Copyright Lesson: Terms of Service
Findaway Voices new Terms of Service
Yesterday, on February 15th, authors who use Findaway Voices (FV) received notice of a new Terms of Service (TOS), and there has been a uproar. FV has been a popular service for the indie publisher community because they help match up a book with a narrator, then they distribute the audiobook to the industry. With a wide distribution network and reasonable terms, it’s been a popular and effective service. Then, Findaway was acquired by Spotify who is looking to expand their audiobook audience. As a Spotify company, it was inevitable that they would eventually look at and possibly change their Terms of Service.
When you use any service online, you should READ their TOS because it’s a legally binding contract. You don’t have to use their service, but if you do, these are the terms under which you use it. It’s important to note that there is no negotiation for a TOS; it’s simply the terms under which the company offers its services. When a TOS changes, they are legally required to notify you of the changes. When that happened yesterday, the indie community was angry with the new TOS. Why?
Let’s Talk US Copyright
After the uproar, by February 16, FV/Spotify seems to be backing off some and says that it values the “feedback” it received on the new TOS.
UPDATE: The Terms of Service have changed as of 2/16/24, and they are much better, from the author/publisher’s point of view. Read the current TOS here. Still, this post stands as a lesson in copyright.
But let’s use this moment for a lesson in copyright.
First, I’m not a lawyer, and you should consult your literary attorney on any legal matters. I am not giving legal advice. But I’ve studied copyright and continue to study copyright. As Kristine Kathryn Rusch has always said, you must learn copyright. It IS our business. Below is the classic book on copyright, patents, and trademark laws. It’s worth buying and studying. And that is business advice.
Second, I’m talking US copyright, since that’s what I know. It pertains to US citizens and worked created and protected in the US.
When you produce a work of art, it is automatically copyrighted by the US government. That means the government protects your work in certain ways so that you and only you can profit from your work. A creative work—literary, music, design, etc—is called intellectual property (IP). When you write a book, that IP is what you own and what is licensed to bring in income. If you register your copyright, you have extra legal protections, but even if you don’t register, your work is still protected. More business advice: register your copyrights.
For legacy publishing deals, authors often say, “I’ve sold a book.”
Wrong. You’ve licensed your copyright, your IP. The terms of the license can be advantageous or not, and you can always decide to sign or not sign a contract. You are in control of your IP. No one can do anything with your work unless you give permission through a contract. If they do, of course, you can take legal action and sue—that’s what copyright means.
Always remember that copyright protects your IP and no one can do anything with your work without your permission.
If you use an online service such as FV, the act of using that service means you accept their TOS, which means you give them permissions based on that TOS.
Findaway Voices TOS as of 2/15/24
This is a section of the FV TOS as written on 2/15/24. After the community objected, it may be changed. Be sure to read the TOS of this and any company you decide to work with. This is the section on Licenses that you grant to us.
Licenses that you grant to us
User Content
You retain ownership of your User Content when you post it to the Service. However, in order for us to provide the Service to you we do need a limited license from you to that User Content. Accordingly, you hereby grant Spotify a non-exclusive, transferable, sublicensable, royalty-free, fully paid, irrevocable, worldwide license to reproduce, make available, perform and display, translate, modify, create derivative works from (such as transcripts of User Content), distribute, and otherwise use any such User Content through any medium, whether alone or in combination with other Content or materials, in any manner and by any means, method or technology, whether now known or hereafter created, in connection with the Service, the promotion, advertising or marketing of the Service, and the operation of Spotify's (and its successors' and affiliates') business, including for systems and products management, improvement and development, testing, training, modeling and implementation in connection with the Spotify Service. Where applicable and to the extent permitted under applicable law, you also agree to waive, and not to enforce, any "moral rights" or equivalent rights, such as your right to object to derogatory treatment of such User Content. Nothing in these Terms prohibits any use of User Content by Spotify that may be taken without a license.
You also agree that, if you create your User Content with one or more collaborators, you will ensure that each such collaborator has granted to you all of the rights that you need in order for you to grant the licenses that you grant to us herein in such User Content.
https://my.findawayvoices.com/terms-of-use
Non-exclusive. That means you are giving FV/Spotify these rights, but not exclusively to them. You can also license the same rights in other places.
Transferable. This term means that they can transfer these rights as needed. If the company is sold, the rights transfer. If they put your books onto different distribution systems (Audible, Hoopla,EverAnd, etc) the rights transfer. This is common language that allows them to operate.
Sublicensable. FV can sublicense your work to other companies. You are allowing them to negotiate on your behalf with other companies. Again, this might be reasonable because they must license your work to their distributors. But this one starts to be a concern because you don’t know when or where those sublicenses occur; nor are they giving you payment terms for them.
Royalty-free. No payments. What? They aren’t going to pay anything for using your IP? Well, they are, but you have to go down to the Fees and Payment section for clarification. So why did they include this here? I would ask my lawyer about this one.
Fully paid. What? They just said royalty-free, and now it’s fully paid? Where is the payment? Again, you must go down to the Fees and Payment section. But again, I’m confused and concerned on why it’s listed here. I would ask my lawyer about this one.
Irrevocable. You can’t change your mind! Whatever services FV provides while you use their service will stand, and you agree that you won’t change your mind later.
Worldwide License. It’s important for any license to define the territory, that is the country or countries under which the license is in effect. This says it’s worldwide. In publishing contracts, such a license is often divided by both territory and language. Here, it’s just worldwide, period. Is that what you want?
To reproduce, make available, perform and display. In order to distribute your audio files, they will need to reproduce and make them available, that’s reasonable. The perform and display clause is also reasonable because they will provide sample files on the platform to allow customers to decide if they wish to purchase. I would prefer that there’s extra language that limits the “perform and display” to only for the purpose of distribution.
Translate. This clause means they can translate your audio as they wish. Spanish. French. Congolese. Russian. Swahili. Usually a grant of rights is given language by language, and often includes a definition of territories, too. This general, unqualified term is a step too far!
Modify. This means FV can change your audio files as they like. There is some reason to allow this because the delivery systems have different software and hardware. To distribute on some platforms, perhaps they must change the audio files to meet a different standard. But this is a flat, across the board, ability to change your files, without limit. Usually terms like this will add something to contain it to something like the changes I just suggested.
Create derivative works from (such as transcripts of User Content). As stated, they can create transcripts of the work. This might make sense for a podcast when the audio is the original form of creation. But for audiobooks, the original form is written, and this gives them permission to your book’s text. Essentially, it’s a license of your book, period, not just the audiobook. And, derivative works isn’t defined in any other way, so they can do whatever they want. A derivative work could use your characters, setting, premise in any way they like. In other words, you offer them your IP on a platter.
Distribute. Yes, that’s the service we want! We want our books available widely—as long as the terms are reasonable!
And otherwise use any such User Content through any medium, whether alone or in combination with other Content or materials, in any manner and by any means, method or technology, whether now known or hereafter created. For good measure, this clause allows them to use your IP—your most valuable asset—as they like. The term “whether know known or hereafter created” started being added to contract when ebooks were invented/created. Otherwise, for each new platform or technology, they would have to come back to the creator for a fresh contract. This clause lets them use the newly created rights, at the same terms, without further negotiation. Never a good clause to see in a contract. Some creators will ask for revisions to this that allow negotiations and first right of refusal. But it’s better to strike this. Unfortunately, this is a TOS without any right of negotiation.
In connection with the Service, the promotion, advertising or marketing of the Service, and the operation of Spotify's (and its successors' and affiliates') business, including for systems and products management, improvement and development, testing, training, modeling and implementation in connection with the Spotify Service. Part of this is reasonable because FV/Spotify must have rights to distribute in connect with its services. Note that the contract can be passed on to successors and affiliates, so it’s not just with FV/Spotify, but with whomever they designate.
The next concern is the “improvement and development, testing, training, modeling". This type clause has seen widespread uproar recently because it allows FV/Spotify to use your audiobook files for training for AI or large language model (LLM) programs. Court cases are moving through the system about the alleged illegal use of creative material to train AI. If you agree to these TOS, though, you’ve given them permission to use your creative work to train AI and its LLMs.
Where applicable and to the extent permitted under applicable law, you also agree to waive, and not to enforce, any "moral rights" or equivalent rights, such as your right to object to derogatory treatment of such User Content. Under US copyright law, the term “moral rights” is a technical term which means the integrity of a work and the right of attribution. The integrity of your audiobook means that it is a whole work, undivided. Right of attribution means that you are identified as the creator. Essentially, this means you waive the rights for your book to be kept together as a whole. For example, single chapters could be excerpted and sold or distributed. And, your name doesn’t have to appear anywhere on that excerpt.
I’m not sure what this clause means: “such as your right to object to derogatory treatment of such user content” It seems to say that you can’t sue them for anything under this TOS.
Nothing in these Terms prohibits any use of User Content by Spotify that may be taken without a license. Essentially, they can do what they like.
You also agree that, if you create your User Content with one or more collaborators, you will ensure that each such collaborator has granted to you all of the rights that you need in order for you to grant the licenses that you grant to us herein in such User Content. If you used a narrator, you are saying that they will also agree to these terms. Unless you had a word-for-hire contract, you can’t agree to this. It’s for the narrator to decide. Look at your contract with the narrator to see if you can sign this. (You did have a contract with the narrator, right?)
Study Copyright Law
Copyright IS our business. We only have a business because our governments protect our right to create and earn money from our creations.
One important thing to emphasize is copyright’s term, which is your lifetime plus seventy years. That means your children and grandchildren can also benefit from your copyright before it becomes public domain. When it becomes pubic domain and is no longer protected, anyone can use it as they like.
Reportedly musician Bob Dylan sold his entire publishing catalog for $400 million. Because he protected his copyright on his music, he was able to “sell” his catalog. What he sold is his copyright. That means it won’t pass along to his descendants, and that the company who bought the copyright can use it as they like for 70 years after his death.
When you think about copyright’s term, think about the technological changes in the last 70 years. What else will be invented in the next 70 years? When you license a work for the “lifetime of the copyright” all of THAT is included.
Again, I’m not a lawyer. I’m just a creator trying to earn a living from my creative work. To do that, I need to know something about copyright law, and always be studying it to learn more. And so do you. That’s good business advice.
I have been told that the proper way to register my books is through the website of Library and Archives Canada, since they are our Library of Congress equivalent. I have done that for my self-published books; my traditionally published books were copyrighted in my name by their publishers.
It's also exhausting and sad to have something like this to learn when there is enough to learn of the basics as we get started. Thank you, Darcy, for always keeping us alerted.