“So, tell me about your book,” asks one author to another at a convention. Author A freezes in her tracks and thinks if I talk about my book, Author B might steal it! As Jane Friedman and others have pointed out, it’s unlikely Author B will steal Author A’s works; however, even if Author B tried to steal Author A’s idea, as long as Author A has already written their story, they’d likely not get very far because Author A’s book is already copyrighted. Wait, what?
Tangibly Expressed Creative Works are Copyrighted by Default
According to U.S. copyright regulations set forth in Title 17 of the United States Code, any tangibly-expressed work is copyrighted by default. You don’t even need the © or the copyright disclaimer or to have formally obtained copyright for your work to legally be copyrighted. This became mandate March 1, 1989; however, it is always in your best interest to indicate when a work is copyrighted (even if you have not formally filed for copyright or have no formally registered a copyright). The reason being is that doing so can afford additional protections in the event of infringement.
But Authors Should Still Register Their Works
Of course, you can only exercise your right to pursue a lawsuit against infringement if you’re registered your work. Registration essentially creates a record of your work with you clearly indicated as the owner with the U.S. Copyright Office. If you have registered your work, then you are able to claim damages and such if your work is infringed upon. Specifically:
Registration is requisite before an infringement suit can be filed in court
When registration is made prior to or within five years of publication, registration establishes prima facie (or self-evidence) of the copyright’s validity
Copyright owners are eligible to claim statutory damages, attorneys’ fees, and costs if the registration is filed before infringement occurs or within three months after a work is published
Registration of copyright permits copyright owners to establish a record of copyright with the U.S. Customs and Border Protection (CBP) for protection against important of infringing copies.
I should add that registration costs $35, so it literally costs you nothing to protect your creative works’ interests. Imagine if you write a story and someone else writes a similar story and they register their work before you register yours.
Case a point. I know of a USA Today bestselling author who writes rom-coms whose writing was most likely ripped off by a better-represented author. The works had similar plot structures, similar character archetypes, and similar themes. Names were changed, and the organization of the story was different; however, the similarities were uncanny. Because Author A in this case didn’t have a registration for her work and because Author B scrambled the content, proving the infringement was cost prohibitive. Author A lost a lot of sleep over this situation before letting it go because she was advised by representatives for Author B that they had more resources to fight the claims with. Author A was discouraged from publicizing her claims that plagiarism or infringement occurred under threat of legal action.
So What is / isn’t Copyright Infringement
The legal definition of copyright infringement is use of works protected by copyright law that are used without permissions or by infringing upon exclusive rights granted to copyright holders (like reproduction, distribution, displaying, etc.). Here are some fun facts:
To surely no one’s surprise, what Napster did in the late ‘90s and early ‘00s by collecting and distributing music without permission from the copyright owners was infringement
You know how bands play covers? Well, legally, the venues that hire those bands are infringing on artists’ copyrights by not having explicit permission for the bands to play those songs on their premises. I guess what I’m saying is that every club in America owes Journey penalty funds.
Parodies and satire are legally permissible in music and in literature. You know how Weird Al takes music and creates similar yet different tunes? That falls under the auspices of parody and doesn’t constitute infringement.
There are no affixed laws for determining when the terms of fair use cross into infringement. Infringement is determined on a case-by-case basis by the courts overseeing cases where accusations of infringement occur.
Generally speaking, it’s best to ask permission when and if you want to use or to heavily reference someone else’s work. You also always want to do your due diligence to the best of your ability to be able to demonstrate (if need be) that you were not trying to infringe. This might not spare you entirely should you infringe upon another artist’s copyrighted content, but it can help.
Don’t Publishers Hold My Copyright?
Some authors wonder about who owns their copyright if they do publish. These days, no matter how you publish, you should never sign away your right to copyright. Unless you’re a ghostwriter or are creating a work for hire, you should retain copyright of your work; however, you can / do give publishers a right to print your work. Usually, this is an exclusive right to reproduce your work in digital and print formats. Many publishers’ contracts include clauses that stipulate they retain exclusive print rights for e-book and other digital formats not yet discovered because when everything went digital, many publishers were on the losing side of legal battles regarding reproduction rights.
So, if you’re going to publish traditionally, review the contract with a lawyer familiar with copyright law and negotiate the contract as you see fit. Consider what vehicles your book might be useful for and protect your interests. A good publisher will never try to withhold publication rights that they cannot use.
Why Do We Even Need Copyright Laws?
Copyright laws exist to protect the interests of innovators. They aim to encourage creative expression and to promote progress in the arts and in science while protecting authors’ rights. For this reason, copyright legislation protects works for the author’s life plus 70 years (for works created after January 1, 1978, that is). The idea is that the author plus his or her beneficiaries profit from his or her creativity. Many disagree with this on the grounds that creative works should be free for other authors to use / to be inspired by. They argue that mostly corporate entities profit from copyrights anyway. Here are my thoughts.
An artist should have say-so in the ownership of his / her intellectual property. They should also have a say in who owns said rights after he / she passes from this life.
Publishers would struggle if copyright terms were any less. Many publishing houses thrive on backlist and longtail titles that are more profitable in the latter years of an author’s career. Should those titles be reproducible or accessible by anyone, there’s a risk publishing houses would lose major revenue resulting in an inability to publish new authors’ creative works
Authors have the right to choose if they want to relinquish their right to copyright at any point
I have other thoughts, but on the flip, let’s consider that the majority of Disney’s best creative works have been inspired by fables and fairy tales long since outside of copyright protection. Frozen, Aladdin, The Little Mermaid, Cinderella, Snow White and the Seven Dwarfs, The Sword and the Stone, Alice in Wonderland, etc. are all directly or indirectly inspired by other works. Without copyright expiration, these works couldn’t legally exist.
Importantly, I should also point out that despite the success of Disney’s works, the original works continue to live on as classics. What’s more, perhaps because of Disney’s use, these works continue to remain on the forefronts of our minds and children’s’ bookshelves.
What’s more, in defense of combatting copyright, let’s say J.K. Rowling passes away and her sons inherit her estate. For whatever reason, these young men decide to cease publication of Harry. No new Harry works. No Harry products. No more Harry. While this is counter-intuitive to profitability, it is something to consider—while copyright aims to promote creativity and innovation, its terms potentially inhibit it.
Why am I telling you this? I want you to see both sides of the coin. Copyright isn’t black or white. It’s complex. This is just an overview of some legalities as well as your rights and interests and food for thought as an author. What I encourage you to do is to read further. Read about why you do / don’t want to copyright your works. Consider registration if you are in favor of copyright (actually, just do it if you are in favor). Become informed about the business side of things because you are an author—a creative entity, but you are also your own brand, and it is up to you (and your lawyer if you have representation) to protect your interests. Know what those are and where you stand before someone asks you to put ink to a contract.
Another thing you should do when it comes to publishing your writing is making sure it’s pitch perfect before pitching it to an agent or before publishing independently. Hire an editor to review your manuscript and to help you make sure the writing, style, structure, and focus are all on point.