Jeffry, both issues can and would be raised on the grounds that if he is in violation of the contract, then the license would be void, also.
Some clarification of the logic is probably worth noting (MASNICK correct me if I'm wrong about your view on this):
Although Mike's wording may seem to suggest that merely seeking protection is the de facto violation, nothing in the wording of the "shall not be subject to protection" suggests that the protection-seeking, in itself, is a prohibited action (note the passive mood of the clause), rather it's stating that the licensee will, in all likelihood, have no hope of having any such claim enforced for the derivative work.
HOWEVER, the direct implication of such a claim is that the work, which he has already produced and distributed, probably included variations in arrangement, melody, character, etc, that are not permitted under the license per the "shall not change" clause. Otherwise, what else could he be seeking protection for?
This would then mean that all of copies of the work that have already been distributed were distributed under a license that was probably void from the start, making each a likely violation of copyright.
I agree with Mike, this seems kinda crazy. As others have noted, it suggests a nullification of the kind of transformative use reserved for the public domain under fair use.
It does not follow logically that there can/should be all three: licensed use, fair use, and some in-between degree of use of a copyrighted work that does not overlap with the some part of the other if and when the user has a license.
It's almost like saying everyone now suddenly should have to have performance insurance in case they accidentally vary the work in the "x < OH SHIT! < y" zone. That insurance being a direct license. To me this would seem to negate the very purpose of the compulsory license.
For the second time: I didn't say it's "pretty likely." I said it "seems pretty likely". It's got nothing to do with sarcasm. My intent was PLAIN.
It seems like there's a case here, but, as the first post plainly says, that's only "if the original author can show a preponderance of evidence that the publisher milked her query letter."
As for context, the second post was in the context of Brooks' response and thus addressed the point of law in question, the facts of the case were background material. As for making shit up, I don't really give a shit what actually happened. The point I was making was all about the law and only about the law. Fuck what happened.
Do you feel better now that I dropped some peppers in there?
Also, not that the subtle meaning of words matters at all to you, but a 'kickback' is an improper or unethical payment under the table. I simply suggested reaching a mutual agreement for proper compensation. Quick projecting your own slime-ball thoughts on me.
But hey, six of one, half a dozen...either you don't read so good or you're misquoting me on purpose; I can't really help either, so havvuhnizeday!!
Another reason this shouldn't have been pursued under copyright. They should never have created the situation where the books were compared, but a copyright claim basically requires that.
The real wrong that was (supposedly, Chronno, supposedly)done is the publisher accepting one author's pitch card and turning around and using it for another, more salable author for their own benefit and to her detriment.
Settle down, Chronno! I made it quite clear that those comments were suppositional to the claim of the plaintiff, not to mention circumstantial to what is presented in the articles - ergo "SEEMS pretty likely"
Furthermore, I made it clear that it was JUST AS POSSIBLE that it's all a big misunderstanding, ergo:
"Of course, all the publisher has to do is show an independent, coincidental query letter from Jessica Seinfeld (preferably prior or simultaneous to the other gal's), and they're off the hook."
Off the hook because, in that case, they clearly didn't do anything wrong.
So NO, it's not "one hell of an accusation." You're just making one hell of leap in projecting (your own?) conspiracy theorist paranoia onto me.
...until the pitched idea is selected for production.
Agency can be established without a formal agreement, and case law backs it up. Simply listing to receive queries and then receiving them for possible selection and publication is plenty sufficient to establish the existence of an agreement IF the idea is then selected for production and publication.
There is a clear implied expectation on the part of an author that they are sending a query letter for THEIR OWN book deal, and this expectation is utterly reasonable. If the idea is no good, or even just no good for that particular publisher, no biggie, they send idea to another publisher and/or focus on other ideas. There generally IS NOT the expectation that the author is just acting as content fodder for another author, in fact, it is a reasonable expectation that this WOULD NOT happen.
In this case, it seems pretty likely that the publisher wanted to do a celebrity book deal with Seinfeld's super cute wife. They had her come in, rifle through their pitch files, and, presto - instant celebrity book deal.
They could have totally kept it legit and simply had the author ghost-write or even an alternate agreement to sign over her idea for another author to use.
AGAIN: THIS IS NOT A COPYRIGHT ISSUE! She doesn't have exclusive rights or claim to the idea, BUT she does have the right, when her submission was submitted for one purpose, to be let in on the deal when they use HER SUMBISSION for another purpose.
Of course, all the publisher has to do is show an independent, coincidental query letter from Jessica Seinfeld (preferably prior or simultaneous to the other gal's), and they're off the hook.
This is a great example of why I say that proper application of agency law makes copyright law superfluous and excessive.
Not a copyright issue, but almost certainly a breach of agency (if the original author can show a preponderance of evidence that the publisher milked her query letter to use for the more promotable Mrs. Seinfeld). They simply should have let this unknown gal in on the deal.
It's simple enough to send yourself a sealed copy via registered/certified mail (I forget which is the preference.
In that case, then current copyright law actually does more than it should.
You ought, completely apart from copyright, to have been able to sue the agent for breach of agency per their fiduciary duty created when they posted the listing and took in your work for consideration. For this purpose, agency law is sufficient and makes copyright rather superfluous in my opinion.