The Nitty-Gritty of Copyright

by

Abra Staffin-Wiebe This article is based on a discussion with Roger L. Belfay (http://www.rogerbelfay.com/), an intellectual property lawyer, and on information available at the Copyright Office's website (http://www.copyright.gov). This article shouldn't take the place of legal advice. Hopefully, it will help you know if and when to seek legal advice from a good lawyer specializing in intellectual property and copyright law.

What is copyright?

Copyright is a legal way to claim a work as your own so that you can sue for damages if others try to make copies or use it without your permission. Copyright protects both published and unpublished works, and these works are protected from the minute that they are "permanently fixed in a tangible medium." That tangible medium can include a handwritten notebook, a typed-up document, a photograph, or even a document that has simply been saved on your computer's hard drive.

You do not need to register your copyright to have copyright protection, but you do have to register your copyright in order to sue for damages. Also, you can only sue for damages from infringement that occurred after you registered your copyright. You can register copyright at any time and pursue damages from that point forward, although there is a limit on how long you can wait to collect damages after you are aware your property is being infringed upon.

Plagiarism and copyright infringement are not the same. Copyright infringement is making copies or derivative works of something you created. Plagiarism is somebody claiming your work as their own. As soon as somebody gives credit to you, whether they use your work in part or in whole (see Fair Use), it becomes copyright infringement and not plagiarism.

Merger Doctrine: When a concept can be expressed in only a limited number of ways, there can be no copyright protection for any version of it. For example, recipes. Recipes cannot be copyrighted, although collections of them can.

When should you register copyright?

One of the most common questions beginning writers have is, "How can I protect my idea and make sure that agents and publishers won't steal it if I send it to them?" Answer: You can't. An idea is not copyrightable. It's the specific execution of that idea that matters.

Here's the thing. Odds are that your writing is not brilliant and valuable enough to make it worth stealing by professionals, especially if you're just starting out. These people are by and large honest people with lots of their own ideas that they want to spend time with. If you're worried about scam artists, that's a different issue, and I recommend always checking Preditors and Editors and Writer Beware to make sure you're dealing with legit people.

It's probably not worth that $35 filing fee to register copyright on your unpublished work. Once it's been published, it may be worth it. It's usually done automatically at publishing time for novels, but short stories are a whole different kettle of fish. Because copyright publication is retroactive to the date of publication for up to 90 days, one approach is to collect all your work together for each 90-day period and register it as a catalog or compendium, which will protect every item individually for a single registration fee.

As an author, when you sign a book publication deal, make sure that the contract specifies that the publisher must preserve and enforce copyright against infringers. Otherwise, that will be your responsibility and nobody else's.

Note also that even if your work is copyrighted, putting "Copyrighted 2010 by Brilliant Author" on your manuscript will make you look like an amateur. It may be seen as implying that you think the person you're sending your story to is a cheat and a thief. Also, according to the copyright office, "While use of a copyright notice was once required as a condition of copyright protection, it is now optional." If you do have to sue for damages, though, it makes it easier to prove willful violation of copyright.

Common-law copyright or "Poor Man's Copyright": You may read advice saying that you can put your material in a sealed envelope and mail it to yourself as proof of copyright and pre-existing work. This is not true. Lawyers are highly entertained when somebody tries to use this as evidence, but the only purpose it serves is brightening their day. You see, if they'll believe you're smart enough to mail yourself the document, they'll also believe you're smart enough to mail yourself an empty envelope and put the document in later.

When your copyright has been violated

You are the one responsible for enforcing your copyright. As far as enforcing copyright, consider the practicalities of it, not just the legalities. Some minor infringements are really not worth the hassle. If you don't want to go to court, a non-legal strategy you might try is sending the infringer a bill for their use of your property. The downside is, if you change your mind and want to go to court later, they may have stopped using your property, thus reducing the damages you can collect.

The owner of the copyright should sue in Federal Court and prove the copying in order to claim higher damages. You cannot sue for infringement and collect damages caused before you registered your copyright. However, the registration date is retroactive to the publication date as long as it's registered within 90 days.

Allowed damages in Federal Court are $500/copy or greater provable damages.

You must prove that your work was copied, and for greater damages, you must prove the copyright was willfully violated. Putting the copyright notice on your work helps that, although it is not strictly necessary. Remember that the copyright notice is only valid in a specific format, "[copyright][year][name of copyright holder]."

Copyright cause of action is designed for Federal Court, so if you try to go the lawyer-free route of taking it to (a) conciliation court or (b) lower courts, it's highly probable that (a) the infringer will not show up and then demand a day in real court, and (b) lower courts will say, "That should really be Federal."

Copyright is a tricky thing. The law has been altered over time, and certain specific details can change everything about how a judgment is made. You really do need a lawyer to figure out proper uses and when somebody may be infringing.

Your inalienable rights

You cannot sell or sign these rights away. Note that work-for-hire operates under different rules.

Right of attribution: You can insist that your name is displayed (or not displayed) forever.

Right of display: Nobody can destroy an artist's work without their permission. Even if you sold it to them. Even if it wasn't authorized to be there. For example, the demolition of buildings has been halted because the city had to get permission from the artist who painted a mural on the building.

Work-made-for-hire

Note that if any contract says that they are buying "all rights" from you, they are acknowledging that you are not working for hire, because they acknowledge that you have rights. Under those circumstances, you still maintain your inalienable rights.

There's a very clear definition of what work-made-for-hire can be.

It may be made clear in your terms of employment, in which case:

• You must be an employee, not a contractor. They'd better be sending you a W-2.
• Your job description must include writing as work-for-hire.

Or it may be specified in a contract you agreed to, in which case:

• It must be a written contract. A verbal contract won't cut it.
• It must be the kind of work that is allowed to be work-for-hire.

An independent piece of fiction is not on that list. Your novel cannot be considered work-for-hire. Your short story cannot be, either, unless it is written to be part of a compendium. Allowed types are mostly movie industry stuff, instructional manuals, etc.

In a work-made-for-hire, the employer is considered the original copyright holder for all purposes, including inalienable rights.

Fair Use

Certain uses of copyrighted material are not considered infringement:

• A single copy for your own personal use.
  
  
• Items that fall under the Merger Doctrine.
  
  
• Criticism (review or parody). Note that you must comment directly upon the material you are copying. So for a book review, you can quote from the book freely, but it's technically not okay to put up a copy of the cover unless you also comment on that, although practically, it's unlikely that they would complain about the publicity.
  
  
• Library exceptions.
  
  
• Educational use - a professor copying material from a textbook for his class. Note that this is time-sensitive. If it is reasonable to get permission between when you decided to use material, and when you did use it, you are still expected to get permission.

Public domain material is material that is no longer protected by copyright at all. If you're trying to figure out whether something is public domain, the rules have changed several times. For example, a lot of stuff copyrighted in 1950-1963 fell out of copyright "between the cracks," as it were.

This doesn't address Creative Commons licenses, which are a fascinating recent development that allows people to share, remix, or reuse other people's creations while legally abiding by the terms of the original creator.

Websites and the Internet

Just because a work is online does not mean it is free to use. It may say what rights are reserved or offered on the webpage itself or the terms and conditions page of the website. If the website doesn't specify, then it is protected by copyright and any use of it will be considered infringing.

Many people confuse "Internet" with "free to copy." If you have a website with your work on it, you might want to consider adding a terms and conditions page yourself.

Before using "free" clip art for illustrations, check the terms and conditions carefully to make sure the original artist has allowed use of it. If it doesn't say, you may find yourself in hot water if you use it! That includes all derivative uses, even if you change it so much that nobody can recognize it.

For More Information:

U.S. Copyright Office

http://www.copyright.gov

Creative Commons Licenses

http://creativecommons.org/)

Preditors and Editors

http://pred-ed.com

Writer Beware

http://www.sfwa.org/for-authors/writer-beware/

Writing-World.com's Rights and Copyrights Links

http://www.writing-world.com/links/rights.shtml

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