be necessary, if your publisher disagrees, you'll have to either deal with it (good luck getting permission from this gang), pay for your publisher's permissions, or remove the material upon request by your publisher. Another possibility is that the publisher will be oblivious to the whole issue and nobody will ever complain. We hope that's the case.

She Has Non-Compete in Book Contract

Dear Rich: I have a contract for a book that will contain entries from my website. In addition to my own site, I write a regular freelance column and occasional one-off articles on a certain subject for print and online publications. The freelance work I produce is not identical to what I'm planning to include in the book but there is a lot of overlap in the basic information (suggested lists of supplies, how to use cookie cutters, etc.) Considering the clause, below, that came with the contract, would my own site, my freelance column and my one-off articles be deemed to be competitive? The clause reads as follows:

 NON-COMPETITION. The Author shall not prepare or be concerned in the preparation other than for the Publisher of any work which shall be an expansion or abridgment of the current Work, in whole or in part, or of a nature likely to affect prejudicially sales of the current Work. The Author will consult with Publisher before publishing or producing another work likely to affect prejudicially the sales of the Work herein contracted for.

How long? Our initial concern about this provision -- besides the fact that it doesn't accurately define a competing work, and is written in a funky old-school contract writing style -- is how long the provision can be enforced. Since no time period is mentioned, we assume it's enforceable for the term (time period) of the agreement. We don't know what the term is, but it should be written somewhere in your agreement. In book contracts, it's typically for as long as the book remains in print (see our previous entry) or for the length of copyright. In either case, that's a long time. So, if you have the bargaining power, you might want to put a timer on this one -- for example, to preface the provision by saying, "For a period of one year, following publication of the Work, the Author shall not ....
What's competing? Our second concern is that it doesn't clearly define a competing work. It's no accident that this provision is vague. In the minds of some attorneys, ambiguity increases the breadth of coverage because it makes it possible to threaten and intimidate an author over any type (as long as it will "affect prejudicially sales") or size ("an expansion or abridgment") of work.  An author with some bargaining power would want to limit this to a specific thing -- for example book-length works on the same specific topic. Also, if the contract contains a clause providing a right of first refusal for your next work (the publisher has first dibs on your next book), you should add language saying that if the publisher doesn't want to publish it, that your second book will not be considered a competing work.
Does your other stuff compete? Because the provision is so vague, we can't say whether the publisher will care about your other works and if so, what will the publisher do. If we were a betting blog, we would bet that the publisher probably won't care or do anything. First, they're probably aware that you're the expert on this particular subject and they're aware of your site and your freelance column, so they won't want to put a halt to this type of self-promotion -- it helps the book. Your one-off articles may or may not trigger friction. That depends on who is publishing them and where they are being published. One way to secure your position is to include a mention of the book in any of these efforts as that way you can make a reasonable argument that they are promotional not prejudicial.
Just sayin'. If you speak with one of the editors or publisher reps, you may want to discuss these concerns. The publisher may not change the contract (which will ultimately control what happens) but they may assure you that the provision is rarely enforced.
PS Feel free to send our contracts book to the company's legal counsel.

Wants NDA+ for Taiwanese Manufacturer

Dear Rich: I’m trying to find a triple-N agreement to send to my Taiwan manufacture (NNN = non-disclosure, non-use and non-compete). I am concerned that customers in the Far East will try to get him to manufacture our product directly for them. If we have a good NNN agreement, it will help dissuade him from doing that. Can you direct me to any resources? We've spotted a few of these templates floating around the Internet, but from our research (and limited experience) it's not a good idea to use off-the-shelf NDA-type agreements with foreign manufacturers. The main reason is enforcement: a manufacturer that operates solely in the People's Republic of China (ROC) would only be subject to Taiwanese law and you would need to rely on ROC courts to enforce the agreement. That reduces the chances of enforcing an English-language off-the-shelf agreement -- particularly if you are relying on American style injunctive relief (a hard sell in some Asian courts).  The only way to increase your chance of enforcement is to show the manufacturer that you mean business by preparing a properly translated agreement that caters to the laws of the ROC -- or Peoples' Republic of China (PRC), depending on who is really in control in Taiwan. That means engaging an English speaking lawyer who is familiar with ROC laws. For more information, you may wish to check these two articles: one explains why a Triple-N agreement is the way to go with Chinese manufacturers, and the second explains the common pitfalls when trying to make the agreement enforceable.
An exception .... One exception to the rules expressed above is if the foreign manufacturer has a presence in the U.S. -- for example, there's a U.S. subsidiary or headquarters. In that case, the company is likely to be subject to U.S. jurisdiction and you may be able to enter into a typical template agreement. If you're seeking a basic NDA for various purposes, we've uploaded a collection of agreements with explanations.

Wrong Author Listed on Book

Dear Rich: Is there an issue if my name is on a book by mistake? That's what happened to me. My name was credited for a book that I did not write. I did write one version of the book but they did not use it. There would only be an issue if you or the real author believe that the attribution error resulted in an injury. If you feel, for example, that the mistaken listing defames your reputation, makes use of your name to endorse a product without your permission, or subjects you to emotional distress (or some similar claim), you can pursue the publisher. The real author may have different claims. For example, the contract between author and publisher may have requirements for attribution and this snafu may result in a material breach. Alternatively, the author may claim a false designation under the Lanham Act, or under some circumstances, copyright infringement.  In cases involving famous authors, "errors" like these cause class action lawyers to salivate.