Tuesday, February 10, 2015

Let's Talk Copyright

by Susan

In the delightful book by William Kotzwinkle, The Bear Went Over the Mountain, a bear finds the manuscript of a novel a writer squirreled away in a hollow tree in the woods for safekeeping. The bear reads the manuscript, thinks it's good, and decides to head into town and pass the work off as his own and pass himself off as its author.

He didn't know about copyright "because after all, he was just a bear."

We creative sorts need a bit more knowledge on the topic. We don't want our stuff we devoted so much butt-in-chair time stolen. And we have an ethical obligation not to steal others' stuff, not even inadvertently.

I'm going to preface this by saying I am not an attorney, nor do I play one on TV. This is not legal advice, just a few tips.

First of all, the basics
Copyright is a form of protection provided by U.S. law to those who create "original works of authorship." The Founding Fathers apparently thought it important enough to write it right into the U.S. Constitution, giving Congress the power:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Article I, Section 8)

Under current copyright law, your work is protected when you put it in fixed format. Period. A copyright notice is not required, nor is registration with the U.S. Copyright Office. That said, when it hits actual publication, a copyright notice has its advantages and should be included. Registration with the Copyright Office does, too. More on that later.

What rights are you giving away when you get published? 
Copyright is actually a bundle of rights. For example, in agreeing to publication in a literary journal, you might be giving away your First North American Serial rights, but keeping your rights to subsequent reprints, online publication, etc.

Be cognizant of which rights you give away and which ones you retain. The Science Fiction & Fantasy Writers of America's (SFWA)  Writer Beware is rife with shady publishers who bury items in the contracts that take way more of your rights than you should give away for far too little in return. Think never being able to publish it yourself with no guarantee they'll ever do so, either. Educate yourself and read the agreement or contract carefully.

What is the advantage of registration?
Registration with the U.S. Copyright Office doesn't affect your inherent right to own and control your own work, but it does give you a better day in court. Registration establishes a public record of your claim. If your copyright has been infringed, and you haven't registered, you'll have to do so before you file that lawsuit. If you didn't register within three months of publication, or before the infringement occured, you're only eligible for actual damages, not statutory damages or your attorney's fees.

There's paperwork involved and, of course, a fee. There's little point in registering unpublished works, but it's important if you're publishing a book.

What if I'm doing an anthology of others' work?
It's a good idea to get a signed agreement with each contributor that the work is original and either unpublished or that they actually own the rights you need to publish. It should specify that if the author gives away rights they already gave away, or has plagiarized, that's their legal problem, not yours. The last thing you want is to get a bill from a publisher for reprinting their material. (It happens. I've seen it.)

There is a reason why a huge proportion of literary journals only take unpublished work -- it's easier. A great resource, including sample agreements, is Nolo Press's Getting Permission: How to License and Clear Copyrighted Materials Online and Off, available at fine libraries everywhere.

What about stuff on the internet?
All protected. Text, images, video, music are all protected by copyright. Does most of the world ignore this? Pretty much. In a sharing and sampling society where copying is as easy as a click or two, reuse without permission is rampant. There's probably not a lot you can do about it. Few of us are able to pull off anything like the epic takedown (language warning, be sure to scroll past all the links for the full story) that The Oatmeal's Matthew Inman pulled. But as writers who want our work respected, it's best to not participate in it ourselves.

A relatively recent innovation is Creative Commons licensing, available since 2002. Creative Commons "is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools" (from website.) If you want to allow people to use your work, or if you want to find photos and other materials you may use legally, this is a great resource. You can place restrictions on use, such as requiring an attribution or allowing only non-commercial use.

Are there exceptions to copyright?
Yes. Probably the biggie is Fair Use. Fair Use is what allows the high school teacher to copy two pages of your Great American Novel so his class may discuss the brilliance of your writing. Fair use is a set of criteria, not a set of hard and fast rules. If someone tells you fair use means you can use up to some number of words, or so many lines of a poem -- say for those little quotes that begins chapters or sections -- no such rule exists. Fair use depends on four tests:

  • The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  • The nature of the copyrighted work
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  • The effect of the use upon the potential market for, or value of, the copyrighted work

Other exceptions include works in the Public Domain, where copyright has expired, mostly items published before 1923. Titles, facts and ideas (versus explanations) cannot be copyrighted. Common knowledge, such as calendars, cannot be copyrighted.

Where may I learn more?
I'm glad you asked! The first and most basic resource is the U.S. Copyright Office (copyright.gov). Check their factsheet page for the best rundown of what you need to know.

Nolo Press puts out great legal guides, including the previously mentioned Getting Permission and The Copyright Handbook: What Every Writer Needs to Know. The laws can change, so find the most recent version of these books that you can.

SFWA has some great resources on the Writer Beware section of their website.

Find the most recent and reliable resources you can. Know your rights, stay within the law, enjoy the fruits of your labor and let others enjoy theirs.

1 comment:

  1. YOWSA! I'm printing this post out - so much good info. It's wonderful to have a co-blogger with such expertise. Thanks!


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