Stephen Best, APA National CEO
APA wants you to be aware of the Google Book Search Settlement and how it may be a benefit to you. If you are an author or publisher and the copyright holder of a book or of a book and the photographs in the book, this is valuable information for you. A Class Action lawsuit was filed against Google for scanning-in copyrighted books, inserts, and displaying excerpts without permission. Google denies the claim but a settlement has been reached.
Michael Grecco, APA’s Chairman of its Advocacy Committee, is posting this letter to share vital information with you.
Dear APA Members and Members of the Photographic Community,
APA has been working for several weeks to obtain the details of the Google Settlement in order to explain it to you. Originally we were told that photographers were not part of the settlement but we pushed for either a reason why or a more clear understanding of who might be included. The definition of who was included is below from the class action attorneys. It is very specific, please read it carefully.
The definition of Books in the Settlement Agreement includes books with photographs. However, under the Settlement Agreement, photographs in books will only be displayed if a copyright owner of the photographs also owns a copyright in the book. Thus, your books of photography are covered by the Settlement (to the extent published, registered and subject to a U.S. copyright interest by January 5, 2009), and the photographs in those books may be displayed under the Settlement if you own a copyright in such photographs, subject to your rights under the Settlement to exclude your books (or portions of your books such as particular photographs) from one or more display uses.
The specific definitions are below but the principle rule is you have to be the copyright holder of the book and the copyright holder of the photos in the book. You cannot be the copyright holder to the photos only to be a participant.
Read the final Notice to determine if there are any steps you need to take. You may remain in the settlement, object to or comment on the settlement, opt out to maintain a right to sue Google independently, or file a claim for a cash payment.
I hope this helps.
Sincerely,
Michael Grecco
Chair APA Advocacy Committee
APA National VP
Who Can Participate?
Definitions from the Notice of United States District Court for the Southern District of New York, LongFormNoticeFINAL, pages 7-8.
• You own a “U.S. copyright interest” if you own, or have an exclusive license in, a copyright protected by United States copyright law. For example, if you are an author, you own the copyright in your Book (unless you have completely assigned all of your copyright interests to another person or unless you wrote the Book as a “work for hire”). You also own a U.S. copyright in a Book if you have the exclusive right to publish that Book in the United States or if you have the legal right to sue another for infringing your rights in the Book. Several persons may have U.S. copyright interests in the same Book, such as co-authors, an author and a publisher, and heirs of an author.
BOOKS
• For purposes of the Settlement, a “Book” is a written or printed work on sheets of paper bound together in hard copy form that, on or before January 5, 2009:
• Was published or distributed to the public or made available for public access under the authorization of the work’s U.S. copyright owner(s); and
• Was registered with the U.S. Copyright Office, UNLESS the work is not a United States work under the U.S. Copyright Act, in which case such registration is not required; and
• Is subject to a U.S. copyright interest (either through ownership, joint ownership, or an exclusive license) implicated by a use authorized by the Settlement. See Question 9 for such uses.
EXCLUDED from the definition of “Book” are the following:
• Periodicals (e.g., newspapers, magazines or journals). See Section 1.102 of the Settlement Agreement for a full definition of “Periodicals.”
• Personal papers (e.g., unpublished diaries or bundles of notes or letters).
• Sheet music and other works that are used primarily for the playing of music. See Section 1.16 of the Settlement Agreement for a more detailed description of these works.
• Public domain works, meaning works that are in the public domain under the U.S. Copyright Act.
• Government works, meaning written works that are not subject to copyright because they are authored by the U.S. government or that are subject to equivalent treatment under any state’s law, as defined in Section 1.64 of the Settlement Agreement.
Inserts
For purposes of this Settlement, an “Insert” must:
• Consist either of (1) text, such as forewords, afterwords, prologues, epilogues, poems, quotations, letters, textual excerpts from other Books, periodicals or other works, or song lyrics; or (2) tables, charts, graphs, musical notation (i.e., notes on a staff or tablature); or (3) children’s Book illustrations; and
• Be contained in a Book, government work or public domain book published on or before January 5, 2009; and
• Be protected by a U.S. copyright, where the U.S copyright interest in the Insert is held by someone other than a Rightsholder of the Book’s “Principal Work.” “Principal Work” is further defined in Question 8(C) below. For example, if you own rights in a poem that is contained in a Book for which you also hold a U.S. copyright interest, then your poem, as it appears in your Book, is not an Insert; however, it would be an Insert if the poem is contained in a Book for which someone else holds the U.S. copyright interest; and
• Be registered, either alone or as part of another work, with the U.S. Copyright Office on or before January 5, 2009, UNLESS the Insert or work is not a United States work under the U.S. Copyright Act, in which case such registration is not required.
EXCLUDED from the definition of “Insert” are:
• Pictorial works, such as photographs, illustrations (other than children’s Book illustrations), maps and paintings.
• Works that are in the public domain under the U.S. Copyright Act.
For purposes of receiving payments for the use of Inserts, the Settlement identifies two types of Inserts:
“Entire Insert,” which is an Insert that is an entire work, e.g., forewords, afterwords, introductions, entire works included in anthologies, entire poems, entire short stories, the entire lyrics of a song, and entire essays. “Partial Insert,” which is any other type of Insert, e.g., excerpts from a Book or magazine article, quotations, and stanzas from poems or portions of a song’s lyrics.
Legal Information Re: Google Book Search Settlement
As an author your legal rights may be affected by the proposed settlement of a class action lawsuit regarding Google’s scanning of books and other writings. A summary of the Google Book Search settlement appears at the end of this email. Please read this summary carefully. If you have questions about the settlement, please visit http://www.googlebooksettlement.com or email the Settlement Administrator at BookSettlement@rustconsulting.com.
Persons Outside the United States: This settlement may affect you because it covers
U.S. copyright interests in books published outside the United States. If you hold such an interest in a book or other material in a book, this settlement will bind you unless you timely opt out.
If You Are a Book Author, Book Publisher or Other Person Who Owns a Copyright in a Book or Other Writing, Your rights may be affected by a class action settlement regarding Google’s scanning and use of Books and other writings.
Authors and publishers filed a class action lawsuit, claiming Google violated the copyrights of authors, publishers and other copyright holders (“Rightsholders”) by scanning in-copyright Books and Inserts, and displaying excerpts, without permission. Google denies the claims. The parties have agreed to a settlement. This summary provides basic information about the settlement. “Books” and “Inserts” are described below.
What Does the Settlement Provide?
The settlement, if Court-approved, will authorize Google to scan in-copyright Books and Inserts in the United States, and maintain an electronic database of Books. For out-of-print Books and, if permitted by Rightsholders of in-print Books, Google will be able to sell access to individual Books and institutional subscriptions to the database, place advertisements on any page dedicated to a Book, and make other commercial uses of Books. At any time, Rightsholders can change instructions to Google regarding any of those uses. Through a Book Rights Registry (“Registry”) established by the settlement, Google will pay Rightsholders 63% of all revenues from these uses. Google also will pay $34.5 million to establish and fund the initial operations of the Registry and for notice and settlement administration costs, and at least $45 million for cash payments to Rightsholders of Books and Inserts that Google scans prior to the deadline for opting out of the settlement.
Who Is Included?
The settlement class includes all persons worldwide who own a U.S. copyright interest in any Book or Insert. The meaning of “U.S. copyright interest” is broad. Wherever you are located, please read the full Notice to determine whether you are included in the settlement.
There are two Sub-Classes:
• The “Author Sub-Class” (authors of Books and other writings, and their heirs, successors and assigns), and
• The “Publisher Sub-Class” (publishers of Books and periodicals, and their successors and assigns).
What Material Is Covered?
“Books” include in-copyright written works, such as novels, textbooks, dissertations, and other writings, that were published or distributed in hard copy format on or before January 5, 2009. U.S. works must be registered with the U.S. Copyright Office to be included in the settlement. “Books” do not include periodicals, personal papers, sheet music, and public domain or government works. “Inserts” include any text and other material, such as forewords, essays, poems, quotations, letters, song lyrics, children’s Book illustrations, sheet music, charts, and graphs, if independently protected by U.S. copyright, contained in a Book, a government work or a public domain book published on or before January 5, 2009 and, if U.S. works, registered (alone or as part of another work) with the U.S. Copyright Office. Inserts do not include pictorial content (except for children’s Book illustrations), or any public domain or government works.
The Notice contains a more detailed description of these terms and other essential information about the settlement.
What Should I do?
Please read the full Notice, which is available at http://www.googlebooksettlement.com. Decide whether you should:
• Remain in the settlement. If you do so, you will be bound by the Court’s rulings, including a release of your claims against Google.
• Object to or comment on the settlement. You must object/comment in writing by May 5, 2009.
• Opt out of the settlement and keep your right to sue Google individually. You must opt out in writing by May 5, 2009.
• File a claim for a cash payment (if you are eligible to do so). You must file your claim by January 5, 2010.
The Court has appointed Class Counsel to represent the two Sub-Classes. If the settlement is approved, Class Counsel for the Author Sub-Class will request attorneys’ fees and expenses that Google has agreed to pay. You can also hire your own attorney at your own cost. The Court will determine whether to approve the settlement at a Fairness Hearing on June 11, 2009 at 1:00 p.m.
Get Complete Information, Including the Full Notice:
Visit: http://www.googlebooksettlement.com Call: 1.888.356.0248
Write: Google Book Search Settlement Administrator, c/o Rust Consulting
P.O. Box 9364, Minneapolis, MN 55440-9364 United States of America
[...] Blog post from the Advertising Photographers of America. [...]
[...] background on the original settlement please see the following links: APA Alert: The Google Book Search Settlement, April 15th 2009 Authors Guild Settlement Resource Page Google Book Settlement – Official [...]
Most people would agree with this, in my opinion the author could not be more right.
Although I do agree with your post, I have my own reservations.