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Ownership of book design file

 
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Layclerk
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PostPosted: Tue Jan 29, 2013 4:54 pm    Post subject: Ownership of book design file Reply with quote

I have recently had a book published for the first time, getting into and dealing with publishers has been a large learning curve (and still learning).

I had supplied a company with an indesign file showing the layout of my book of which I own copyright on all images and text.

I paid the company for a specification of size, quality, quantity etc, and in their specification the price included all in house editorial work, modification of my design and layout. So basically they have tidied up the design and published the book for me.

I am now looking for a reprint but before asking for a copy of the finished indesign so that I may gather other quotes I ask the question are they obliged to let me have it.

It seems to me that I had done the main design and they just tidied it up for printing, any advice would be welcomed.

many thanks in anticipation.

Lc
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AndyJ
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PostPosted: Tue Jan 29, 2013 9:02 pm    Post subject: Reply with quote

Hi Layclerk
In strictly copyright terms I think you not only own the copyright in the text and illustrations, but also in the typographical layout. These are two different things, the latter lasting for 25 years from the end of the year of first publication.
This is on the assumption that all that the publishers did was very minor tidying up. This assessment is based on what occurs where an author's work is tidied up by a literary editor, where the literary copyright remains with the author since the editor's 'contribution' is not classed as sufficiently creative or important to attract copyright.
However I suspect that the publishers will not necessarily agree with me. Did you sign any form of contract with them? It may be that if you did, the contract will cover this particular aspect, probably in a specific waiver by you to any rights in the typographical layout copyright. If that is the case, then you would face an uphill battle against the publishers, which would revolve around whether this is a fair term in this particular case and whether it was sufficiently explained to you, since you as first time author might not have been expected to know what this clause (assuming there was one) meant.
However, all is not lost if you can not get the publishers to agree, since you can take your original layout to another publisher/finisher for them to produce a separate edition which would not infringe the first edition.
Good luck with your book project
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Layclerk
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PostPosted: Tue Jan 29, 2013 9:59 pm    Post subject: Reply with quote

Thankyou Andy for your response.

I have just looked through the emails and as far as I can see no contract has been signed or sent to me.

Prior to sending the initial payment I did specify

"We would supply the Indesign information to you and the setting out would be carried out as close to our original design as practical, obviously combining your professional experience, supplying a draft copy for approval prior to publishing"

So I don't see any reason why they should not supply a copy, I shall give it a go.

If not, as you mentioned, I do have my original that just requires small changes to use for reprints from another printer.

I shall ensure that this is covered next time, also read up on ISBN which is another subject I hadn't really grasped.

Onwards and upwards.

Many thanks.

Lc
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Layclerk
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PostPosted: Thu Jan 31, 2013 1:02 pm    Post subject: Reply with quote

Update.

they have informed me that I cannot have the indesign file as they hold copyright to the page layout and design but in all it is an almost identical copy of my design I sent to them.

If I set it out to how my original file was am I infringing the copyright as mine predates theirs.
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typonaut
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PostPosted: Fri Feb 01, 2013 12:48 pm    Post subject: Reply with quote

Layclerk wrote:
Update.

they have informed me that I cannot have the indesign file as they hold copyright to the page layout and design but in all it is an almost identical copy of my design I sent to them.

If I set it out to how my original file was am I infringing the copyright as mine predates theirs.


As I understand it protection of typographic layout is a fairly limited right, since to infringe the right the pages have to be identical (or very close to it).

We don't know what work the publisher has undertaken on the file you supplied to them. If you have supplied to them the entire book, and they have just edited it, then the best that they can claim is that they have a joint authorship right in the design/layout. But, to prove this they would have to show that they had done something that added significantly to the work, not just something that would have been expected of someone skilled in the trade.

By analogy, in Hadley v Kemp [1999] EMLR 589 (I can't find a link to this case, but you can read the relevant point made in Sawkins v Hyperion Records Lts at paragraph 58-60), the court found that the musicians playing on the recordings of Spandau Ballet had not established themselves as joint authors of the songs, as they had just done what was expected of them as professionals - specifically the saxophone player was not a joint author with Kemp for his contribution of the sax solo in Gold.

Conversely, in Hodgens v Beckingham the court found that the fiddle introduction to Young at heart did establish a right of joint authorship.

I think your case probably falls into the former category, and you should demand the files back, and tell them that they are not the authors of the layout/design - if it is true that they have only done minor editing/preparation for production.
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AndyJ
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PostPosted: Fri Feb 01, 2013 1:40 pm    Post subject: Reply with quote

Hi again Layclerk,
Unless you think it is really worth the hassle and possible cost of trying to get the indesign file, I would be inclined to say, just use your own original layout of the text for any second edition.
I think Typonaut and I agree that the publishers probably don't have a valid claim to the copyright in the typographical layout - based on what you have told us - and so I don't think it likely that re-publishing your version will cause you any problems. It will then be up to the publishers to test their claim to hold copyright, but I don't think they will, especially if they take legal advice first.
Just one minor comment on Typonaut's reply.
Quote:
If [ .. ] they have just edited it, then the best that they can claim is that they have a joint authorship right in the design/layout.

If the publishers had done enough original work in preparing the layout to qualify for copyright in the typographical layout of the published edition, then they will own that specific copyright absolutely, and not jointly with you. This is somewhat similar to when a sound recording is made of a performance. The producer of the recording becomes the owner of the copyright in the sound recording (assuming it was made with the permission of the performer) and the performer is merely entitled to equitable remuneration from any sales of the recording, but has no ownership rights.
Joint ownership of copyright only occurs where the contributions of each party cannot be disentangled from one another. Clearly in this case you produced the first version, and they then made an adaptation of it, and always assuming there was sufficient extra original input, the new work would be entitled to copyright as a separate work.
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typonaut
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PostPosted: Fri Feb 01, 2013 2:56 pm    Post subject: Reply with quote

AndyJ wrote:
Just one minor comment on Typonaut's reply.
Quote:
If [ .. ] they have just edited it, then the best that they can claim is that they have a joint authorship right in the design/layout.

If the publishers had done enough original work in preparing the layout to qualify for copyright in the typographical layout of the published edition, then they will own that specific copyright absolutely, and not jointly with you.


I think in this case that isn't correct. Ladyclerk has sent them the entire InDesign file (or at least that's how I understand it), that file and its subsequent output represents a typographic layout on its own. Someone editing that file (unless quite radically, so that there was no substantial part of the original left) could only gain, at best, a right of joint authorship.

AndyJ wrote:
Clearly in this case you produced the first version, and they then made an adaptation of it, and always assuming there was sufficient extra original input, the new work would be entitled to copyright as a separate work.


I agree with that in so far as it creates a separate work, but that does not mean that is not a work of joint authorship. As I've referenced above Hodgens v Beckingham creates a work of joint authorship. The interesting part about this case, which I don't think is discussed in the judgement, is that there is an earlier version of Young at heart, by Bananarama, which does not have Beckingham's fiddle playing on it.

Hodgens' evidence is similar to Kemp's (in Hadley v Kemp), in that the song was fully formed before Beckingham performed on it. If I'm right that the Bananarama version pre-dates the Bluebells version, then the Bananarama version is a standalone version with copyright to Hodgens, and the Bluebells version is a work of joint authorship with Beckingham.

You see how this is similar to the facts in Ladyclerk's dispute?
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AndyJ
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PostPosted: Fri Feb 01, 2013 11:13 pm    Post subject: Reply with quote

Typo,
On the basis that we are speaking hypothetically because I don't think in this instance the publishers have any separate copyright, any work (other than a film or broadcast) which is created in two separate stages is going to be co-authored, not jointly authored, because the elements each author contributes are separable.
s10 (1) is fairly clear on this:
Quote:
10 Works of joint authorship.
    (1) In this Part a “work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.

    (1A) A film shall be treated as a work of joint authorship unless the producer and the principal director are the same person.
    (2) A broadcast shall be treated as a work of joint authorship in any case where more than one person is to be taken as making the broadcast (see section 6(3)).
    (3) References in this Part to the author of a work shall, except as otherwise provided, be construed in relation to a work of joint authorship as references to all the authors of the work.

This is where your musical analogies differ from the case Layclerk has raised, because once a song has been created through a collaborative improvisation it is nearly impossible to un-pick each artist's individual contribution from the whole. They are truly joint works. Mr Justice Blackburne made this very point at [41] during the first trial in the case of Fisher v Brooker [2006] EWHC 3239 (Ch). And he found that Matthew Fisher (the organist in the group Procol Harum) was indeed a joint owner of copyright in the song a Whiter Shade of Pale. Although this case went to the Court of Appeal and ultimately to the House of Lords, the finding as to copyright ownership remained unchanged, the appeals being about whether Fisher was entitled to a share of past royalties.
So with Layclerk's example, we have his work and we have have the final work as produced by the publisher. It is possible to compare the two and see where the publisher made changes. On that basis the court could easily see those differences and form a judgement as to whether the new work was worthy of copyright as an adaptation; that cannot easily be done in the music cases you cited.
As for your other remark, I think you may be missing the point that Layclerk's work was not a 'published' edition therefore it did not, at the stage he gave it to the publishers, qualify for typographical layout copyright under s8:
Quote:
8 Published editions.
(1) In this Part “published edition”, in the context of copyright in the typographical arrangement of a published edition, means a published edition of the whole or any part of one or more literary, dramatic or musical works.
(2) Copyright does not subsist in the typographical arrangement of a published edition if, or to the extent that, it reproduces the typographical arrangement of a previous edition.

Only the published edition qualifies and therefore it is a matter of deciding who was the author of that published edition. If the publishers had radically altered the layout so that there was no substantial part of the original left, that would not have infringed any layout copyright as none existed prior to that stage.
s9 (d) is clear about who is the author of the published edition, namely the publisher:
Quote:
9 Authorship of work.
(1) In this Part “author”, in relation to a work, means the person who creates it.
(2) That person shall be taken to be—
    1(aa)in the case of a sound recording, the producer;
    (ab)in the case of a film, the producer and the principal director;
    (b) in the case of a broadcast, the person making the broadcast (see section 6(3)) or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast;
    (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
    (d) in the case of the typographical arrangement of a published edition, the publisher.

This section of course largely predates the concept of desktop publishing, and so if the publisher made no significant changes then I believe Layclerk effectively subsumes that publisher's role as far as the typographical layout is concerned, and the publisher here becomes merely the distributor of the finished product.
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Layclerk
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PostPosted: Sat Feb 02, 2013 12:09 pm    Post subject: Reply with quote

Firstly my thanks for your responses, it has given me lots to consider. Andy having looked at your last response I did publish the layout supplied to the publishers in Blurb, not sure if this is official publishing?

Lc
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AndyJ
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PostPosted: Sat Feb 02, 2013 2:02 pm    Post subject: Reply with quote

Hi Layclerk,
Thanks for the additional information. I am not too familiar with all aspects of Blurb, but it seems possible that making your book available there would amount to publishing as defined in s175 (1)(b):
Quote:
175 Meaning of publication and commercial publication.

(1) In this Part “publication”, in relation to a work—

    (a) means the issue of copies to the public, and

    (b) includes, in the case of a literary, dramatic, musical or artistic work, making it available to the public by means of an electronic retrieval system;

and related expressions shall be construed accordingly.

(2) In this Part “commercial publication”, in relation to a literary, dramatic, musical or artistic work means—

    (a) issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public, or

    (b) making the work available to the public by means of an electronic retrieval system;


and related expressions shall be construed accordingly.

(3) In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to publication of the work.

(4) The following do not constitute publication for the purposes of this Part and references to commercial publication shall be construed accordingly—

    (a) in the case of a literary, dramatic or musical work—

      (i) the performance of the work, or

      (ii) the communication to the public of the work (otherwise than for the purposes of an electronic retrieval system);

    (b) in the case of an artistic work—

      (i) the exhibition of the work,

      (ii) the issue to the public of copies of a graphic work representing, or of photographs of, a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship,

      (iii) the issue to the public of copies of a film including the work, or

      (iv) the communication to the public of the work (otherwise than for the purposes of an electronic retrieval system);

    (c) in the case of a sound recording or film—

    (i) the work being played or shown in public, or

    (ii) the communication to the public of the work.

(5) References in this Part to publication or commercial publication do not include publication which is merely colourable and not intended to satisfy the reasonable requirements of the public.

(6) No account shall be taken for the purposes of this section of any unauthorised act.

but only if you had offered it for sale on Blurb (otherwise subsection (5) would probably apply).

So if the appearance of your work on Blurb was publication then effectively the publisher's version would have been a 'second' edition. Only if their version was significantly different to yours would the typographical layout protection kick in, as s8 (2) (which I quoted in an earlier post) would in all probability apply. Which returns us to the earlier issue of how much change would be necessary for it to qualify as a new edition.
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typonaut
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PostPosted: Wed Feb 06, 2013 12:08 am    Post subject: Reply with quote

AndyJ wrote:
Typo,
On the basis that we are speaking hypothetically...


I think we agree that the "publisher", that Layclerk discusses, probably does not have any rights claims on the "book", in any terms.

I don't really have the time to go right through this, but I think that rather than citing statute we should think about the meaning of some of the terms used. Probably most important is the term "publisher". In this instance I think it is at least arguable that Layclerk is the publisher, rather than the company that output and distributed the title. Because, as I'm understanding it, the process probably involves an author who has done most of the work on the literary, design and actual layout (ie file creation) of the process, and passed on the output to a company who happen to have the technical means to print it (ie they are a printing company with a print-on-demand-service).

That the printing company may have (I'm not indicating that they have) edited Layclerk's file enough that a new work comes to be formed also indicates that there could be a claim of joint authorship - because I think it is impossible to separate the difference in the two files without destroying the later file. In so far as the ownership of rights to the typographic layout I think that one needs to look behind the entire process, this includes asking who is the actual publisher (not who is named as publisher or who owns the printing press) and how that layout came into existence.

This is entirely inline with Beckingham v Hodgens, since it is clear that a version of Young at heart (by Bananarama), predating the version by the Bluebells, and without Beckingham's fiddle playing, exists. In your terms the works can be untangled, because we need only look to the Bananarama version of the song to see what the differences are. However, the court found that this was a work of joint authorship.

The converse is true in Hadley v Kemp, where the sax player on Gold is effectively told that his input has no protection in copyright.

I would also argue against your stand that the file has no copyright protection outside of its typographic layout as a published edition. It is, again, at least arguable that it falls within the ambit of literary works - as the author has used skill and judgement in constructing a layout, and the "literature" that results from that skill is apparent when examining the file structure. That is, the file has its own copyright as software (or at least as a database).

Although I have not seen this argument used within UK cases (that manipulation of a file via an application creates a work) I have seen the text of a judgement in a case in the USA (Adobe v Southern Software Inc) that leads me to believe that this is a reasonable argument.
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Layclerk
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PostPosted: Tue Jul 02, 2013 8:39 pm    Post subject: Reply with quote

UPDATE.

many thanks for the previous advice, something has now come to light that I would welcome your advice on.

I have since discovered that the isbn number that the publishers used on my book does not exist, I can only assume that it was either an oversight or that they decided somewhere not to spend the money on a number and registering it.

I have emailed nielsen/isbn to confirm this to me before I take any action.

Should I find that they have not taken out an isbn would I be allowed to take one out to give me publishing rights. Am I required to notify them of this as there was no written contract (which has caused these problems in the first place, lesson learned!)

I am well on the way to producing a new book that has steered clear of infringing any typographical layout rights and shall be self publishing with my own isbn but would feel better if I had this covered.

many thanks

Lc
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AndyJ
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PostPosted: Tue Jul 02, 2013 9:41 pm    Post subject: Reply with quote

Hi Layclerk,
Nice to hear from you again.

I'm not sure I can offer much advice on ISBNs, but my understanding is that a new edition of a book (ie not a reprint) would normally be given a new ISBN, therefore this seems appropriate for what you propose, irrespective of whether the original publishers did or didn't go through the registration process.
Also I don't think an ISBN is in any way a prerequisite for 'publishing rights', merely something which will facilitate the stocking and selling your book. According to Wikipedia Amazon refuse to stock books that don't have a valid ISBN.
Although you don't have a written contract with the publishers, it may well be the case that applying for a valid ISBN would be an implied term of the informal contract which you formed with the publisher, and their failure to do so might amount to a breach of that contract. However I suggest that pursuing a breach of contract suit is not really going to be an economic proposition, although this omission may strengthen your hand if the publishers try objecting to you publishing this book yourself.
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