There was a bit of a shuffle in the corner of the blog-o-sphere I inhabit this last week. An author reported that she’d been pinged for using a photo on her blog which she’d found via Google but which, it turned out, was copyright – and the photographer chased her for it.
The photographer was correct in law, and the blogger pointed out that a lot of the mythologies circulating about ‘fair use’ are just that – myths.
Even so, I got the impression the photographer was being unreasonable; he’d got his take-down, but went for compensation – and once lawyers start getting involved, any return the copyright owner might get is likely to vanish in fees. Sure, the photographer had a right to pursue; but the blogger hadn’t infringed deliberately.
Writers need to think about this. We create intellectual property. What happens if it’s stolen? Is it a matter of honour and pursuing the letter of the law to its end irrespective of cost, or should we focus on practical outcomes? I thought I’d share my experience of having my stuff ripped off.
The most common infringement of my intellectual property involves one book – Quake – Hawke’s Bay 1931 (Reed, Auckland 2001, 2nd ed 2006). For some reason it’s been viewed as public property by readers. It isn’t, of course.
The cheekiest was a high school teacher who wrote to me after photocopying part of my book. He wanted to take my material – which he’d got for nothing by borrowing the book from the library – and use it as part of a resource he was building to sell for his own profit. To this day I don’t know whether he was being disingenuous. I declined. At least he asked.
Another time I found an article taken word-by-word from one of my Quake chapters. By contract I have to advise my publishers if I discover my copyright’s been infringed. I did. Their response? They wouldn’t act because the loss of income from the theft wasn’t material.
I was free to pursue it myself at that point, but the same calculation applied. It would have cost me more – a lot more – than any compensation I’d have been able to get.
So I found myself in a position where I was in the right, where my copyright had been infringed – but where I couldn’t do anything about it. Other than write to the offending author, which I did, politely. He was very contrite about it, too, and offered to take me out to lunch. He hadn’t really lost me income from his infringement, I was satisfied it had been due to incompetence on his part, he’d made nothing out of if himself either, he’d apologised - and that was a reasonable answer as far as I was concerned.
The main infringement of my copyright material is by Google, who have taken books I’ve written that are still in print, and scanned them without permission. That is illegal under New Zealand law (whether it is republished or not) and, depending on how things go, it’s got potential to reduce any income I receive from my intellectual property – why would people buy it from a shop if they can download it for nothing from Google?
Google couldn’t even properly identify me – they conflated me with an academic of the same name, this one at the University of Exeter. Insult to injury.
The problem is that Google might actually cost me income, and yes I do need to pursue that - but the issue is the practical side of enforcement. I could initiate proceedings in a New Zealand court, but the local intellectual property law firm charges around $4000 just to issue an opinion. That’s without hiring one of their solicitors to represent me. And it’s more complex than that, too, because the intellectual property rights for around 90% of my back-list are licensed, by contract, to two of the ‘big six’ publishers, who have their own policies towards the Google program. In practise I’m going to have to wait on US court cases to work through, a process likely to take years, and then accept whatever class settlement comes out of it.
Have you had any incidents of this kind? What’s your take?
Copyright © Matthew Wright 2012