Copyright And The Independent Writer
by Alex Cabal
An important note: This article is about US copyright law only. Copyright law varies from country to country. We’re not lawyers and this article is not legal advice; this article is a lay person’s attempt at synthesizing information from various official sources online. If you have a specific question or concern, you should contact an intellectual property attorney.
Over the many years that I’ve been running Scribophile, I’ve seen a lot of speculation, musing, myth, information, and misinformation about copyright. While copyright is a surprisingly complex issue, the simple reality for most writers composing entirely original work is that copyright is one of the very last things they should be concerned about—lower than whether to keep or remove that comma, lower than whether to use Word or Scrivener, even lower than whether or not you should have another coffee before finishing the paragraph. For the rest of us who are thinking of using an excerpt of something like another written work or a song, it’s also a simple matter.
The Executive Summary for Busy Writers
If you’re in a hurry you can read these lines, close your browser, and get on with your life:
You should not concern yourself with how your own writing is protected by copyright.
If you’re using an excerpt from a work created by someone else in your own writing—even just a sentence—and you’re not writing commentary, criticism, a news report, a scholarly report, or a parody, and the work is not in the public domain, then you must get permission from the author or rightsholder first.
Maybe that’s not what you were expecting to hear, but it’s that simple. Read on for why.
Plagiarism, the Fear of the Newbie Writer
The mark of a greenhorn writer is their uncontrollable fear that their writing is going to be plagiarised. They stay up at night fretting that they didn’t write the right magic incantation in their copyright notice to protect their work from evil plagiarisers. They worry that someone is going to lift their life’s work wholesale, sell it to an eager publisher, and make a million bucks while the writer dies starving in a gutter. They include a large and ominous copyright notice on every manuscript they send to a publisher—who, in turn, chuckles to herself before tossing it into the slush pile. Fantasies of Law & Order-style courtroom copyright depositions dance in their heads, and they’re so paralyzed by their fear that their writing never sees the light of day.
Don’t be that writer! It’s embarrasing for everyone.
Plagiarism exists, but the reality is that it happens with such extraordinary rarity that you’re better off worrying about whether you’ll be struck by lightning tomorrow. Look at it from a purely practical perspective: Getting published is so hard and so financially unrewarding for the effort involved that there’s almost no incentive for someone to steal your writing and try to get it published themselves. Why would someone go through the effort? The reward just isn’t there.
Maybe you’re worried that by sending your manuscript to a publisher, they’ll love it so much that they’ll put someone else’s name on it so that they don’t have to pay you. Well, the publishing industry is pretty small and doing that would immediately get the publisher blackballed. Any publisher who isn’t blackballed would be so small that they probably aren’t making a dime anyway. Plus, publishers know that a successful manuscript means successful sequels—and they can’t get that if they screw the writer from the beginning.
Plagiarism is a worry that doesn’t exist in the mind of the professional writer, and if it’s something that’s keeping you awake at night, you can rest easy.
But copyright still exists. It protects your work from being copied or excerpted without your permission. And the best part is, it’s automatic and free!
Do I Have to Register a Copyright?
What follows is probably the most important paragraph in this entire article:
Since 1989, the author of a work is automatically granted a copyright to that work. You don’t have to include a notice, you don’t have to send paperwork to some government office, you don’t even have to be published by a major publisher. The act of finishing a work automatically grants you a copyright.
Pretty great, right?
Well, it’s not quite that easy. If you ever want to bring a lawsuit, it turns out that you’re required to have registered your work with the US copyright office first. This is a separate concept than simply being granted a copyright (which your work is given automatically by virtue of merely existing). Registering your work alerts the government that you claim authorship of a certain work on a certain day.
Furthermore, if filing a lawsuit is something you can imagine yourself doing (we’ll talk about that later), then it’s recommended that you include a copyright notice in your work. This prevents the infringer from claiming in court that they didn’t know the work was copyrighted.
The ultimate question is: Should you register your copyright with the copyright office? The practical answer is: Only if you have the resources, the time, and the willingness to file and pursue a copyright lawsuit. If you can’t picture yourself in a courtroom, then registering your copyright (and even including a copyright notice!) has no practical advantage for you. Your work is automatically protected no matter what you do, and if you’re not going to be suing anyone, that’s the best you can ask for.
The Myth of the “Poor Man’s Copyright”
Long ago, a myth started floating around about something called “Poor Man’s Copyright”. The idea was that registering a copyright with the right government office was expensive and time consuming. A faster, cheaper way—the poor man’s way—was to seal a copy of your work in an envelope and then mail it to yourself. Should you find yourself in the position of having to defend your copyright, you could produce the unopened envelope, complete with the date on the official postage stamp, as proof that you created the work when you claim you did. The modern version has something to do with email instead of paper mail.
I can picture it now: A writer stands behind the table in a courtroom. The infringer sits in the witness stand, a sheen of sweat on his brow, scratching nervously at his ill-fitting shirt. A be-wigged judge glowers over the proceedings. Now is the time for the coup de grâce! The writer opens her briefcase and lifts out a worn, yellowed envelope. With slow and deliberate relish, the writer draws a fingernail under the moldering seal, puffs the envelope open with a quivering breath, and withdraws a copy, perfectly reproduced, of the work that the infringer duplicated! The court gasps, the judge bangs his gavel frantically, and the infringer faints in his chair—the poor man’s copyright has assured the writer’s victory!
Did that little drama make you giggle a little? Because giggling is what the judge will do if you produce a poor man’s copyright in an actual court of law. Even Judge Judy would laugh you out of the courtroom. If you’re serious about bringing a copyright case to court, correct registration with the copyright office is your only option. In fact, a correctly registered copyright is a required prerequisite to even filing a lawsuit. A poor man’s copyright is only good if you want to get a chuckle out of the infringer.
Practical Copyright for the Independent Writer
So you’re automatically granted a copyright when you finish a work. But the practical reality of enforcing that copyright depends on your resources as an independent writer and the complexities and vagaries of the US legal system. What you’re about to read might disappoint you a little, because it turns out that cash-strapped independent writers have little practical recourse.
Let’s say that you’ve written a book, included a copyright notice, self-published on Amazon, and now you see someone has included an excerpt in their own work without asking. You’re hopping mad! What are your options?
Contact the infringer and ask them nicely to remove your excerpt or somehow compensate you for its use.
Contact the service hosting the infringing work and ask them nicely to take it down.
SUE! SUE! SUE!
Option 1 is probably where you’ll start. If it works, great! Problem solved. But success is not guaranteed. You might be ignored, or the infringer might just not want to deal with you. You’ve emailed them eight times and they just haven’t replied.
Option 2 is where you’ll go next. If you can’t reason with the infringer, maybe you can reason with their distributor. But the Amazon Kindle Marketplace support queue is long, and their underpaid workers aren’t legal eagles. They don’t care about which small-time writer copied which other small-time writer. What now?
Your only other option is to bring a lawsuit. Make the law work for you and force the infringer to compensate you. But did you register your copyright at the copyright office? Because if you didn’t, it’s game over! You cannot file a lawsuit if you haven’t registered.
Let’s pretend you did register, and you’re ready to see the evil infringer in court. Well, lawsuits in America aren’t cheap and they aren’t fast. You’re looking at spending thousands of dollars—to start!—in hiring a lawyer, filling out paperwork, and going through the courtroom motions. If you win you have to enforce the verdict, which costs more time and money. On the anonymous internet a small-time infringer can just pack up their bags and disappear, leaving you holding the bill for your legal fees. Is that worth it to you? Is that something you have the resources for? Because that’s the practical end game for copyright infringement.
The hard reality for the independent writer is that effectively enforcing your copyright with an iron fist is an expensive, time-consuming, and frustrating process. It’s so difficult to win against a determined infringer that it’s something you shouldn’t even be worrying about. Spend your time worrying about your plot and your characters, not navigating a treacherous and complex legal system to try to prevent a problem that doesn’t affect 99% of writers.
Practical Copyright for the Big 5 Writer
Let’s say you won the writing lottery and your book was picked up and published by a Big 5 publisher like Random House. It sells well, and then one day you see an unauthorized excerpt appear in someone else’s writing.
Good news! In this case, you have the full power of a corporate legal team at your back. Copyright becomes enforceable again! In this scenario, you don’t have to sweat it, because highly-paid men and women in well-tailored suits carrying shiny briefcases are there to fight for your rights. Defending your copyright is no longer your concern, but your rich publisher’s concern. You can effectively put it out of your mind.
Does that seem unfair? If you ask me, it does. But that’s the practical reality of the world we live in.
Using Copyrighted Material in Your Own Work
Writers sometimes agonize over this one. What if I just include a single sentence? What about song lyrics? What about poetry? Where do I draw the line?
It turns out this situation is pretty simple too. Unless you’re writing commentary, criticism, a news report, a scholarly report, or a parody, you must get permission from the rightsholder to include anything, even just sentence, in your own work. It’s that easy. If you’re not sure, then get permission.
Some very old work is considered “public domain”. Public domain work is work whose copyright has expired, and thus can be used by anybody without permission. But deciding if a work is in the public domain is tricky. Thanks to lobbying efforts from corporations like Disney, most work produced in the US after 1923 will not enter the public domain in your lifetime. A good rule of thumb for written work is that if you can’t find it at Project Gutenberg, then it’s not public domain. (That’s not an exhaustive rule, just a rule of thumb. If you’re not sure, play it safe.)
Does that seem harsh? Those same harsh rules are what protect your own work, too.
Using Settings and Characters From Other Work In Your Own
Copyright also protects more intangible things about a work, like characters. For example, you might be surprised to learn that something like a Star Wars fan fiction piece written without the permission of George Lucas is illegal. That’s because a work using those characters would be called a “derivative work”—and derivative works are protected by the original author’s copyright. Fortunately for most fan fiction writers, rightsholders have better things to do than sue their fans for having a little fun. (Though the rightsholders would arguably win if they changed their minds and started suing.)
The exception is, as mentioned before, criticism and parody—making fun of established characters or settings. But if you’re not sure if your work is a parody, don’t try to get away on a technicality. If you’re brought in to court, the court will decide whether or not your case is fair use based on what they think the facts are. Trying to win on a technicality probably won’t convince the judge.
Does that mean that you can’t even say the name “Darth Vader” in your own work? Well, that’s where it gets fuzzy. There’s no hard and fast rules as to what constitutes fair use or derivative works. Verdicts are decided on a case-by-case basis. It’ll depend on how you present your argument and the facts in court.
Putting It All Together
The picture I’m painting might seem a little cynical, but it’s a very practical view of today’s legal realities in the US. You’re automatically granted copyright by virtue of completing a work, but enforcing your copyright is limited by the financial and practical realities of the US legal system. Authors signed with big publishers have the publisher’s legal team to advise them and thus needn’t concern themselves. Putting all of this together, copyright for your own work is something that should not overly concern you regardless of your experience as a writer.
Registering your copyright is not required if you can’t picture yourself filing a lawsuit. Copyright is automatically granted to the author of a finished work. Because of this, a copyright notice is technically optional. Go ahead and include one if it makes you feel warm and fuzzy, it can’t hurt.
If you can see yourself financing and filing a lawsuit, registering your copyright at the copyright office is a requirement, and including a copyright notice in your work is recommended. Poor Man’s Copyright is a myth.
If you plan on using any excerpt from a copyrighted work in your own writing, you must get permission from the rightsholder. The exceptions are if you’re writing commentary, criticism, a news report, a scholarly report, or a parody, or if the work you’re excerpting is in the public domain.
Getting Your Own Counsel
This information was compiled from various sources online. I’m not a lawyer, so if you’ve found yourself in a serious copyright situation, you should consult a legal professional instead of believing everything you read on the internet. This information only applies to US copyright.
Copyright basics (PDF) at the US Copyright Office
Can I Use Someone Else’s Work? Can Someone Else Use Mine? at the US Copyright Office
Fair Use FAQ at the EFF
When US Work Passes in to the Public Domain at UNC via Pike County Geneology
Registering a Copyright at the US Copyright Office