Copyright

Copyright Basics For Writers


Writers frequently ask me at Sidebar Saturdays about copyright issues. The topic is a tad confusing but it is also one of the most important concepts a writer should understand.

Why? Because copyright law provides legal protection for your creative work by preventing others from exploiting it without your permission or paying fair compensation.

So don’t let a little lack of knowledge on a complex topic stop you from taking advantage of the protections provided by copyright law. Here are sixteen basic facts to help you get started.

Fact 1 — Copyright creation

Copyright law in United States has its roots in the Constitution. The purpose is to promote the progress of useful arts by granting to the copyright owner for a limited time an exclusive right to their creative expression.

Copyright laws over the years have been revised to provide better protections. Under the current law, a copyright exists as soon as you fix the original work in a tangible medium of expression. It does not matter whether you write the work down with a pen, type it on your computer or paint it with brush. As long as the expression is tangible, the work is copyright protected.  

Fact 2 — What can be copyright protected

Any creative expression that is original and tangible can be copyright protected. The creative expression need not be just words. Copyright protectable material also includes music, art, sculpture, audio-visuals, film, photography, websites, software, choreography, and architectural designs. To qualify for protection a work must be independently created by an author and have at least some minimal amount of creativity. Originality only requires a low-level of creativity, a “spark of creativity.” There are a few things, however, that cannot be copyright protected (see Fact 3).

Fact 3 — What cannot be copyright protected

Titles, names, short phrases, slogans, logos, inventions, facts, ideas, and procedures — these are a few of my favorite things…that cannot be copyright protected. Trademark and patent protection, however, may exist for some of these. One caveat with regards to facts. — while facts per se are not protectable, the way you express the facts (like how you organize, select and arrange a set of facts) can be copyright protected. For example, a compilation of facts about Star Wars movies or the world of Harry Potter would qualify for protection. Works created by the U.S. government are also not eligible for copyright protection (those fall into the public domain for all to use for free — a gracious gift from the U.S. government).

Fact 4 — Ownership

Once your copyright protected material is in a tangible medium of expression, it becomes a form of property that you own. If there are joint authors, each party has equal ownership in the copyright. In order for a joint work to be copyrightable, each contribution must be independently copyrightable. Ideas, directions and suggestions are not sufficient to elevate someone to author/copyright owner status.

Like any law that governs property ownership, copyright ownership can be transferred to another person or entity by written agreement. If the work was created by an employee as part of her job duties, the work is considered a work-for-hire and belongs to the employer. It is not always clear whether the author was an employee or a contractor. The best way to determine employee status is if the author’s relationship with the employer was similar to a salaried job. For example, the copyright in an article written by a staff journalist is owned by the newspaper. Whereas a freelance writer without a work-for-hire agreement owns the copyright in anything she creates. If the work was made by a freelance writer via a work-made-for-hire agreement, the hiring party or corporation owns the copyright. See my earlier article for what constitutes a work-for-hire agreement.

Fact 5 — Publication

Under the current law, there is no requirement to publish the work to receive copyright protection. Protection applies to both published and unpublished works. But publication can start the clock on expiration under certain circumstances. (see Fact 10). A work is considered published as soon as it is made available to the public, whether via a publisher, the internet, or that flyer you created for your favorite political protest.

Fact 6 — Copyright notice after March 1, 1989

A copyright notice need not be added to works created after March 1, 1989 to take advantage of the protections provided by U.S. copyright law but doing so is good form. A copyright notice identifies the owner of the work and when it was created. It also puts others on notice the published work is protected (see Fact 9 about using a notice on unpublished work). A proper notice can increase monetary damages should you decide to sue (see Fact 11). If you need info on what elements make up an “official copyright” notice see Fact 8. For works created before March 1, 1989 move on to Fact 7.

Fact 7 — Copyright notice before March 1, 1989

Because of the various copyright laws over the years, notice requirements for published works before March 1, 1989 vary depending on the law at the time of publication. Before March 1, 1989, copyright notice was mandatory on all published works (as opposed to optional for later works). If the copyright notice was omitted for works published between January 1, 1978 to February 28, 1989, copyright protection was lost unless the owner corrected the problem within a designated time period. If a work was published before January 1, 1978, the Copyright Act of 1909 governed notice requirements — no notice then all copyright protection was permanently lost.

Fact 8 — The copyright notice

An official copyright notice has three components:

  1. the word copyright, the abbreviation “copr,” or the copyright symbol ©;
  2. the copyright owner’s name; and
  3. the year of publication.

For example, Copyright Matt Knight 2019 or Sidebar Saturdays © 2019. The name used can be either a first name or initials with a last name, or just a last name. A business can use a legally recognized trade name. For multiple or joint creators, one name is sufficient.

Fact 9 — When to add a copyright notice

If you submit an unpublished manuscript to a publisher or agent, there is no need to add a copyright notice. Copyright protection exists as soon as the work is in a tangible form. Adding a copyright notice before submitting will only make you look like an amateur. When you publish your work, definitely add your copyright notice. With books, a traditional publisher will add the copyright notice to the book prior to publication. Self-publishers should add the copyright notice to the copyright page which is right after the title page and just before the table of contents.

Fact 10 — Copyright expiration

Copyrights live a really, really long time. Upon expiration, the work enters the public domain for anyone to use free of charge. Due to numerous changes to the laws over the years, determining the duration of the copyright can be complicated. It all depends on when the work was created and/or what law was enforce when the work was published.

Under the current copyright law, the date of creation is the date when the work was first fixed in a tangible medium. The date of publication is determined by when the work was first distributed to the public or an outlet for further distribution.

Knowing when a copyright expires allows you to take advantage of the abundance of material found in the public domain. Here are three general rules for determining copyright expiration.

  1. Works created on or after January 1, 1978, copyright protection last for the life of the author plus 70 years, or 120 years from creation date if death of the author is unknown. If the creative work is considered a work-for-hire and the creator is anonymous, expiration is 95 years after first publication or 120 years from the day of creation whichever comes first. Once the copyright expires, the work enters the public domain and may be used without permission.
  2. Works created between 1923 and 1978 have two main durations:
    • anything published between 1923-1963 lasts for 95 years from the date of publication if the copyright was timely renewed (something that is unnecessary under the current law). Creative works in this bracket will not enter the public domain before 2019.
    • anything published from 1964-1977 expires after 95 years provided the owner affixed a proper notice (but regardless of renewal thanks to a 1992 law that automatically renewed the copyrights).
  3. Works created before 1923 are in the public domain.

Here is a handy chart if you need more information.

Fact 11 — Copyright registration

Registration for copyright with the U.S. Copyright Office is not necessary for your creative work to be protected by copyright law, but registration is required before you can file a copyright infringement lawsuit. So if you want to enforce a copyright, it must be registered. There are certain benefits to filing for a copyright. For example, if you register your work within three months after publication or before the infringing act occurs, you can get statutory damages and attorney fees should you win your copyright infringement suit. Registration is easy and can be done online (www.copyright.gov) for $35 (nonrefundable; $55 with credit card) and a non-returnable deposit of the work being registered.

Fact 12 — Exclusive rights

The owner of a copyright receives the following bundle of five exclusive rights:

  • The right to reproduce the work. This means your creative expressions cannot be reproduced by others unless they have your the permission.
  • The right to prepare derivative works based on the copyrighted original. This includes derivatives works like abridgments, translations, dramatizations and film versions adapted from/based on the original work.
  • The right to distribute the protected work. A copyright holder has the initial right to control distribution of copies to the public. The distribution right does not continue with the copy of the protected work once it has been distributed, i.e. a copyright holder cannot control further distribution of a copy.
  • The right to perform the work (enough said).
  • The right to display the work. This right, like the right to distribute, does not extend to a copy that has been sold by the copyright owner.

There are limitations on the above exclusive rights (see Fact 13). Just like real property, copyright is also a form of property which the copyright owner can license or sell as they see fit.

Fact 13 — Limitations to the exclusive rights

Copyright protection comes with a few limitations (and here you thought you had unfettered control over your creative expression).

Copyright protects only the particular words you use to express your ideas. Copyright does not protect the ideas themselves, which is why you see so many Romeo and Juliet plots used in novels. Copyright does not protect facts, whether scientific, historical, biographical, or the daily news. Copyright does not protect uses by third parties that fall within the fair use exception allowing others to make limited use of your work without asking permission or paying you. The law limits fair use of copyright protected material to things such as criticism, comment, news reporting, teaching, and research.

Under the doctrine of fair use, there are four factors courts consider in determining whether a particular use is fair.

  • The purpose and character of the use (Is it commercial or nonprofit? Is it educational?)
  • The nature and character of the work (Facts and ideas are not protected.)
  • The amount used in relation to the copyrighted work as a whole (Did you use a snippet or pages?).
  • The effect the use will have upon the potential market or value of the copyrighted work (Courts give this factor heavy weight).

Works created by the U.S. government are precluded from being copyrighted and are part of the public domain. One word of caution — do not assume that all works published by the government are in the public domain. The government is not precluded from owning a copyright transferred to it. If the government owns it, the government can enforce it should they choose to do so.

Fact 14 — Copyright infringement

If your work is being used without your permission, you have several options. You can sue in federal court for an injunction which is an order to stop the infringing act. If you have registered your work with the U.S. Copyright Office (with in three months of publication or before someone infringes), statutory damages and attorney’s fees are available as remedies. If you have not registered your work, only actual damages and profits are available which may make a lawsuit financially infeasible. If the infringing use is online, use a DMCA notice to stop the infringing use. See my previous blog post on DMCAs  if you need more information. Basically, you send a notice to the internet service provider hosting the infringing work and request removal.

Fact 15 — “Poor Man’s” copyright

Mailing a copy of your printed work to yourself and never opening the package does nothing for you in terms of copyright registration and protection. This misconception, commonly known as a “poor man’s copyright,” is not a substitute for registration. It is a waste of time unless you want to delete your bank account by a few dollars and create more mail for the USPS. If anything, this process would give a writer proof as to when a document was written, but you get this when you save your work on the computer.

Fact 16 — Foreign works

U.S. copyright law applies to domestic and foreign works. This is due to the many multi-national treaties that agree to give copyright protection to works from countries who are signatories to those treaties. In 1988, the copyright laws were amended to its current form when the U.S. became a party to the international copyright treaty known as the Berne Convention. You should treat any creative work, regardless of the country of origin, as if it were from the U.S.

 

If you need more information, feel free to send your questions in the contact form on this website.  If not, you are well on your way to understanding the basics of copyright law and the protection it provides.


Photo Credit: credit: Skley | Visual hunt | CC BY-ND

Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.

 

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