Geetanjali Mukherjee

Sunday, May 21, 2017

Guest Post: Copyright Basics for Writers


Today I have a guest post on copyright for writers. This can be a tricky issue, and often there are many myths and areas of confusion. Author and lawyer Tom James shares some basics about copyright law for authors.





Most likely you did not become a writer to learn about law. The more you know, though, the better equipped you will be to protect your interests when dealing with publishers, agents and co-authors, and to defend yourself against claims of infringement. Every writer should have a basic understanding of copyright law.

What copyright protects

Copyright protects nearly any form of original, creative expression, whether it’s fiction, nonfiction, poetry, a drawing, a photograph -- even e-mail messages and scribbled doodles.

Only expression is protected; the underlying ideas and information are not. Ideas and information may be protected under patent, trade secret or other laws, but not by copyright. Story plots and ideas for stories do not receive copyright protection; only the words used to flesh them out do.

Copyright protection does not exist until creative content is fixed in a tangible medium of expression. If you orally communicate a story to others but it is not recorded or written down, and somebody later writes a story just like it, copyright law will not help you. This is one reason why it is important to write things down, save them in a computer file, or dictate them into a recording device.

The exclusive rights of a copyright owner

The owner of the copyright in a work has the following exclusive rights:

·    Reproduction — the right to make copies of it;
·    Distribution - the right to make the first sale of each copy of the work;
·    Display - the right to display the work publicly, such as on a website;
·    Performance - the right to recite, act, broadcast, etc. the work;
·    Derivative works -- the right to create new works based on it (abridgements; translations; sequels; movies based on novels; sound recording of a performance of a dramatic work; etc.)

Publishers often use special terms to define the scope of the rights they are buying. For example, a magazine publisher may ask for a license of first serial rights, or reprint rights, paperback rights, electronic publication rights, foreign translation rights, screen adaptation rights, and the like. These are all subcategories of one or more of the five exclusive rights of copyright owners listed above.

It is important for contracts to be clear about which specific rights are being licensed.

Ownership

Copyright originally belongs to the author.

Normally, the author is the person who created the work. In the case of a work made for hire, however, the person or company commissioning the work is deemed to be the author, and therefore the owner of the copyright. A work made for hire is one that is either made by an employee within the scope of the employment or specially commissioned. In some countries, including the United States, a work will not qualify as a “specially commissioned” work made for hire unless it falls into certain statutorily defined categories and the parties agree, in a writing signed before the work is created, that it will be a work made for hire. 

When two or more people collaborate on a work with the intention that it will be a unitary whole, then they are considered co-authors of the work and they own the copyright jointly. If an author did not have the intention of merging his work with another person’s work at the time he created it, then he retains sole ownership of the content so created even if it is later contributed to another work. For example, if Bernie writes a poem and Elton later asks if he can set it music, and proceeds to do so, then Bernie is the owner of the copyright in the lyrics and Elton is the owner of the copyright in the music. If, instead, Bernie and Elton resolve to write a song for which Bernie will write the lyrics and Elton will write the music, then they are joint owners of the copyright in the whole song (music and lyrics.)

It is always a good idea to have a written agreement in place when collaborating on a writing project with another person. This can help prevent disputes about the parties’ intentions with respect to copyright ownership, licensing rights, division of earnings, rights with respect to the making of derivative works, transfers of ownership, how works will be credited, and so on.

Formalities

At one time, several countries, including the United States, imposed certain formal requirements on copyrights. For example, the United States once required most categories of published works to be manufactured in the United States in order to be protected by copyright in the United States. Until 1989, published works also needed to have a copyright notice on them. Today, the United States and many other countries are signatories to the Berne Convention and other international treaties that abolish such requirements. In many countries today, copyright automatically comes into existence when protectable content is fixed in a tangible medium of expression. Formalities like the copyright notice, the words “all rights reserved, registration, etc. are no longer necessary.

Copyright notice

Although it is no longer necessary, there are still benefits to including a copyright notice when your work is published. Doing so will prevent an infringer from making a claim of innocent infringement. In addition, seeing the notice may deter those who might not otherwise know the work is protected by copyright.

The preferred format of the copyright notice is: the word “Copyright” or the © symbol, followed by the year of publication and the copyright owner’s name.

Registration

Registration isn’t required. It is a prerequisite to filing an infringement lawsuit in the United States, though. Also, waiting too long after publication to register the work can have the effect of severely limiting the amount of damages you can recover. It can also affect your ability to recover statutory damages and attorney fees.

It will be most economical to register a group of works together whenever possible. The U.S. Copyright Office, for example, allows for a single “group registration” of compilations, collections, collective works, and serials.

Traditionally, publishers rather than authors took care of the registration. Increasingly, however, the onus is being placed on authors. This is particularly true in the case of Internet publishing. Many website owners never get around to registering the copyright in contributed content at all. When that is the case, you should do so.

“Fair use”

Laws in the U.S., U.K. and other countries allow portions of copyrighted works to be used for certain purposes, such as teaching, news reporting, research, criticism, commentary and parody, in some circumstances.

The scope of fair use varies considerably from country to country. In the United States, it is defined by both statutory and judge-made law. Unfortunately, there are not many bright-line tests in this area. Oft-heard assertions like “Copying up to 10% is fair use” are not true. Courts consider not only the amount copied but also the substantiality of the portion copied. Copying less than 1% of a work could result in copyright liability if that 1% contains the heart of the work, for example.

Courts also consider other factors: the impact of the use on the market for the work; the nature of the work; the purpose and character of the use.

“Fair use” is fraught with many gray areas. When in doubt, ask for permission.

Public domain

When a work is not protected by copyright, it is said to be in the public domain. Anyone may freely copy materials that are in the public domain.

In the U.S., copyrights in most kinds of works (other than works made for hire, and anonymous or pseudonymous works) automatically enter the public domain 70 years after the death of the author.

Some older works may be in the public domain for other reasons, such as failure to comply with formal requirements that existed at the time.

A work may also be in the public domain if the copyright owner has expressly dedicated it to the public domain.

Some kinds of works are in the public domain because they are a kind of material that does not receive protection. Some examples include: titles and short phrases (which may be protected as trademarks in some cases, however); works created by animals; sound recordings made in the United States before 1972. This is not an exhaustive list.

Conclusion


Obviously, it is not possible to cover everything a writer needs to know about copyright law in a blog post. Every freelance writer should have at least some familiarity with the basics, though. You might not care if somebody steals your work, but you don’t want to find yourself in a position where somebody copies your work and then claims you are the infringer. And you don’t want to unwittingly waive or forego important rights. Know your rights and protect them.

© 2017 Tom James. 

Tom James is an attorney in private practice in the U.S.A. He is the author of Website Law: the legal guide for website owners and bloggers and Copyright Protection for Websites, which are available for purchase at EchionBooks.com, Amazon.com, and most other online booksellers.

Sunday, May 14, 2017

First Impressions Matter




Recently I have been reading a bunch of books for review - going through my backlog of books I promised to review as well as reading a few ARCs (advanced reader copies) of books that I would have read anyway, provided by the publisher. And one thing I found with the ARCs was the negative impression most of them made because of relatively minor issues that are easily fixed - poor formatting and typos. 

To be clear, I am not talking about the occasional mis-placed comma or an extra page lurking in the manuscript. I mean that for at least two of the books I had difficulty reading even a paragraph because the formatting at least on my copy of the book was terrible. There were no page or chapter breaks, or sentences abruptly had entire line spaces in the middle. It was as if an eight-year old had done the formatting. Actually, it might be insulting to that 8-year old, who might actually have done a better job. 

Several of the books also had many glaring typos and errors. I stopped keeping track after the 20th typo. While it is likely that many of these mistakes will be corrected before the book goes to print, it is possible that many of them will remain in the manuscript. And since the books in question are by big-name authors, the mistakes will be ignored by readers, and may not affect the fate of the book or the message in any way. 

However, as an indie author, I am acutely aware that there is a glaring double-standard - what Random House or Simon & Schuster can get away with, you or I as an indie can’t. The other day I was on an authors’ Facebook group, where one debut author asked why her book wasn’t selling or being read on KU, despite the price being $0.99. And while I didn’t click through to her book, many others had, and the primary comment was that of a poor impression being made - a less-than stellar cover and too many errors in the sample. 

Quite often authors write to me to request an interview for my blog, and I have had occasion to look at the books and Amazon profiles of many indie authors. Something that always amazes me is the number of times I have found glaring errors or terrible grammar in book descriptions. If I can’t get through a 200-word description, I won’t be exactly enticed into reading the book. And the flip side happens as well - I have been excited about a book simply from reading the description, sometimes just the first line. I don’t read a lot of YA, but the first sentence of the back cover blurb of the Red Queen series got me hooked - I didn’t need to read more to know I would enjoy the book.

All of this is to say, that as an indie, the odds often seem stacked against us. I know that we are all doing our best, having taken on the duties covered traditionally by publishers, and it can seem like a lot. But before railing against Amazon or readers or wondering why your sales are abysmal - take a fresh look at the impression your book is making. You don’t need to spend $1000s getting the best cover or the most credentialed developmental editor; but at the very least make sure your cover fits the expectations of the genre, and that your book is relatively error-free. Invest in a good copy-edit. Get your friends to look over your book description and see whether it pops or is underwhelming. 

Each aspect of getting our work out there is almost a skill in itself. Joanna Penn talks about how she learnt to write good book descriptions by studying those of bestsellers in her genres. There is so much to learn it can be overwhelming. I have lists of things to do that include “re-write book descriptions” and research book categories. As we keep learning more, we need to revisit our books and apply that knowledge. We can’t get it perfect every time, but there is a sense of satisfaction in knowing that we are taking action and making our books the best they can be.

None of these are guarantees that you will sell more, but there are enough barriers to discoverability as it is. Don’t make it unnecessarily harder for yourself. 

Thursday, May 11, 2017

My Foray into Writing Fiction



A few weeks ago I published my first short story. 

This is also the first short story I have ever finished.

I had very low expectations for it, given that I have been writing fiction for a relatively short period of time. I won Nanowrimo in 2015, but that novel is just sitting on my hard drive, waiting for me to edit it or deem it unredeemable. 

People used to me why I don’t write fiction. My mom constantly asked me this, accompanied by ideas for stories. If you’re a writer, you know how annoying that is. Others would say this to me, usually as a hint that I probably should start writing something with a wider appeal.

My response was always - I don’t have any ideas for fiction. I can’t write it. That’s just not me.

But the thing is that it was me. I used to write the beginnings of stories and little sketches when I was in middle school, but chickened out halfway through and never completed anything. My notebooks are filled with conversations and scenes that never went anywhere. 

I always assumed that if I were meant to write fiction, the entire story would come to me in a flash and all I had to do was write it down. I thought the words would pour out smooth and polished. Since that never happened, I just kept waiting. 

But here’s the power of bringing intentionality into your life. I started listening to podcasts on writing, and inevitably most of the authors interviewed were fiction writers. Hearing their origin stories and forays into writing I realized that there would never be a moment when the stars aligned and everything would be perfect. If I wanted to write fiction I would just have to do it. 

Listening to authors talk about work and discipline and tricks for boosting word count I tiptoed into Nanowrimo and managed to write 50,000 words of a novel, although most of it wasn’t even first-reader worthy. But I did it and realized that I could write fiction. Maybe not very well, but it was possible.

And then I started getting ideas - all the time. Everywhere I went I heard stories. I took notes on the ideas when I could, but didn’t develop any of them. Still, I was waiting. For the timing to be right. To finish my current work-in-progress. To take a fiction-writing class. To read more craft books. Listen to more podcasts. 

Until finally one day when I got fed up with my own excuses. And I decided to take my laptop to a coffee shop and write - no matter how badly. Awkward phrases and cliched sentences poured out, but soon I had a draft. And then I revised that draft and pressed publish. 

As I said, I wasn’t expecting anything. I simply wanted to change how I saw myself. I wanted to take that first tentative step along the path of writing stories. 

That first step changed something in me. Not just in how I saw myself, but in how others saw me. I could have talked forever about wanting to write fiction, but I discovered there is power in taking action. My first readers loved the story, even given its flaws. They told me my characterization was my strength, when I had always believed that was my weakness. I got a complimentary review from BookAngel.co.uk. I had an animated conversation with a few friends about the various ideas I had for stories and a series I was thinking about. Previously, I had never even talked about books with these friends, and suddenly we were discussing plot and characterization. It was a shift, that came from my taking that first step and putting my work out there. 

I have a lot more to learn. And lots of stories bursting for me to tell them. I definitely believe those authors who say that creativity begets creativity. If you feel as if you have no ideas, act on something. Create something. You will find there is a river where you thought there wasn’t even a rivulet. 


And if you’re interested, you can read my story (and maybe leave a review 😀): The Brooch
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