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.
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.
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.
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 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.
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.
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.
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.