The SDWEG DOES NOT provide any legal advice and users of this web site should consult with their own lawyer for legal advice.
The authors of this post are NOT lawyers and all thoughts expressed should be considered as opinion. Please consult with an attorney should you have a legal question.
This blog started out to be quite simple. Define copyright, then tell you why should or shouldn’t copyright your work. Ha! That quickly turned out to be not so simple. Then, my wonderful partner Robyn started editing my first cut and threw the plagiarizing monkey wrench in it. So, please bear with us as we try to keep this as simple as we can yet help you to understand copyrighting your work.
To start with, we are not copyright attorneys and in fact have no legal experience. We have, however, done a lot of research on the internet and strongly encourage you to follow our footsteps to better understand what follows.
Our internet sources for what follows are: Wikipedia (https://en.wikipedia.org) and Plagiarism.org (https://www.plagiarism.org/)
One final note. Our research covers US law only so if you live or sell your books in other countries, the laws may be different.
Let’s start with what is a copyright? From there we’ll cover some of the elements of copywrite law, then talk about plagiarism and finally suggest what you should do and why.
What is a copyright?
Our friends at Wikipedia define copyright as follows:
Copyright is a type of intellectual property that gives its owner the exclusive right to make copies of a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.
In many jurisdictions, copyright law makes exceptions to these restrictions when the work is copied for the purpose of commentary or other related uses. United States copyright law does not cover names, titles, short phrases or listings (such as ingredients, recipes, labels, or formulas). However, there are protections available for those areas copyright does not cover, such as trademarks and patents.
What’s all that mean? First, the copyright protects the owner and gives them the exclusive right to make copies. That means only you, the copyright holder, can make copies. Anyone else who wants to copy your work needs your permission.
But your copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. Nor does it cover names, titles, short phrases or listings (such as ingredients, recipes, labels, or formulas).
What’s all that mean? Copyright is intended to protect the original owner’s expression of an idea in the form of a creative work, but not the idea itself. So, to start you’ll probably need some way to prove you’re the owner, which is where fixation comes in. But it also means only your story is protected.
So, if you write a story about CJ helping horses at a horse rescue ranch, like I did, your copywriting the story of someone named CJ helping horses at a specific horse rescue ranch. That does not mean that you own the rights to all stories with characters named CJ or about horse rescue ranches. We’ll talk more about this in a bit too.
Fixation means that a works should exist in some tangible, permanent media form before it will attract copyright protection. That is, what you’re copyrighting should be ‘fixed’ in the form of a permanent media. For most artistic works, such as a manuscript, song or photograph, the point at which the work is created is generally considered the point of fixation.
Some jurisdictions require "fixing" copyrighted works in a tangible form when works are shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders. These rights frequently include reproduction, control over derivative works, distribution, public performance, and moral rights such as attribution (Credit). (This will become clearer when we get to changes in the law)
What’s that mean? Simple, you need to have whatever you’re copyrighting defined in a media form that can be stored unchanged. This could be a written or digital final manuscript, a published story, typed or written song lyrics or a photograph. Put another way, your original work needs to be in fixed entity that defines what your copyrighting.
Copyright requires originality for several reasons. For one thing, it ensures that the work protected by copyright reflects the author’s personality and expression and that the effort the author expends in creating the work is substantial enough to justify legal protection. This also means that copyright protection is limited to each author’s expression, leaving non-original expressions and works free for others to use in the creation of new works: in this way, the originality requirement protects the creative and intellectual freedom of other creators.
Huh? Okay, let’s take an extreme example. Let’s say you write a story that ‘borrows’ big chunks from other stories, TV shows, movies, songs and anything else you can find. Or, worse yet, there is absolutely nothing original in your story. When you copyright your story, the only parts that will be covered by the copyright will be the original parts you created. In fact, for all the parts you ‘borrowed,’ you’ve certainly plagiarized the work of others and likely violated multiple copyrights. (We actually read a story that fell into this category.) (We’ll also get to plagiarism shortly.)
Copyrights can be granted by public law and are in that case considered "territorial rights". This means that copyrights granted by the law of a certain state, do not extend beyond the territory of that specific jurisdiction. Copyrights of this type vary by country; many countries, and sometimes a large group of countries, have made agreements with other countries on procedures applicable when works "cross" national borders or national rights are inconsistent. An example of such an agreement is the Berne Convention Implementation Act which provides a standard for those countries that comply with it.
Some countries require certain copyright formalities to establishing copyright, others recognize copyright in any completed work, without a formal registration.
The key here is to be aware that different countries have different copyright laws so, what may be covered by your US copyright may not be honored if your work sells in other countries.
Changes to US copyright laws
We’re only including this so you know how we got to where we are with US copyright law and you can understand some of our suggestions at the end.
Before 1989, United States law required the use of a copyright notice, consisting of the copyright symbol (©, the letter C inside a circle), the abbreviation "Copr.", or the word "Copyright", followed by the year of the first publication of the work and the name of the copyright holder. Several years may be noted if the work has gone through substantial revisions. The proper copyright notice for sound recordings of musical or other audio works is a sound recording copyright symbol (℗, the letter P inside a circle), which indicates a sound recording copyright, with the letter P indicating a "phonorecord".
In addition, the phrase All rights reserved was once required to assert copyright, but that phrase is now legally obsolete.
In 1989 the United States enacted the Berne Convention Implementation Act, amending the 1976 Copyright Act to conform to most of the provisions of the Berne Convention. As a result, the use of copyright notices has become optional to claim copyright, because the Berne Convention makes copyright automatic. However, the lack of notice of copyright using these marks may have consequences in terms of reduced damages in an infringement lawsuit – using notices of this form may reduce the likelihood of a defense of "innocent infringement" being successful.
But what is meant by the Berne Convention makes copyright automatic? This is where Fixation comes in. Since you need to know what’s being copyrighted, the standard interpretation is that as soon as whatever you’re copyrighting is defined in a media form that can’t be changed, it’s automatically copyrighted. To quote plagiarism.org: Almost all forms of expression fall under copyright protection as long as they are recorded in some way (such as a book or a computer file).
Which is the perfect lead into plagiarism!
What is Plagiarism?
According to plagiarism.org: “Plagiarism is the representation of another author's language, thoughts, ideas, or expressions as one's own original work. Plagiarism is considered academic dishonesty and a breach of journalistic ethics. It is subject to sanctions such as penalties, suspension, expulsion from school or work, substantial fines and even incarceration.”
According to the Merriam-Webster online dictionary, to "plagiarize" means:
- to steal and pass off (the ideas or words of another) as one's own
- to use (another's production) without crediting the source
- to commit literary theft
- to present as new and original an idea or product derived from an existing source.
In other words, plagiarism is an act of fraud. It involves both stealing someone else's work and lying about it afterward.
All of the following are considered plagiarism:
- turning in someone else's work as your own
- copying words or ideas from someone else without giving credit
- failing to put a quotation in quotation marks
- giving incorrect information about the source of a quotation
- changing words but copying the sentence structure of a source without giving credit
- copying so many words or ideas from a source that it makes up the majority of your work, whether you give credit or not (subject to "fair use" rules).
So, where are we going with all this? Hopefully by now you’ve realized that there is a fine line between what is copyright protected and what falls under plagiarism. Remember, copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. Nor does it cover names, titles, short phrases or listings.
So, what if someone only steals parts of your work, some unique words, phrases or ideas? While copyright clearly doesn’t cover these, plagiarism very well may. And plagiarism is suable as an act of fraud.
Before we wrap things up, we need to cover registering your copyright.
Registration establishes a claim to copyright with the Copyright Office. An application for copyright registration can be filed by the author or owner of an exclusive right in a work, the owner of all exclusive rights, or an agent on behalf of an author or owner. An application contains three essential elements: a completed application form, a nonrefundable filing fee, and a nonreturnable deposit— that is, a copy or copies of the work being registered and “deposited” with the Copyright Office.
A certificate of registration creates a public record of key facts relating to the authorship and ownership of the claimed work, including the title of the work, the author of the work, the name and address of the claimant or copyright owner, the year of creation, and information about whether the work is published, has been previously registered, or includes preexisting material.
You can submit an application online through www.copyright.gov or on a paper application. In addition to establishing a public record of a copyright claim, registration offers several other statutory advantages:
- before an infringement suit may be filed in court, registration (or refusal) is necessary for U.S. works.
- registration establishes prima facie evidence of the validity of the copyright and facts stated in the certificate when registration is made before or within five years of publication.
- when registration is made prior to infringement or within three months after publication of a work, a copyright owner is eligible for statutory damages, attorneys’ fees, and costs.
- registration permits a copyright owner to establish a record with the U.S. Customs and Border Protection (CBP)4 for protection against the importation of infringing copies.
Registration can be made at any time within the life of the copyright. If you register before publication, you do not have to re-register when the work is published, although you can register the published edition, if desired.
As soon as you finish your work in a fixed form, it is automatically copyrighted.
That’s great! Maybe. But, what should you do and why?
To start with, if someone steals your work it’s up to you, the copyright holder, to sue them. Even if you registered your copyright with the Library of Congress, they are not going to help you sue. However, if you don’t register your copyright, you can only sue for a cease and desist order and will not be eligible for statutory damages, attorneys’ fees, and costs.
So, what should you do? That depends on how worried you are about having your work stolen.
Our recommendation is:
Place a copyright notice in your work consisting of: Copyright © (year) by (your name).
Why? This way, no one can claim they didn’t know your work was copyrighted. (Believe us, it happens! There is no intelligence test required for book thieves but they are good at playing dumb)
Don’t forget to add a notice for other copyrighted items used in your book. For example, the lyrics to my wedding song in book two of my trilogy holds a separate copyright, which is also listed on my copyright page.
If you really think you’ve got a best seller that someone might want to steal, register your copyright. Remember, you can always register your copyright at a later date; like after your second million copies sell. Seriously, registering your copyright is less than $50 so if you’re really concerned and want peace of mind, register it. (The $50 doesn’t count fixed copy and mail costs.)
When should you register your copyright? When you’re finished making major changes, typically when it’s done being edited. Minor changes such as corrections and small story enhancements will not negate your copyright, as long as they don’t substantially change your work. Also remember, for major changes you can always update your copyright, such as after your work is published or for a new edition.
Some Final Comments
The chances of having your work stolen are slim. Even slimmer are the chances of you finding out about it. However, if the old adage “better safe than sorry” ever applied, this is it. So, do whatever makes you feel like your work is protected.
We often hear concerns about editors stealing an author’s work. If your concerned, copyright and register your draft before you send it off for edit. Remember you can always update your copyright. If you’re still worried, ask your editor to sign a Non-Disclosure Agreement.
Happy writing and copyrighting everyone!
Have we missed anything? Let us know.
Bob Boze and Robyn Bennett