Novel Marketing

There is a new scam targeting authors. An enterprising scammer can use AI to write a book similar to your writing style. Then, they can use AI to create a cover similar to your other covers. The scammer can then publish the book with a pen name that just so happens to be your name. 

Sometimes, Amazon even puts this book in your Author Central account so customers who click your author name will see the AI book you didn’t write listed with the books you did write. Amazon might even email your fans, telling them you have a new book out. 

The crazy thing about this attack is that it might not even be illegal. It’s certainly unethical, but as far as I know, there is no way to copyright a writing style.

Maybe this kind of attack is false advertising. Maybe it violates the Lanham Act. But “maybe” is a risky place to stake your reputation. 

And this is a real problem. Jane Friedman and Chris Fox have both recently experienced this kind of attack.

It is such a new type of attack that there is no name for it yet. For the purpose of this episode, I’m going to call it “reputation theft.” Reputation theft is where someone you don’t know uses your name and style to sell their own books. 

How do you protect yourself from reputation theft? 

In this age of AI-assisted writing, how do you navigate the many other legal dilemmas authors face?

I invited Lloyd Jassin to guide us through this legal forest. He’s a literary lawyer and publishing insider. He advises writers, publishers, and literary agencies on contract, copyright, trademark, and defamation issues.

Before we begin, I want to share a quick disclaimer. It’s important to remember that the legal principles we discuss with Lloyd Jassin are subject to exceptions and qualifications and are highly fact-specific. Therefore, if you need legal advice, we strongly recommend consulting with an experienced publishing attorney who can provide tailored guidance for your unique situation.

Consider this a general education. It won’t replace advice from your own attorney.

How would you advise a bestselling author who was concerned about reputation theft?

Lloyd Jassin: For bestselling authors, I’ve registered their names as trademarks. The term is actually a service mark. Bestselling authors are providing a writing service, and providing a service is your ticket to a very cool tool that’s available to brand name authors: the Amazon Brand Registry.

The brand can be used to take down content masquerading as yours. Those kinds of issues fall under the heading of Right of Publicity, which is the right to control your name, likeness, or signature. The prerequisite, though, is that you must have a registered trademark.

Beginning authors early in their careers are unlikely to have the charisma that attaches to a brand. If you’re a brand-in-the-making, you’ll have a tough time getting a registered trademark, which is the price of admission to benefit from the brand registry.

Thomas: There’s a Hebrew proverb that says, “A rich man can pay a ransom, but a poor man has no fear” (Proverbs 13:8). You’re either not worth kidnapping because you have no money, or you’re wealthy enough to pay a ransom. You don’t want to be somewhere in between.

Lloyd: It’s an apt saying. My first recommendation is not to register your name if you’re only one or two books into your career unless you’ve had a massive bestseller.

Other tools or approaches are available to you if you’re at the beginning of your career. One approach is to register your series names. That’s a much lower bar. You can register the first book on an “intent to use” basis. The trademark office wouldn’t want me to say this, but you’re basically reserving your right to convert the title into a trademark.

Single titles are not entitled to trademark registration. When you publish your second book, if you do everything right, you will have a “specimen of use,” which shows that there are two books in the emerging series.

As you have said, Thomas, a brand is a promise that the next book will be as good as the last one. That’s the concept behind single titles not being entitled to registration while series titles are.

Thomas: Historically, authors were discouraged from creating a service mark or a trademark for their name because it was expensive. In addition to the expense of filing, you have the expense of maintaining the trademark by being able to defend it in court.

The court authors are using in these cases is not the United States court or state court. It’s the much scarier court of Amazon.

Lloyd: You’re not the only person who’s been taken aback back when I invoked Amazon as a force for good. It does seem counterintuitive, especially considering that the drums I hear in the distance say the Federal Trade Commission is coming after them.

But in this instance, Amazon acted in the interest of the public good. They’ve given trademark owners an opportunity to click boxes in their dashboards, which causes these infringers to have their works blocked.

Thomas: That’s right. But many authors are saying, “Won’t copyright protect me from this kind of attack?”

What’s the difference between trademark and copyright?

Lloyd: Trademark is what’s on the cover. Copyright is largely what’s between the covers.

The confusion stems from the fact that copyright and trademark are fellow travelers. As an author, you’re potentially the owner of a series trademark, which is a “badge of source.” A trademark says that this book comes from this particular source and it has a particular quality. Copyright is about the way you express ideas.

Trademark is about branding, packaging, and goodwill. Copyright is about content that’s expressed in a creative way. The amount of creativity needed to qualify for a copyright is quite low.

You can also use the federal government’s DMCA Takedown Provision. If you find one of your books has been infringed and you wish to take it down, you could approach the online retailer where the infringed book is being sold, fill out the form, and they will take it down expeditiously.

DMCA Digital Millennium Copyright Act and laptop.

Thomas: But it won’t work unless they’re actually violating your copyright, which protects your words. It doesn’t protect your writing style or your character named Jack. Those things aren’t protected under copyright.

However, if they copy and paste your chapter three and put it in their book, then a DMCA takedown is a very efficient method. That process is a well-worn path. It’s not exotic, and it doesn’t require thousands of dollars in legal fees. Sometimes, it just requires 20 minutes.

Lloyd: It’s an effective tool for the job. The infringer can send a counter notice if they believe the takedown notice was sent in bad faith. If they send a counter notice, the book goes back up, and then the potential plaintiff has the option to sue in federal court.

Most things that come down stay down, but that’s not always the case.

Thomas: The vast majority of DMCA takedown notices are filed by robots working on behalf of major rights holders. The music industry has robots looking for people infringing content and automatically filing the takedown notices. It’s so simple even a robot can do it.

Lloyd: That’s true. This non-generative AI has been taking over the role of paralegals for quite some time now.

Thomas: You’ve mentioned in the past that we’re living in a post-copyright world.

What do you mean by saying we live in a post-copyright world?

Lloyd: My point is that AI can emulate without infringing a copyright. It’s like a middle school student who has to turn in a paper. They can get it done efficiently, and it might qualify as plagiarism, which is an ethical violation but not one that’s recognized by law.

I’ve quipped for a while that trademark is the new copyright. And what I mean by that is the provenance of information should be important to people.

If you’re foraging for mushrooms, you may want to think twice about buying a $1.00 book on KDP that might have been generated by AI. You proceed at the risk of making the fatal mistake of not spending $19.95 for a Peterson Field Guide to Mushrooms.

The end of copyright requires me to take you on a short journey.

Copyright was designed to foster a public good to create more books and further the progress of the arts and sciences. In 1710, the Statute of Anne was passed, and that was the first copyright act. It was meant to help authors, publishers, and booksellers feel secure in investing in printing presses, which were expensive.

It gave authors and publishers exclusive rights for a period of 14 years, and then if they chose to renew their copyrights, they’d get another 14 years. It was all about scarcity of information and serving the public good. They gave authors and their publisher partners a limited monopoly so they would spend the money.

Today, we don’t have scarcity. Everybody can publish in multiple forms. Originally, though, some exceptions to copyright were built in to further the progress of science and useful arts.

The first major built-in exception is that facts and ideas are not protected under copyright law. Facts and ideas are the building blocks of progress. The other exception is fair use. Fair use defends copyright infringement. It favors things like criticism, news reporting, bad reviews of books that might quote a copious portion of a chapter, parody, or bad theater.

Fair use is a hazy shade of the law. There are no mathematical rules, but it looks at four factors:

• Factor 1: The Purpose and Character of the Use.
• Factor 2: The Nature of the Copyrighted Work.
• Factor 3: The Amount or Substantiality of the Portion Used.
• Factor 4: The Effect of the Use on the Potential Market for or Value of the Work.

Factor 1: The Purpose and Character of the Use.

Is it commercial or noncommercial? As you can imagine, noncommercial uses are looked on more favorably.

If you’re wondering whether you can use a work without getting permission, consider the purpose for which you’ll use it. If you’re going to comment on the original and bring new insights or meaning to it, that’s a favored use. It’s actually called a transformative use. You’re using it for a different purpose than it was originally used for.

Factor 2: The Nature of the Copyrighted Work.

It looks at the nature of the work. Highly creative works such as poetry, song lyrics, photography, and fine art are protected to a greater degree than prose.

Factor 3: The Amount or Substantiality of the Portion Used.

It looks at how much content you’ve taken and how important that content is to the original.

Factor 4: The Effect of the Use on the Potential Market for or Value of the Work.

It also considers the economic impact. Is it a market substitute? Or is it a market that the author or publisher, although they may not presently be exploiting it, may have a right to protect?

Thomas: It’s important to clarify what economic impact means. You might write a review of a poorly written book and quote a poorly written passage. If your review hurts the sales of that book, that is not the economic impact we’re talking about.

We’re talking about somebody using another person’s words to create a competing product. Since the review is transformatively different than the book itself, it doesn’t have economic impact in this sense, even if your review is scathing.

Lloyd: It’s also about permissions. Let’s say you want to use someone else’s words to start chapter four. You’re not commenting on those words. You’re just setting a tone. For that kind of usage, you should probably be paying a permissions fee.

The point is that copyright was designed to protect against copying, and generative AI doesn’t copy. It emulates. For generative AI to qualify as copyright infringement, there has to be copying. The copied portion has to be the expressive element. 

If you’re just drawing inspiration from 500 years of print history and the last 25 years of the open internet, then what’s being generated in response to prompts is just something inspired by or informed by someone’s work. It lacks substantial similarity.

Thomas: In many ways, AI learns as a human would learn by viewing art at a museum. You’ll see artists in museums viewing masterpieces and emulating that artist as they learn. They’re painting, but they’re not selling that masterwork. They’re just learning from the masters. Then they go on and create their own unique work, but it’s influenced by all the paintings they’ve ever seen.

Every artist is inspired by the art they’ve consumed. Musicians and authors are influenced by certain songs and books.

Some artists have a Spotify playlist they listen to while writing. Those musicians don’t have a right to your book just because you were listening to their music while you were writing the book.

Generative AI and large language models work in that same way. At least, that’s our understanding of how they work right now. For that reason, copyright really isn’t the right tool to rein in AI.

Lloyd: That’s the dilemma. Until a new law is made, it’s not really a copyright issue. It’s a failure of copyright to protect the author’s sweat-of-the-brow labor.

Copyright is having a tough time because AI isn’t reproducing anything. We’re talking about generating content that was learned. If you believe in the freedom to read, it’s odd that you have a problem with AI having the freedom to read, but it’s understandable.

I heard somebody say, “It’s an automation issue, not a copyright issue.”

Generative AI is an incredible tool. It’s transformative. That’s the other thing that makes copyright law an ineffective tool. Generative AI does exactly what you said. It’s a jazz musician in that it’s interpolating all of humanity’s creative works.

Thomas: Many authors believe that if you use AI in writing your book, you cannot own a copyright on that book. But based on a previous case, in which a monkey could not own the copyright to a photo he took simply because he pressed the button, the court determined only people can own copyrights.

Corporations can own copyrights, but monkeys and AI are not people. There was recently a case where someone said, “AI generated this book completely without my input. Can the AI own the copyright for the book?” They looked at the monkey case and said no because AI isn’t a person.

But I don’t think that that court case said the person couldn’t have owned the copyright for his work in pushing the button to make the AI go.

Do I understand that correctly?

Lloyd: You explained that well. The monkey isn’t entitled to the copyright of the photograph because the monkey didn’t need an incentive to create, nor does AI.

Copyright was a monopoly given to authors. In 1710, few authors had printing presses, so it was really to benefit their publisher partner and booksellers so they could proceed knowing that their investments would have an opportunity to pay off due to their exclusivity. But you nailed it.

What is copyright recapture, and how can somebody use it to get the rights back for their book?

Lloyd: Copyright recapture is buried in the Copyright Act, and it’s a paternalistic provision that exists.

There are policy reasons for everything, and the policy reason for copyright recapture is that young authors, musicians, or composers will often sign whatever is put in front of them very early in their careers.

Two out of the four Beatles had to have their parents sign their first recording contract. Copyright recapture was intended for folks like them. It would allow you to send a notice of termination announced to your publisher partner that within the next two years or ten years, however long the math dictates, you’d get your rights back.

It’s an inalienable right that you can’t waive unless you are a work-for-hire. It basically gives you back your rights. It’s typically used to renegotiate the terms of your original agreement.

In the publishing world, if the rights are still valuable, your publisher will want you to stay with them. You can get another advance if you’re represented by a crafty agent or attorney. You could improve your royalty rates. If you’re the manager of a famous dead author’s estate, you might be able to negotiate that they dust off the franchise and rejacket everything.

It’s a powerful right that can be exercised by the author or their heirs. Very specific rules must be followed in order to draft these and serve them.

Thomas: I get the impression you need an attorney for rights recapture. It’s technically complicated and involves a degree of negotiation. You may not necessarily want your rights back. Perhaps you just want a better deal with your publisher. Maybe you want help navigating that.

Lloyd: It also involves math, and that is a challenge.

Thomas: I know an author whose books are no longer in print, but her publisher still has the audiobook and ebook available for sale. She wants to get the rights back for her book. The book is fifteen years old, and the publisher has moved on. But the ebook is still around, and the author knows she can squeeze more juice out of that orange than the publisher can.

What’s the process for getting the rights back on a book like that?

Lloyd: First, look at the contract. Is there a contractual out? Typically, the Out of Print Clause will specify under what conditions you’re allowed to recapture your rights.

The problem is that books no longer technically go out of print because of the perpetual availability of ebooks. The digital rights and the ability to print on demand basically mean a book never goes out of print.

If you don’t have a contractual right after a close reading of the clause, you could simply ask, “Pretty please.” You might be surprised.

If the book doesn’t have economic value to the publisher, and if you can make a case that you’d like the rights back, sometimes publishers will relinquish rights to slow-moving books. It doesn’t happen often, but it’s also not uncommon.

Sometimes, it’s a matter of the agent or attorney having a relationship. I can’t promise anything, so don’t hire me with the expectation that I’m going to be able to perform magic.

The problem is that the long tail has complicated the out-of-print reversion of rights scenario for many authors.

Thomas: Sometimes you can get the rights back for free. Other times, it’s a matter of the publisher stating a number to begin negotiation. If your book is making $10 per month for your publisher, they’d much rather have your $3,000 today than $10 per month into the future.

A bird in the hand is worth two in the bush. You’re offering your publisher a bird in the hand as opposed to the possible long-term sales into the future. It’s often a matter of getting to that negotiating table to see if you can find a number you’re both comfortable with.

Lloyd: Independent publishers will be more amenable to that than the Big Five, but it doesn’t hurt. Negotiation is a good thing.

Thomas: You really need an agent or a lawyer to get you to that negotiating table. Many authors have a hard time getting responses to their emails when they try to do this on their own.

Lloyd: That’s one of the many benefits of having a reputable literary agent or publishing attorney. They’ll take your phone call or respond to your email. But if the book is at the end of its economic life, there’s really no reason for the publisher to hold on to those rights.

If you get somebody on the phone or get an email response, you might get lucky.

Thomas: And the fact that you could do that in the future puts an end time on the $10 per month. Your publisher won’t earn $10 per month until the end of time. They’ll only earn $10 per month until that 35-year termination. Presumably, the kind of author who wants the rights back today is the kind of author who will leverage copyright recapture when they get the chance to do it in the future.

There is a finite end. As the author, you want to make it less hassle for the publisher to just give your rights back than to keep the rights.

Lloyd: Sometimes, the threat of termination is enough to get the publisher to the table and renegotiate a reasonable deal.

What sorts of AI-related cases are you seeing?

Thomas: There’s a lot of uncertainty and doom related to AI. But I’m wondering if any of it is getting turned into court cases that are affecting real authors.

Lloyd: Michael Chabon and other eminent literary figures have recently filed a complaint. They didn’t claim copyright infringement. They implied that AI fed on a library of pirated books, but the complaint lacked a claim that there was any substantial similarity.

The books were ingested by AI without permission, and since AI is slippery and avoids substantial similarity, which qualifies as infringement, I’m not sure they’ll get far.

Cases that are more likely to survive a motion for summary judgment concern artwork and photographs.

Getty filed a case where the output includes images that were altered, but you can still see Getty’s logo. Some generative AI images have captions (although short phrases and sentences are not protected by copyright), so they have a good argument for substantial similarity for copyright infringement and unfair competition since the Getty logo is still present.

I think the caseload will be made primarily when dealing with music soundalikes and visual images. It will be harder to protect text because there are just so many ways you can say something and generative AI is emulating, not copying.

Thomas: There are many ways to avoid having the AI detected. For example, right now, Amazon is telling people to disclose whether they used AI. But how will they know?

What would keep a human from generating something via AI and changing every seventh word using a thesaurus, or perhaps a different AI to disguise the primary AI?

Copyright symbol of the yellow square pixels on a black matrix background. Author rights concept. Does using AI prevent you from copyrighting your work?

Thomas: If someone uses GPT to help brainstorm book ideas, does that mean they can’t get a copyright? If Grammarly suggested a better way to phrase a sentence, would that AI prevent me from copyrighting my work?

Lloyd: No, not at all. AI is a tool. It’s not a database of sacred knowledge that you want to rely on, but it can say things better than I can when I’m pressed to send an email. It can help you find a friendlier, less confrontational way to make a point.

Plots are not protected under copyright law. It’s what you stuff into the plot, such as pacing, characters, events, and tone, that are protected.

I’d like to see a lawsuit against ChatGPT’s overlords about synopses of books. A synopsis of a Seinfeld episode is not necessarily a fair use because you’re taking very creative elements like the plot and summarizing it.

AI may get caught in the world of book publishing by summarizing plots because that can be protected.

How can authors contact you for legal counsel?

Thomas: If an author wanted you to look over their contract or send a stern letter on their behalf to their publisher to get their rights back, how would they go about doing that?

Lloyd: I blog at copylaw.org with some frequency, and my email is jassin@copylaw.com.

Thomas: As you build your author team, I highly recommend hiring a CPA and, if you’re traditionally published, getting an agent. Having a literary attorney does not replace the need for an agent, but you will need an attorney as well.

A stitch in time saves nine, as they say, and having a conversation with an attorney on the clock can save you from having dozens of conversations with many attorneys later. People rarely regret paying for wise counsel to help them avoid these legal landmines.

If you have a legal question to ask Lloyd Jessen, he is joining us on our next patrons-only Q & A episode. Normally, I answer patron questions during that episode, but this time, I’ll be joined by an intellectual property lawyer who likes working with authors who will also be answering your questions.

If you’ve wanted to pick the brain of an IP attorney, this is your chance. Become a patron today to join us. The webinar will be on November 10th, 2023, at 4:00 PM central.

If you miss it, you can still become a patron and listen to the recording.

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Related Episodes

• What Every Author Needs to Know About Copyright Law with James Scott Bell
• Plagiarism, Copyright and Is Piracy Really a Problem for Authors?
• AI Tools for Authors
• AI Book Covers & ChatGPT
• How to Work with an AI Writing Assistant

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