Most writers want nothing more than to spend all their time writing their books. These days, though, writers need to understand the business side of writing as well as the creative side. This includes being aware of some elements of Intellectual Property (IP) Law, in particular that which applies to copyright. This post is a summary of legal information that all writers should know.
Disclaimer: I am not a lawyer and the information in this post should not be considered legal advice. This post pulls together information I compiled for a series called Legally Speaking at DIY MFA. When putting together series, I interviewed my husband, an IP litigator and “translated” his explanations from legal-speak to more user-friendly language. The purpose of this post is to give writers (that’s you!) the basic information you need so that when they do speak with an agent or lawyer about legal matters, they can be well-informed and can ask smart questions.
The Basics of Copyright
Before we dive into details of copyright, let’s cover some of the basics, shall we?
What is copyright?
Copyright is a property right which insures that someone else will not take your artistic expression and claim it as their own.
What does copyright cover?
Copyright covers various forms of artistic expression. This does not mean that copyright will protect the idea for that artistic expression. Rather, copyright covers the actual expression of the work.
Artistic expression includes music (both composition and recordings), dramatic works (plays, dance, opera), visual arts (painting, sculpture, illustration), and film/TV. Of course, the most relevant category for writers is written expression, which is also covered by copyright.
How long does coverage last?
This is a tricky question because the law changes frequently. (The running legal joke is that length of copyright follows the “Mickey Mouse rule” in that coverage is extended continually so that the lovable cartoon mouse will always be copyrighted.) A more specific answer can be found in the FAQ section of the U.S. Copyright Office website.
How do you get a copyright?
The minute you write that last sentence and put down your pen, your work has gained certain rights under the copyright laws. This is why you don’t need to tell agents or editors that your work is copyrighted because they already know that. If you wrote it down, it’s already got some copyright coverage. Caveat: while ownership of the copyright is automatic, you may not be able to collect all the damages to which you’re entitled unless you register the copyright.
How do you register a copyright?
You can register with the U.S. Copyright Office. Registering preserves some rights that you might not otherwise get, such as the right to sue for statutory damages (a fixed amount per work) and attorney’s fees.
Does this mean that if you do all these steps and someone copies your work, the Copyright Police will go after them?
Sorry, but that’s not how it works. First of all, there isn’t really a copyright police (yes the FBI deals with copyright matters, but usually in the case of large scale criminal infringement) and the copyright office doesn’t enforce copyrights.
You’re probably wondering what the point of copyright is if it isn’t enforced. What copyright means is if someone copies your work, you can take them to court and sue for damages and/or get an injunction. (An injunction means that the offending party must stop doing what they are doing: i.e. stop copying or using your work without permission.)
Infringement, Fair Use and Derivative Works
As writers, we’re often inspired by work from artists who have come before us. One question that often comes up is whether we can use some piece of another artist’s work in our own work. The answer is: it’s complicated. There are three things you have to consider when using part of someone else’s work in your own. These things are: infringement, fair use and whether or not what you’re doing is considered a “derivative work.” Here’s a quick rundown of these technical terms.
Infringement is when you take someone else’s work or idea and use it as your own. Fan fiction would often be considered infringement because you’re taking characters that were created by another author. Sure, you can write it for fun in the privacy of your home, but you won’t be able to sell it. Note also that just changing a few small details is not enough to make a character or a story your own. There is an exception to infringement, though, and it’s called “fair use.”
Fair Use is what you use when you write an English paper and you need to use quotes in the paper. You’re not paying the author you’re quoting for the right to use his or her words, but because you’re only using a short snippet and you’re using it for academic purposes, it’s OK. Just make sure you attribute the quotes properly when you use them.
There is another case where fair use comes into play and that’s with humor. If you’re imitating an existing story or brand but are doing so as a parody, you may be able to claim “fair use.” One example is the imitation of McDonald’s brand in the movie Coming to America. The imitation restaurant is called McDowell’s and it serves Big Mics and Chicken Nukkets. In this case, the very similarities between the real and imitation brands is what’s being played for laughs.*
Derivative Works are any works derived from the original work. In other words, if you own an existing work, you also retain rights to follow-on works in both that medium and other media.
For instance, suppose you own the rights to a novel. You will also retain rights to sequel novels, plays, films scripts and films, audio books and translations of the original (provided you don’t give these rights away). This is one place where it can be invaluable to have an agent in your corner. Your agent will help you make smart negotiations and keep you from giving away all these rights when you sign a contract.
Licensing vs. Work for Hire
One legal distinction that is very important for writers to understand is the difference between licensing and work for hire.
Licensing is usually the scenario you find when you publish your work via the traditional route. You query an agent, the agent “sells” the book to a publisher, you sign an contract and sooner or later your book lands on store shelves. But the truth is, you’re not actually selling your book to the publisher; you’re granting the publisher certain specific rights, like the right to publish your book in North America, or the UK, or in digital form. In this case, it’s important to have an agent in your corner to help you negotiate the details of this licensing agreement. After all, you don’t want to sign away all the rights to your work. An agent will help you negotiate that all-important contract so you can rest easy.
Note also, that in the case of licensing, usually payment comes in the form of a royalty (a percentage per each book sold) so in order for the author to make money, the book has to sell. You hear sometimes of authors getting an “advance” but don’t be mistaken… an advance is not “free money.” The term is short for “advance against royalties” which means that the author is getting some portion of the royalty in advance of the books being sold. What this means is that in order for the author to receive any additional royalties, the publisher must first sell enough books to make back the advance given to the author (also called “earning out.”)
Another example of licensing is when you publish a short story in a literary magazine. Most of these magazines offer little or no payment, but they also ask for very little. Usually these magazines only ask for First North American Rights or First Digital Rights (for an online magazine). These rights allow the magazine to print the story first, but after that the rights go back to the author. This means that if you grant a literary magazine only First North American Rights or First Digital Rights, once that magazine has printed your story, you can resubmit it elsewhere or repurpose it. This happens often when authors publish short stories in magazines but later on will anthologize those stories in a collection.
Work for Hire is a scenario when a publisher or book packager hires a writer to produce a specific piece of writing. For instance, if a writer gets hired to ghostwrite a tell-all celebrity memoir, that would be considered work for hire. Or when a writer is assigned to write book #387 of The Babysitter’s Club that would also be work for hire. After all, the substance of the work (the ideas and information) would be provided to the author so the author’s primary function is to craft and write the piece. Another example of work for hire is when an author is a staff writer for a periodical. Unlike a freelance writer who produces work as an independent contractor the staff writer is an employee, paid a flat fee for the work. Since the writer is an employee, all the work product created by the author for that publication belongs to the publication. In other words, the copyright for the work does not belong to the author but to the publisher.
For more information, check out these links and resources:
- Volunteer Lawyers for the Arts: New York organization dedicated to helping artists with legal issues. The website has good resources even for those not in New York and there are similar organizations throughout the US. http://www.vlany.org/
- US Copyright Office: Federal agency tasked with registering US copyrights. Also good information about US copyright law. http://www.copyright.gov
- World Intellectual Property Association: UN agency tasked with developing a balanced and accessible international intellectual property system. It also administers several international treaties related to IP law. There is good information about IP laws in many countries here. http://www.wipo.int/portal/index.html.en
- Cornell Law School’s Copyright portal: more geared to legal questions, but has information accessible to a non-legal audience. http://www.law.cornell.edu/wex/copyright
- Creative Commons: an organization dedicated to promoting freely available “public domain” licenses. Wikipedia uses Creative Commons licenses. http://creativecommons.org/
- The Authors Registry: an organization that is a not-for-profit clearinghouse for payments to authors, receiving royalties from organizations and distributing them to U.S. authors. http://www.authorsregistry.org/index.htm
- The Authors Guild: A membership organization that advocates for author-friendly copyright policies and provides legal advice. http://www.authorsguild.org/