At the recent January “Pop-Up” social event, one of our members asked a question about copyright. The subsequent discussion made it apparent there is a lot of confusion and misunderstanding regarding copyright law.
As writers, your intellectual property in your writing is one of the most important things you own; it even becomes part of your estate when you die. So it’s important to have a good basic understanding of copyright law … and what copyright actually is.
What is Copyright?
Copyright is a form of legal protection “for original works of authorship” that are “fixed in any tangible medium of expression.” In practice, this simply means you must not have copied the work from someone else, it must be at least slightly creative, and must be recorded in a medium that can be read (or listened to, etc.) by another person (or machine). So, if it’s handwritten on a napkin in Starbucks, typed and saved on your laptop, or even saved as a voicemail on your phone, it is “fixed” for legal purposes.
In addition to giving you the sole right to copy the work, the law gives you four additional rights:
- To create other works based on the original (e.g. translations, dramatizations, movie versions, etc.),
- To distribute copies to the public,
- To give public performances of the work, and
- To display the work to the public.
If someone violates any of these rights, you then have a legal recourse to obtain compensation (“damages”). This means that if, for example, you publish a book of poetry and I put on a show for which I charge 100 people $25 each to listen to me read your book, I have infringed your public performance right and you can sue me.
So now that you understand what copyright is, let’s clear up some of those myths.
Myth #1: Works Must Display the © Symbol to be Protected
Once upon a time, but not so long ago, this was true, but now your writing is protected as soon as it’s written down. There’s no need to place the © symbol on it or the words “All rights reserved.” However, that doesn’t mean there’s no reason to display a copyright notice. The law even dictates the format a copyright notice shall have, and I’m sure Congress wouldn’t have spelled that out for no reason!
The main reason for doing so is to give notice to anyone reading it that the work is protected under copyright law. So, they can’t turn to the judge and say, “But, Your Honor, I didn’t realize it was copyrighted.”
The copyright notice should contain these three elements:
- The © symbol, or the word “Copyright,” or the abbreviation “Copr.,”
- The year of first publication of the work, and
- Your name, or an abbreviation by which your name can be recognized, or a generally known alternative designation of the owner (e.g. a pen name).
Example: © 2018 Ian Feavearyear
Myth #2: You Need to Pay an Attorney to Register Your Work with the Copyright Office
The formal registration of your writing with the U.S. Copyright office is actually very straightforward, and surprisingly inexpensive, so there is usually no need to hire an attorney. As of January 2018, it costs just $35 to register a single work. The “paperwork” can even be completed online.
Formally registering the work also gives you much greater legal protection, so may be well worth the small fee. Here are some reasons:
- You cannot bring a copyright infringement lawsuit until you have registered the work. So, if someone copies your book and you want to sue, you’ll have to formally register it with the copyright office first anyway!
- If the work was already registered (within three months of first publication), you are also entitled to higher levels of compensation (“statutory damages”) and an award of attorney fees.
- If registered within 5 years of publication (or before publication), registration creates what is called “a legal presumption of a valid copyright.” This means you generally won’t have to prove in court that you were the author of the work, that it is original, etc.
Note: If you are publishing via a traditional publisher, they will almost always take care of the copyright registration for you, but double checking is always a good idea.
Myth #3 Mailing a Copy of the Work to Myself is a Valid Alternative
This practice, generally known as “poor man’s copyright” has minimal legal benefit. Under U.S. copyright law, there is no actual provision regarding this type of protection. The only purpose it may serve is to establish the work was created on or before a certain date. However, it offers no direct evidence you were the author of the work, or when it was actually created.
Myth #4 You Cannot Copyright Fictional Literary Characters
This is not so much a myth as a legend based in fact. Though you cannot directly copyright a fictional character, courts have generally decided that, under certain circumstances, a strong and well-developed character can be given copyright protection (though other courts have disagreed!).
The well-know Judge, Learned Hand (don’t you just love that name) put it this way:
“It follows that the less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for making them too indistinct.” Nichols v. Universal Pictures Corp. (1930).
There are some excellent online articles about protecting literary characters (as opposed to “graphic characters” – those that are drawn, for example). This Wikipedia article gives a great overview.
Myth #5: I Own the Copyright in Everything I Write
Assuming the work is your own original and creative work of authorship, it is generally true that you own the copyright. However, there are two primary means by which writers do not have the copyright in what they have written. These generally fall under the single heading of “Works Made for Hire.”
Works Created “in the Course of Employment”
This simply means that if writing is a standard responsibility of your everyday job, and you work for an employer, you usually won’t own the copyright for what you write at work.
Specially Ordered or Commissioned Works
Works created by independent contractors may not be owned by the author if the work is of a certain type AND there is a written contract stating the work is a “work made for hire.” (See Works Made for Hire (PDF format) by the U.S. Copyright Office.)
So, if I, on behalf of Inspire, commissioned Francine Rivers to write an instructional post for this blog and, in our contract, I specified this is a work made for hire, Inspire Christian Writers would own the copyright, NOT Francine.
You can also give your copyright to someone else; it is just a form of property after all, like that antique table in the corner of the room. However, in this case, you have to already own the copyright in order to give it away. So, when you write that bestseller and want to give your favorite niece a consistent income through her college years and beyond, you can give her the copyright to your blockbuster. If I were you, though, I’d speak to an attorney first!
Disclaimer: This article is for informational purposes only and not for the purpose of providing legal advice. You should always CONTACT A LICENSED INTELLECTUAL PROPERTY ATTORNEY to obtain advice concerning copyright issues related to your own writing.