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Copyright and fair use in chess literature

I have been in this business for now 20 years and in this period, I have seen some things I have found crossed the line in what is known as fair use of other people’s work.

First, let’s define fair use. You can quote small passages mainly with the aim of 1. Commentary/criticism or 2. Parody. If you reproduce other people’s text, it will require acknowledgement of the origin.

As an author, I have tried to be plagiarised and receive compensation. As a publisher, we have caught three authors in presenting another’s work as their own. Two of these books were fixed; in one of these cases it was a few passages from Wikipedia and a few left-over variations from other people’s analysis. In all cases I have seen of plagiarism, it is the weakest part of the book.

I am bringing this up because there has been online debate about a recent book published by New in Chess, The Shereshevsky Method. The book is translated from Russian by Steve Giddins. It contains long passages from John Nunn’s seminal work, Secrets of Practical Chess as well as Positional Decision Making in Chess by Boris Gelfand and myself. It contains a lot of nice words about the books, but also exceeds the “fair use” definition.

It is a bit bizarre is that the passages in the book are taken from our English language book, but the credit to the book is given to the Russian publisher, who translated the book into Russian. This could make some sense for the original Russian edition of this book, and I wish our Russian partners all the headwind they can get, but it makes no sense in the English edition. Especially not when the translator is aware of the original book, as can be seen by him taking passages out of it.

We contacted New in Chess with our concerns. They were terribly apologetic and as far as I am concerned, this is the end of it. They might have been a bit asleep by the wheel, but it is an honest mistake. If they learn from them. On Forward Chess and in future print runs, there will be a few corrections, but we have granted permission after the fact. The New in Chess guys are both our competitors and our friends, but most importantly, we all work to serve you guys.

I should say that we are not beyond making mistakes ourselves. In one book, we inadvertently included a few comments from a game that we thought we original comments of our own, but were a part of an ebook. A reader made us aware of this and we grovelled to the author, sent him some free books and allowed him to laugh at us 😊.

We also once asked a tournament for permission to use a few photos, which was granted. We later came to understand that they did not have the rights and could not give us permission. We contacted the photographer and paid him. He used the chance to take his anger out of general abuse of his copyright out on us, the ones who looked him out to pay him, years after the fact. It felt a bit unfair, but it was not.

Because the main point on copyright is this – Ignorance is not an excuse. It is the one thing we learned when we attended a lecture on copyright a decade ago. As far as the law is concerned, you have an obligation to know.

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  1. KevHun
    May 9th, 2018 at 09:42 | #1

    I saw this purported new book in a retailers. When I got to the section on DAUT I stopped reading any further. The book itself bears scant resemblance to the original two books, Endgame Strategy and The Soviet Chess Conveyor, which it is supposedly based on. They were classics. I have both books myself and to say that this new book is disappointing is an understatement. It is a very poor weld job in my opinion.

  2. May 9th, 2018 at 19:22 | #2

    There is an American publisher who does this 100% with his books. His claim is that he can’t find the copyright holders.

    Sigh.

  3. Jacob Aagaard
    May 10th, 2018 at 07:13 | #3

    @Alex Relyea
    This is like going to a parking lot and saying you cannot find the driver of the car you like :-).

    I think I know which books you are talking about. They were quickly taken off the shelves at chess specialists in Europe, when we as well as a few others complained. In that case the copyright holder was Everyman among others…

  4. Pinpon
    May 10th, 2018 at 08:24 | #4

    And what about DVD plagiarisms ?
    QC publish a book and s.o. makes a DVD on the same topic quoting your book …

  5. Frank
    May 10th, 2018 at 08:39 | #5

    I am not an IP-lawyer, but quoting, like in academic work, is always allowed, be it within certain reasonable limits and as long as you give the proper references. @Pinpon

  6. John Johnson
    May 10th, 2018 at 10:51 | #6

    But in academia it is also considered good form to ask for and get permission to cite someone’s work. It is pretty much pro forma granted, but it’s nice to be nice.

  7. SimonB
    May 10th, 2018 at 13:59 | #7

    @John Johnson
    Respectfully, that is entirely incorrect.
    Asking permission for every citation would be utterly unworkable, if you stop to think what that could mean in practice. One would never publish any papers, waiting for replies. I asked once only – to another prof to use a questionnaire instrument she had designed. Out of courtesy, not necessity. A prompt ‘yes’ came.
    But yes, in academia one should cite very carefully. It is necessary.

  8. RYV
    May 10th, 2018 at 22:00 | #8

    @ jacob
    so far there is no copyright on chess moves, on chess games or chess analysis.
    Do you think it will change ? how will it change ? what consequences for chess books ?

  9. Frank
    May 11th, 2018 at 05:14 | #9

    Chess analysis is different from moves in the game, the is an essential difference being that it is actual intellectual work and not a performance. Just like singing or quoting a song by The Beatles is not plagiarism, but presenting it as your own work is.

  10. Jacob Aagaard
    May 11th, 2018 at 07:16 | #10

    SimonB is right. This is where the principles of fair use comes in. For longer passages, permission is needed.

  11. Jacob Aagaard
    May 11th, 2018 at 07:22 | #11

    @RYV
    I cannot see that you can have copyright on the games. It is like having copyright on football scores and who scored. It is all information. They have tried to sue based on the games not being sent live, but I think the case is thin. But certainly interesting.

    Regarding analysis. Here we are not reporting things anymore, but copying someone else’s choices. If it is the main line of the computer, copyright makes no sense. If it is long analysis, copyright can exist. But fair use means that it will rarely be relevant.

    I do have one case on that actually. I once wrote a bulletin for a tournament and had asked to write an article in a magazine about it as well. The editor declined, said he already had someone lined up. That guy copied my analysis and added exactly ONE idea per game. I was suspicious until I checked a line where connected pawns marched down the board. It was entirely a fantasy line, based on poor play from one side. In the magazine the pawns were marching d-pawn, e-pawn, d-pawn, e-pawn, while in the bulletin, my stuff, it was e-pawn, d-pawn and so on. This confirmed to me that not only was he looking at my stuff while annotating, which I think would be idiotic not to, but he was consciously copying and trying to avoid looking like it was copied. Needless to say I complained to the editor and there was some personal relationships broken.

  12. John Johnson
    May 11th, 2018 at 10:56 | #12

    I said it was considered good form, not that everyone complied.

  13. Bulkington
    May 11th, 2018 at 12:42 | #13

    There is a nice story on copy right and chess games. In 1993 the german GM Huebner claimed copyright on his just finished game and refused to provide his game notation to the referee. The case went to a german sports court and they decided there is no copyright for chess games, the decision based on an expertise created by GM Unzicker (which was a judge). The argument against the copyright is quite interesting:
    1. If white gets a copyright then black must also get the copyright.
    2. Existing (german) law defines: Two parties are allowed to claim copyright on the same thing ony when they create this thing with a “common target course” (“gemeinsame zielrichtung”), i.e. in cooperation.
    3. In chess, however, black and white do not have such a common target course, instead they fight each other.
    4. Therefore, no copyright for either party.

  14. James2
    May 11th, 2018 at 13:14 | #14

    @Bulkington
    Thank you for that information Bulkington. I found that very interesting.

    Does anybody with any specialised knowledge know if this holds in other countries?

  15. Pinpon
    May 11th, 2018 at 16:07 | #15

    @Bulkington
    So if the players agree with a draw beforehand , German courts could accept copyright 🤓 ?

  16. An Ordinary Chessplayer
    May 11th, 2018 at 17:21 | #16

    @Pinpon – Good point! Huebner should copyright this game, nobody would dispute his right.
    http://www.chessgames.com/perl/chessgame?gid=1543378

  17. May 11th, 2018 at 19:27 | #17

    Frank :
    Chess analysis is different from moves in the game, the is an essential difference being that it is actual intellectual work and not a performance. Just like singing or quoting a song by The Beatles is not plagiarism, but presenting it as your own work is.

    I strongly disagree. This is what I described above. My not-so-hypothetical publisher publishes “songs” “sung” by “The Beatles” but makes no attempt to pay royalties or get permission. It is bad form at best and illegal at worst to sing “Let It Be” commercially without paying royalties and getting permission.

  18. James2
    May 11th, 2018 at 19:39 | #18

    @Alex Relyea
    Does that mean street buskers and singers who sing with open violin cases for coins and change should be paying royalties and getting permission to sing the songs they sing? (I could easily imagine that it should if they are making a commercial gain from doing it).

  19. dfan
    May 11th, 2018 at 19:48 | #19

    We’re getting kind of far afield, but one absolutely does legally owe royalties for performing other people’s songs in public (performing rights royalties) or recording new versions of them (mechanical royalties). Performing rights royalties require permission (but generally a bar or whatever will get a broad license from an organization like ASCAP or BMI); mechanical royalties do not.

  20. James2
    May 11th, 2018 at 20:53 | #20

    Don’t forget places like hairdressers and offices with over a certain number of employees who play a radio or play music through a tv, etc require a PRS and PPL (which you can now get as a single licence I understand) in order to legally play music. I know it is way off topic but there it is.

  21. weng nian
    May 11th, 2018 at 21:17 | #21

    The same old myths get trotted out each time there is a copyright dispute amongst chess players. sigh! At the fundamental level, it is “right” to “copy” albeit with modifications over the years. If you are copying someone’s ideas in a “material” form (read carefully, “material” form!!!), then it is a possible breach of copy-right.
    @Jacob, if you use engine to analyse and publish analysis, that is subject to nominally copyright. Someone else who publish the same or very similar analyses might not be in breach of copyright ‘cos they may be able to prove they arrived at the analyses independently using their engine.
    However, as dfan pointed out, the rights attached to “copy” is a bundle consisting of various rights. So, someone who uses engine to analyse extensively and publish the analyses but in a form and format which is unique will have copy right protection provided the extra uniqueness is considered independent work. Hence the legal disputes over publication of TV schedules and Sports fixtures.

  22. Frank
    May 11th, 2018 at 21:56 | #22

    Of course you are right, I meant more „in private“. In fact if I remember correctly, you hold copyrights over all things you produce yourself. You can copy stuff for private use only. I did not know about the Huebner case, very interesting indeed.@dfan

  23. middlewave
    May 12th, 2018 at 10:34 | #23

    @Bulkington
    This example is why FIDE has since introduced a paragraph in the Laws of Chess clarifying that the scoresheets are the property of the organizer.
    I have had personal experience of such “protests” as well, most notably last year, when Evgeny Sveshnikov, a well known supporter of move copyright, first unplugged his electronic board (to stop the live transmission)(!!) and then refused to continue the game when I plugged it back in, protesting about copyright as usual…
    With all respect for the Grandmaster, a true legend of the game and an otherwise impeccably behaved man, such “crybaby” attitude (also referring to the Huebner incident) seems extremely childish to me, particularly in 2017 or even 1993.
    Not sure how the German colleague solved his problem back in 1993, but I instinctively refused to bother more than a minute or so with such silly behavior, restarted the clock, announced my “either you sit down and keep playing or you lose on time” decision and just left to attend more pressing matters. I think this is also the most effective way to stop a little kid when crying for something trivial. And I find it very funny how often things do tend to get blown out of proportion, in many aspects of life, because someone afforded them MORE attention than they deserved…

  24. John Johnson
    May 12th, 2018 at 10:35 | #24

    This begins to sound like Neil Young versus President Trump, and we have strayed far. Ethically, the third part of the book is suspect.

  25. Jacob Aagaard
    May 12th, 2018 at 17:56 | #25

    @weng nian
    You have to prove some sort of innovation or independent idea to claim copyright as far as I am concerned. If our analysis have the same core, but different branches, different cut off points and so on, you will not be able to prove that I got them from you. As there is no copyrighted innovation involved, I cannot see that is copyright.

    But if you copy my analysis in their entirety, you are definitely in trouble.

    I also think you would have a case if an author of a hypothetical chess book, copied say 5-10 games from another book, heavily reduced the annotations, but otherwise kept 1/4 of the stuff and put his own words in, without coming with anything new of his own. Such an author could potentially find it fully acceptable, when translating a book from a hypothetical East European language, to copy long passages from other publishing houses books without even telling his own publisher.

  26. Jacob Aagaard
    May 12th, 2018 at 17:57 | #26

    Or another case. One author could copy 300 exercises from a column on tactics, leave out a lot of the analysis, but be too lazy to even change the order of the exercises. The publisher of such a book could hypothetically pay the author, who could hypothetically be writing these words, a large chunk of money.

    But I am just speculating of course…

  27. Jacob Aagaard
    May 12th, 2018 at 17:59 | #27

    I do not see how games can be copyrighted. It would be close to copyrighting free speech. Would the results also be copyrighted? Should I pay whenever I show a game at a lecture? Or mentions a Grandmaster’s name?

  28. John Johnson
    May 13th, 2018 at 00:01 | #28

    Which player would get the copyright, wouldn’t it have to be a joint copyright. And what about those gm draws that some fellows used to play?

  29. weng nian
    May 13th, 2018 at 06:31 | #29

    @ Jacob, I am not questioning analysis nor innovation in analysis which is a very difficult copyright issue. My point is in relation to “arrangement” which can be copyright protected in certain circumstances.
    Short msg boards like this is very difficult;t to discuss legal scenarios but if I am reading your scenarios correctly (in order as you give them):
    1) copy analysis in entirety – it depends, ie if I let an engine run, does it replicate the same analysis? However, if your analysis has a certain arrangement, order, that might be protected and if copy them in its entirety, then yes, there is a breach of copyright.

  30. weng nian
    May 13th, 2018 at 06:36 | #30

    @Jacob, 2a) copying 5-10 games with 1/4 analyses and add own words – there are two issues (separate but connected) – a) is 1/4 analyses fair use? if not, may be breach …… b) copying the 5-10 games with 1/4 analyses, is it in same order – then the issue is similar to 1) above, an “arrangement” issue and subject to copyright protection.
    2b) translating with East Euro publisher – 2 issues – a) legal issue same as analysis above in 2a); b) there is an ethical issue here.

  31. weng nian
    May 13th, 2018 at 06:42 | #31

    @Jacob 3) copying 300 problems – important to tease out the issues and consider – a) using the same 300 problems is not potentially a breach of copyright esp if there eos proof of independent selection; b) I think there is similar issue to 1) – the selection and arrangement and exact framing of the 300 problems – these may be protected by copyright and hence there may be a breach.

    At the end of day, legal rights must be enforced to be worth the paper they are printed on. Unfortunately it is fact of life in every single “rule of law” jurisdiction that litigation to enforce a legal right is expensive, in monetary as well as non-monetary terms.
    From personal experience, my company has a clear case of breach of contract for possible damages of AUD125,000 but we are considering seriously whether to not pursue litigation ‘cos of costs!!

  32. weng nian
    May 13th, 2018 at 06:48 | #32

    @It is quite clear in most jurisdictions that bare moves of a game cannot be protected by copyright.
    @Jacob, “Should I pay whenever I show a game at a lecture? Or mentions a Grandmaster’s name?”
    as a business, I suggest you analyse the issues carefully:
    1) if bare games are not protected, then there is no breach to mention or use them in lecture. If you are using someone’s analysis, then 2 issues: 1) ethical issue of plagiarism if you use without citing; 2) legal issue of fair use, fair use in education, fair use in comment/opinion etc.
    2) GM’s name – no breach of copyright as personal names are usually not protected. But bear in mind there is trademark. Usually personal name are not TM but some brand names might be.

  33. weng nian
    May 13th, 2018 at 06:53 | #33

    @JJ re “Which player would get the copyright, wouldn’t it have to be a joint copyright. And what about those gm draws that some fellows used to play?”
    Again, this is a misconception of copyright protection. Ideas and action are not copyright protected. But reducing ideas and action into “material” form or medium, ie writing, drawing is copyright protected.
    Two players playing a game do not have copyright to game. Each player notating the game has a copyright to their own “copy” (material form) of the game. However, this is not a copyright to the game against the world! It is the right to “the” copy of the game. If you are a spectator and you wrote down the entire game, then you own copyright to your own written copy.
    Here, where confusion arises and lots of urban myths multiply: It is very difficult to prove that someone publishing the bare moves of the game has copied “your” “copy” of the game. It is an issue of proof rather than legal rights!

  34. weng nian
    May 13th, 2018 at 06:58 | #34

    Final word: there is a lot of confusion mixing everything together:
    1) there are copyright protection – legal;
    2) there are breaches of copyright – legal requiring litigation to enforce
    3) there are ethical and moral issue with copying;
    4) there are ethical and moral issues with copying (legal) and not paying;
    5) there are costs issues with enforcing copying – legal;
    6) there are issues with “insisting” on ethical and moral conduct vis a vis copying.
    there are quite a number of posts which throws all these separate issue together.

  35. SimonB
    May 13th, 2018 at 14:03 | #35

    “I didn’t have time to write a short letter, so I wrote a long one instead.”
    -Mark Twain

  36. The Doctor
    May 13th, 2018 at 17:31 | #36

    This is a chess blog right?

  37. RYV
    May 13th, 2018 at 21:35 | #37

    take for example the last 4 books on open games from QC, NIC, CS & gambit. It is 80 % the same stuff. Is there problems with copyright ?

  38. SimonB
    May 13th, 2018 at 23:06 | #38

    @RYV
    I was disturbed that all my books on something called the Nimzo Indian had the first few moves the same. Odd. The real give away was the 3…Bb4 lurch (only a good ploy for someone with long arms, I suspect – dwarfs, midgets, leprechauns best avoid). Surely this is a copyright issue?
    It’s like all Russian novels starting:
    “All happy families are alike; each unhappy family is unhappy in its own way.”
    Or something.

    Chess anyone…?

  39. Jacob Aagaard
    May 14th, 2018 at 12:32 | #39

    @SimonB
    Sorry, have you paid Kremlin for the use of the word “Russian”.

  40. Jacob Aagaard
    May 14th, 2018 at 12:33 | #40

    @The Doctor
    I think if you read down a copyright post, you do it voluntarily 😉

  41. Jacob Aagaard
    May 14th, 2018 at 12:33 | #41

    @weng nian
    I really don’t think anyone was confused.

  42. JB
    May 14th, 2018 at 15:15 | #42

    Let’s go on to a more interesting discussion. Who for FIDE president- we’ve not had a poll for a while and I can’t wait to vote for Kirsan, the mysterious Thai Princess and Glen Stark as secretary general. I think Stark is the guy in the Iron Man suit.

  43. KevHun
    May 14th, 2018 at 16:16 | #43

    Well we do have Nigel Short entering the contest for President…

  44. JB
    May 14th, 2018 at 16:50 | #44

    Jacob announcing his run for the Big Cheese today anytime..

  45. RYV
    May 14th, 2018 at 21:26 | #45

    Now that Caruana is challenger for world title, US federation will put big pressure to big change at FIDE… end of Kirsan & Agon.

  46. Jacob Aagaard
    May 15th, 2018 at 06:10 | #46

    @RYV
    More than funding the candidate and promising 20 million if he wins?

  47. Patrick
    May 17th, 2018 at 15:32 | #47

    This issue is always going to be a problem, especially with chess. This is not the same as creative writing.

    If I write a book about a boy with 7 fingers on each hand with the “pinky” on each hand having magical powers that allow him to drink liquid through his fingers instead of his mouth, that is my idea, and copying of it would be copyright infringement. Of course, my idea sounds pretty stupid, and that’s why I don’t have a career in creating writing.

    On the other hand, where do you draw the line in chess? Let’s take Anderssen – Kieseritzky, The Immortal Game. I am 100% sure that this game has been published in more than 1 book. So copying the game clearly isn’t copyright. Does indicating the move that was the ultimate blunder in multiple books constitute copying?

    How many French books mention the blunder of grabbing the pawn before playing Bd7 and dropping the Queen in the Milner-Barry Gambit? I don’t see every book siting the first book ever published on this concept.

    We have a blog on our Website and I often publish games that I’m sure were published before, but with my own analysis of it with rare exception, in which case I quote the author or player.

    Who knows where the line is drawn? Sure, some cases are obvious, but many are not!

  48. Jacob Aagaard
    May 17th, 2018 at 17:08 | #48

    @Patrick
    I think you will find that your idea cannot be copyrighted. I am currently reading The Tommyknockers by Stephen King. As with many of his novels, this one is stealing ideas from other writers. Many stories do this. The problem arises when there are too many of them used at the same time. For example, Fast and Furious 1 probably had to pay something to the writer of Point Break, while the author of Eragon probably did not pay off George Lucas, but should have. It is the same story. Or maybe George Lucas had to pay off someone else.

    In the same way in chess, we get a lot of the same results, but how we present the results and how we use them is where individuality comes in. Therefore, as I see it, copying 300 exercises from a column is a slam dunk. Copying six pages from a book is a slam dunk – especially when all you do with it is say: “I agree.”

    The grey zones… I will leave them to the lawyers. From our perspective, the apology from New in Chess on this matter was sincere and I am sure they will improve their practice, as we have improved our practices in the past when we have made mistakes.

  49. Martin Dixon
    June 17th, 2018 at 21:55 | #49

    As a commercial photographer I am well aware of copyright regulations and am certain I have been the victim of someone using my images as their own to gain work. The belief is that tracking down the culprit is too troublesome to be worth the effort. Ideas cannot be copyrighted, they are ephemeral and open to many influences. There are perhaps seven main themes in all of literature and film yet they have been retold a million and one ways. The product can be copyright protected, but not the inspiration. As authors you have every right to demand proper credits for your labors. The photographer who took you to the cleaners saw an opportunity for his files that probably existed nowhere else. Proving irreparable harm is an entirely different matter. Protect yourself, it’s a jungle out here.

  50. Csaba
    June 18th, 2018 at 04:11 | #50

    @John Johnson
    I’ve never heard of this rule. I’ve written/co-authored about 10 papers and a few of them were cited 20+ times, but nobody ever asked me or my co-authors for permission, neither have I ever asked. I don’t even understand what the point would be? Citing papers that support my conclusions is a win/win for both sides. The bad practice part comes in when one cites one’s own paper (or one’s friend’s) or uses something without citing. I suppose it’s also a nice gesture to write someone about whose work you’ll cite in a negative way (Ref 1 said this but we find, with our newer/better methods, something else), but I don’t think it is bad practice not to.

  51. SimonB
    June 18th, 2018 at 10:48 | #51

    @Csaba
    Csaba, you are of course right and John Johnson is plainly utterly wrong. I have written a fair few papers, with a number of citations. I do lots of reviewing and academic editing too. Chess – well, I play a little.
    What JJ suggested simply does not happen in academia. It Does Not Happen. It Can Not Happen – it is not even workable. And yes, there would be no point.
    Better to leave it to the academics to describe normal academic practice.

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