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Copyright, Public Domain, and the Wild Wild Web

by Moira Allen

Disclaimer: I'm not a lawyer, and this should not be construed as legal advice.

The growth of the Internet has brought an explosion of opportunities for writers. It has enabled writers to find markets and audiences in niches never before accessible. It has opened doors to new forms of expression and access to new types of media. It has brought about the rise of the e-book, and a surge of new opportunities in the Kindle and Nook markets. It has brought opportunities for communication, connection and sharing through e-mail, chats, forums, websites and social media outlets that, a little over a decade ago, we could scarcely have dreamt of.

It has also brought a wave of confusion about what rights we, and others, have with respect to the work that we're now transmitting so blithely through the ether. If it's publicly "available," does that mean it "belongs" to the public? Many fledgling writers have supposed, erroneously, that if something is posted online or transmitted by e-mail, it's "free to use" and can be reposted or retransmitted at will. Others, conversely, fear that putting their work out there means that they'll lose the right to publish or even control it.

So let's take a moment to clarify the issue of what copyright law protects, online and off -- and what types of materials are, and are not, "free to use."

What Does Copyright Protect?

The first official "copyright law" was established in Britain in 1710. Here's a definition of the term from Wikipedia:

"Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time. Generally, it ... gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other related rights." The article goes on to state that "... the contemporary intent of copyright is to promote the creation of new works by giving authors control of and profit from them."

In plain English, here are some of the things that your copyright enables you to do:

  • It protects your right to claim authorship of a work you have written or created (including writing, artwork, photography, music, sculpture, and anything else you create in a fixed form). You, and only you, have the right to say that you are the author of your own works.

  • It grants you exclusive ownership of your works. No one else can buy or sell them, publish them, take them or give them away, without your permission. You, and only you, have the right to determine how your works are used, where, when, and by whom. Only you have the right to submit your works for publication, and to accept (or refuse) a publication contract.

  • It provides you with a suite of rights that you can license to others. This includes a variety of publication rights, as well as performance rights, the right to display your work, and more. Note that in most cases, licensing some or even all of your rights does not mean that you've given up your copyright.

  • It gives you the right to create derivative works. This is particularly important for fiction writers. If you create a character, a world, or a particular plot line, only you may use it in additional stories, sequels, spin-offs, etc. Only J.K. Rowling, for example, may write about Harry and Dumbledore, or set a tale at Hogwarts. And while anyone can set a story in New York, only Cleo Coyle can write about the Village Blend coffee shop that she invented for her "coffeehouse mysteries." For nonfiction writers, this has applications in terms of spinning off different versions of a similar article for different markets -- a short version, a long version, a version for parents and another for teens, a column, a book, etc.

  • It gives you the sole right to profit from your intellectual property. More specifically, it assigns the potential profits from your works to you and you alone. Only you have the right to sell your work and make a profit from it -- a right that transfers to your heirs or estate.

All of these rights -- and here's the important bit -- are exclusive. They belong only to you, as the creator of your work. This list, therefore, not only demonstrates what rights copyright law grants to you, but the rights it denies to others with respect to the use of your work.

Copyright and Licensing Rights

As writers, our goal, typically, is not to hold onto every right granted us under copyright law. Most of us want to be published, and that means giving up certain rights in exchange for certain benefits.

Other articles on Writing-World.com address the array of rights that writers are most likely to be asked to sell or transfer, so I won't attempt to repeat that information here. However, I will take a moment to touch on the broad categories of rights that you're likely to license:

  • Media. This refers to the way in which your work may be published and distributed. The two most common media designations are "print" and "electronic," with "audio" as a distant third. Unfortunately, it has become increasingly common for a publication that distributes in only one medium to seek the rights to the other -- print publications often demand electronic rights and vice versa.

  • Distribution. In the days of print-only publication, American writers typically sold "First North American Serial Rights" (FNASR), meaning that their works would be distributed primarily within North America. (Distribution rights refer to where the work is distributed, not to the location of the publisher.) When a work is published online, that term is meaningless, as an article in an electronic publication can be accessed by readers around the world. Another type of distribution right is "language" rights (e.g., "English-language rights") rather than geographic rights.

  • Exclusivity. The degree of exclusivity that is attached to a set of rights ensures the degree to which a publisher will be the only agent licensed to use, distribute, or profit from your work. Some rights, such as first rights, are exclusive by nature -- after all, a work can only be published first once. First rights are sometimes subdivided by media or distribution (e.g., first electronic rights, first British serial rights), but many publications consider any form of publication to be "first," and will treat a previously published work as a reprint regardless of such sub-clauses. Some publishers may require total exclusivity; others may request exclusive use of a work for a period of time or in a particular market area. Probably the most "exclusive" rights transfer is the transfer of "all rights" to a publisher, which basically precludes the writer from using that work again, anywhere.

Common Misperceptions about Rights

Writers are often confused about what happens to their rights in the absence of a contract or formal agreement. Some of the common misperceptions I hear about rights include:

  1. "I didn't sign a contract, so I didn't give the publication any rights." Many rights are "use" rights, which means that they are transferred when used, regardless of whether you have a contract. You have transferred, at the very least, "first" rights, or first rights in that particular medium. However, in the absence of a contract, a publisher can't claim a host of additional rights -- even if it states that it acquires such rights in its guidelines.

  2. "I wasn't paid, so the publisher didn't buy any rights." Payment, or lack thereof, means even less than the absence of a contract. As above, all that matters is whether you permitted the use of the material. If you did, the associated rights were transferred, whether or not you were paid.

  3. "All rights revert to the author after publication." I always snicker when I see this line in a contract or publishers' guidelines. Some rights may revert, but never all. First rights, for example, can never "revert," because once they are used, they are gone. Similarly, once a piece has been published, no subsequent publication can be fully "exclusive."

  4. "Our collective copyright notice means we own your copyright." Most publications, print or electronic, carry a "collective copyright notice" that applies to the publication as a whole. This does not mean that the publication owns the copyright to individual contributions -- even though there are, indeed, publishers who believe otherwise. According to the Copyright Office:

    "Under the present copyright law, the copyright in a separate contribution to a published collective work such as a periodical is distinct from the copyright in the collective work as a whole. In the absence of an express transfer from the author of the individual article, the copyright owner in the collective work is presumed to have acquired only the privilege of using the contribution in the collective work and in subsequent revisions and later editions of the collective work." (http://www.copyright.gov/fls/fl104.html) This notice does, however, provide a benefit from you. Again, according to the Copyright Office, the presence of this notice can be enough to defeat a defense of "innocent infringement" if your work is stolen, even if your own article does not bear a copyright statement.

  5. "Your copyright reverts to you on publicationů" I've often seen this clause in guidelines or contracts. However, if you never transferred your copyright (via contract) in the first place, it doesn't "revert" -- because you never lost it. The publisher doesn't own it, and never did, even if they erroneously believe that they do.

It is, of course, possible to transfer your copyright to a publisher. This is most often accomplished through a "work-for-hire" agreement. Work-for-hire contracts were originally developed to ensure that a company would be the legal owner of the works created by its employees. However, many publishers use this term to obtain the copyright to works created by freelance writers.

When you sign a work-for-hire contract, you are literally giving up your copyright, and all the rights and protections that it provides. It means that you can no longer legally claim to be the author of the work (even if your name is still on the byline). A publisher is no longer obligated to credit you with the work, but can remove your name or attribute the work to someone else. You have no further rights to sell (or withhold) the work, or to profit from it. Perhaps more significantly, you lose the right to create derivative works -- which means that, in the case of an article, you couldn't market a "revised" version of the same piece without being in danger of infringing upon the publisher's copyright.

Copyright and Public Domain

The preceding should, I hope, help establish what copyright law enables you to do with your own material -- and what it allows publishers to do with your material. But what about the material of others? By making so much material available so publicly, the Internet has caused many writers a great deal of confusion about what types of material are actually "publicly available."

The term "public domain" doesn't help. Nor does it help to find, when you go to Google for a definition, you find the following information right at the top of the search results:

  1. The state of belonging or being available to the public as a whole.
  2. Not subject to copyright.

Unfortunately, many writers have come to suppose that "public domain," in the copyright sense, refers to the first definition: "being available to the public." However, as it applies to copyright law, public domain actually means "belonging to the public" rather than "available to the public." A work may be available to the public without belonging to that public.

Returning to the initial description of copyright, you'll recall that one of its provisions was to establish the ownership of a creative work. When you create a work, you are its owner. As its owner, you have the sole right to determine what happens to that work and where it is published, and you are also the only person who has the right to sell that work to a publisher for a profit. Your work is privately owned (by you), not publicly owned (by everyone).

You can certainly make your work "publicly available," by posting it on a website, by selling it to a magazine or webzine, by broadcasting it, by creating an e-book, or whatever. But even if you "give it away" for free (again, for example, by posting it online or creating a free e-book), that doesn't transfer its ownership out of your possession. It's still yours.

When a work ceases to be privately owned by one person, and becomes publicly owned by everyone, that means that all the rights hitherto reserved to you are now equally available to everyone. That's why, today, anyone can write a story featuring, say, Romeo and Juliet, sell it, and profit from it. (However, just to be clear, your Romeo story, as a new creative work, is itself protected by copyright, even though the characters are not.)

(It's important to note, however, that just because a work is in the public domain, that does not mean it's available to plagiarize. While it's perfectly legal to write a new, original story about Romeo and Juliet, sell it, publish it, or post it online, it's not acceptable to copy an existing Shakespearian play and try to sell it as your own!)

One of the critical elements of copyright law is determining when and how a work passes out of copyright protection and into the public domain. Many charts and articles are available to help one determine whether a work can be considered "publicly owned" and therefore available to you to use as you see fit. To make things more confusing, the rules on when and how something passes into the public domain vary from country to country. For U.S. writers, however, here's a short, and certainly not all-inclusive, list of materials that are considered "public domain:"

  1. Materials published prior to 1923. Books, magazines, stories, articles, poetry, songs -- anything published before 1923 is generally fair game. There are exceptions, but they are rare. (The character of Sherlock Holmes, for example, is still protected even though the first stories were published in the 1890's.)

  2. Materials published by the U.S. government. Most publicly issued government documents, reports, studies, etc. are public domain.

  3. Materials issued as press releases or marked "for public release."

  4. Materials that are classified as copyright-free by the author (i.e., the author voluntarily forfeits the copyright).

There is another category of almost-copyright-free materials that fall under the "Creative Commons" license. Actually, Creative Commons offers a wide range of license options, depending on how much or how little control an author wishes to retain over a work. Creative Commons is NOT the same thing as public domain, and a Creative Commons license may have a variety of use restrictions and attribution requirements. Its goal, however, is to make material more freely available for re-use, distribution and development.

If a work does not fall into one of these categories, however, it is exceedingly unwise to assume that it is in the public domain, or available for re-use or redistribution, regardless of where it is found or how "available" it seems to be. The presence or absence of a copyright notice is irrelevant; copyright law no longer requires material to actually physically display a notice to be protected. The mere act of creating a work places it under your copyright -- so the fact that a work has been created outside of any of the categories above means that it most probably is under someone else's copyright.

Summing Up...

While the Internet has changed the playing field for writers in many ways, surprisingly, copyright law is not one of them. Many writers suppose that the "rules" about copyright have somehow relaxed in the Internet age. In fact, quite the opposite is true. The Digital Millenium Copyright Act strengthened existing copyright regulations, responding to the amount of theft and piracy that was taking place online.

Copyright law treats all creative works the same, regardless of where and how those works are published and/or distributed. In the eyes of copyright law, the form, mechanism, or medium of publication and distribution is irrelevant; all that matters is how the work is created. It exists to protect the creator -- you.

Copyright law was originally developed to protect writers from avaricious publishers and booksellers. Today, it still fulfills that function. Its creators probably never imagined, however, that one day it would be protecting writers from each other!

Related Articles:

Protecting Your Work Against Electronic Pirates, by Charles Petit
http://www.writing-world.com/rights/pirates.shtml

Copyright Infringement: A Question of Give and Take, by Moira Allen
http://www.writing-world.com/coffee/coffee50.shtml

Copyright Infringement: Once More, with Slightly Sharper Teeth, by Moira Allen
http://www.writing-world.com/coffee/coffee51.shtml

Don't Do Us Any Favors: Don't Steal Our Work, by Moira Allen
http://www.writing-world.com/rights/favors.shtml

Someone Stole My Article! What To Do When It Happens To You, by Moira Allen
http://www.writing-world.com/rights/plagiarism.shtml

For More Information:

Copyright Law
http://en.wikipedia.org/wiki/Copyright_law

Public Domain
http://en.wikipedia.org/wiki/Public_domain

The Statute of Anne (the original 1710 copyright law)
http://en.wikipedia.org/wiki/Statute_of_Anne

Creative Commons
http://creativecommons.org/about

Related Articles:

The Nitty-Gritty of Copyright, by Abra Staffin-Wiebe
http://www.writing-world.com/rights/abra.shtml

Rights: What They Mean and Why They're Important, by Marg Gilks
http://www.writing-world.com/rights/rights.shtml

Top Ten Questions About Copyright Permissions, by David Taylor
http://www.writing-world.com/rights/topten.shtml

Understanding Rights and Copyright, by Moira Allen
http://www.writing-world.com/rights/copyright.shtml

Copyright © 2012 Moira Allen

This article may be reprinted provided that the author's byline, bio, and copyright notice are retained in their entirety. For complete details on reprinting articles by Moira Allen, please click HERE.


Moira Allen is the editor of Writing-World.com, and has written nearly 400 articles, serving as a columnist and regular contributor for such publications as The Writer, Entrepreneur, Writer's Digest, and Byline. An award-winning writer, Allen is the author of eight books, including Starting Your Career as a Freelance Writer, The Writer's Guide to Queries, Pitches and Proposals, and Writing to Win: The Colossal Guide to Writing Contests. In addition to Writing-World.com, Allen hosts Mostly-Victorian.com, a growing archive of articles from Victorian periodicals, and The Pet Loss Support Page, a resource for grieving pet owners. She lives in Maryland with her husband and the obligatory writer's cat. She can be contacted at editors "at" writing-world.com.

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