From Rick:

Recently, my local writers group had a presentation from a lawyer on intellectual property rights focusing on copyrights and permissions.

Of course, the presenter’s first words were, as you might expect, a disclaimer that anything in the presentation was not to be taken as legal advice (even though it’s advice and he’s a lawyer).

Here’s what Wikipedia says about that: “Legal advice is the giving of a professional or formal opinion regarding the substance or procedure of the law in relation to a particular factual situation. The provision of legal advice will often involve analyzing a set of facts and advising a person to take a specific course of action based on the applicable law.”

and

“Legal advice is distinguished from legal information which is the reiteration of legal fact. Legal information can be conveyed by a parking meter, sign or by other forms of notice such as a warning by a law enforcement officer.”

The reasons for the presenter’s disclaimer should be somewhat obvious. His advice in the presentation applies to general situations, not to specific cases where he hasn’t thoroughly investigated all aspects. Nevertheless, while not legal advice, it’s certainly legal information and carries weight from a legal perspective.

Likewise: Nothing in this post should be taken as legal advice (because I’m not a lawyer, nor do I pretend to be one). All information comes from my own research and careful reading and is what I consider good advice to keep you out of trouble (mostly) when it comes to copyrights and permissions in regard to your writing.

Also, very little of information in this post comes from the lawyer’s presentation. He pointed out that his slides, which he provided us with copies of, are protected under copyright.

Before I get into the heart of this post, keep in mind that all of your own writing, be it short stories, novels, or even your blog posts (like this one) are protected under copyright and cannot be copied and disseminated by others in any way without your permission.

The lawyer also pointed out that, while placing a notice of copyright is not required, it’s a good idea to be sure that such a notice appears on any and all of your work (including your blog). I realized that this blog contained one, but my website and the Fabula Argentea site did not. They do now.

He further suggested that whenever you sit down to write something creative, the FIRST thing you should type is a copyright notice. This lets anyone viewing it know that you do claim the rights to it and that it cannot be used without your express permission.

INTELLECTUAL PROPERTY: We’ve all heard the term “intellectual property” tossed around, but what is it exactly?

In simplest terms, intellectual property refers to creations of the mind: written works, artistic works, and inventions. More specifically, it covers pretty much anything original that we create. This includes short stories, novels, poems, essays, nonfiction, educational materials, music (including any lyrics), plays, films, broadcasts, inventions, processes, photographs, drawings, paintings, sculptures, architectural designs, other designs (like logos), and some other things. Most of these can be protected by law either with copyrights or trademarks or patents.

Why is intellectual property so important? It’s because our ideas, as creations, may have value, and without legal protection for those creations, anyone could steal our ideas and profit from them.

In addition to copyrights, trademarks, and patents, there are a couple of other aspects to intellectual property, namely moral rights and trade secrets, that do not fall under the other three protections.

MORAL RIGHTS: “Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. They include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work.” (from Wikipedia) If interested, you can read more at the following link:

WHAT ARE MORAL RIGHTS?

TRADE SECRETS: Essentially, trade secrets are inventions or processes that don’t fulfill the criteria for being patentable. Trade secrets generally don’t affect us as writers, but here’s a reference that explains the concept better.

WHAT ARE TRADE SECRETS?

The WIPO site also contains some useful information on intellectual property in general, if you’re interested.

Let’s focus now on the aspects of intellectual property that concern us as writers. The most obvious is copyright, but we do have to be aware of any trademarks that we mention in our writing to avoid problems with the owners of those trademarks.

I’ve dealt with copyrights on several prior occasions in this blog, and in fact did one a month ago:

COPYRIGHT AND INTELLECTUAL PROPERTY LEGALITIES FOR AUTHORS

Why another post? Well, that one left you with a lot of material to read and not so much substance directly in the actual post. I wanted to add some information and give you some simple rules to follow in case you didn’t feel like doing all that reading (which I kind of suspect not many did).

Here’s the short form for the rules that apply to using written material, including artwork, photographs, and music in your own work.

These apply to written work as well as photographs, reproductions of copyrighted work, and ANYTHING you find on the Internet. In these rules “use” means to put on display or use for anyone other than yourself.

RULE #1: If you didn’t create it, then you need permission from the license holder/rights holder—who may or may not be the same as copyright holder.

RULE #2: If you did create it but don’t hold the rights to it (e.g. a publisher currently has some or all of the rights), then you need permission from the license holder/rights holder.

RULE #3: Photographs of works that are protected by copyright (paintings, sculptures, etc.) cannot be used without permission, except for private use.

The WIPO site says that “in most countries, you are allowed to take photos without authorization, if you use them purely for private purposes. For example, taking a photo of a painting to post on your home refrigerator will generally not constitute copyright infringement.” Otherwise you would need permission from the copyright owner.

NOTE: As I understand it, you cannot get into trouble for posting a link to someone else’s work. You just cannot copy the work into your own work.

What does constitute permission to use copyrighted works? Permission can be secured in one of three ways:

(1) If the work is in the public domain or is not subject to copyright protection, that constitutes one form of permission.

However, as the lawyer pointed out during his presentation, while the work itself may be in the public domain (e.g. the Mona Lisa painting), a photograph of the work taken by someone else is copyright protected. In other words, you can photograph the Mona Lisa and use that photo, but you need permission to use someone else’s photo. In any case, you should always verify the status of the original work no matter who took the picture.

(2) Direct permission from the license holder and possibly from the copyright holder as well (if they are not the same).

(3) The copyright holder has granted use via a Creative Commons license, which may grant unlimited use or may have certain restrictions.

An exception to requiring permission occurs under what is termed fair use in the US Copyright Act. Fair use is a tricky area. Its primary purpose is to allow the use of copyrighted works for the public interest without such use being considered as copyright infringement. Purposes permitting the application of fair use generally include review, news reporting, teaching, or scholarly research.

Fair use is not the same as permission. It merely allows the use (usually only partial use) of the material in certain limited cases. In legal matters, fair use is decided on a case by case basis, but as long as you stick to the intended principles, you should have not any problems. As soon as you enter the commercial realm of profit, potential profit, or the promotion of your or some else’s work, fair use can rarely be used as a defense against not obtaining permission.

IMPORTANT NOTES:

(1) The inability to verify whether a work is under copyright protection or the inability to locate or contact the rights holder does not absolve you of the requirement of obtaining permission.

(2) Acknowledging a copyright or citing the right holder’s name is never a substitute for obtaining permission.

Here’s a very useful link for determining if and how you can legally use copyrighted images:

INFOGRAPHIC: HOW TO LEGALLY USE COPYRIGHTED IMAGES

In regard to your own work, as soon as you create an original work (novel, poem, short story, song, artwork, photograph, video, etc.) in fixed form (which includes digital form), it is subject to copyright protection, regardless of whether you register the work, but your legal rights are limited if you do not register the work. The work does not have to be complete for copyright to apply, but it’s recommended that you not register the work until it is complete.

One of the questions that came up was how to avoid litigation. The simple answer is that you can’t avoid litigation. Any copyright holder who believes you have infringed on his or her copyright can sue you. Who wins is another matter entirely.

Even if you believe your use is fair use, you’d better make absolutely certain that it is. Either get permission, or don’t use the material.

Between this post and my most recent one, I think I’ve pretty well beat up this topic, but here are the key points you need to remember:

(1) If it’s not yours, you need permission to use it.

(2) Writing for potential profit isn’t the same as writing a paper in school, where fair use applies as long as your paper doesn’t go beyond its intended use in class—and this means that if you post your A+ paper on your blog, it’s likely no longer protected under fair use.

(3) Much of what’s on the Internet is protected by copyright. Don’t assume it’s in the public domain unless you can verify that it is or that whoever created it specifically releases it to the public domain.

(4) If you’re looking for an excuse to avoid having to get permission (or a reason to not have to research whether you need permission), then you’re asking for trouble.

(5) “I didn’t know I needed permission to use that in my book” won’t help if you get sued.

The topic of copyrights and permissions and intellectual property is such a vast one that I know there are a million things I haven’t covered (to coin the well-known phrase from the musical Hamilton). And in saying that, had I used the actual quote from the musical, could I get into trouble for using it, even if I cited where it came from? Possibly, but I suspect I’d be okay here because even though it’s such a well-known quote, and I’m not trying to profit from it in any way (I don’t make money from my blog). I don’t think it could fall under fair use, but at the same time, the phrase itself is not a unique one like “may the force be with you” was.

On the other hand, since there are so many promotional items out there (coffee mugs, T-shirts, posters, keychains), if I tried to promote my blog in some way by using that quote, I’d at least risk getting my hands slapped and told to take it down. And if I made up coffee mugs and sold them to promote my blog… There I might run into trouble.

Now, if that were the title of one of the songs from the musical, since titles cannot be copyrighted (and often cannot be trademarked), I wouldn’t worry about using it even as the title of a book (particularly if the book made no attempt to mention or capitalize on the success of the musical. That’s not saying I couldn’t be sued, but I suspect I’d be okay. Still, why would I risk it? If I really wanted to use the line, I’d get permission in writing or a release from the license holder saying it’s okay to use it. Otherwise, you’re putting yourself at the mercy of the lawyers and the judge ruling on the case, and financially it would almost certainly be a disaster for you.

Therefore, be smart and don’t tempt fate. When it comes to copyright litigation, it’s rarely possible to predict the outcome with any certainty. Most of the time when writers get into trouble, they’re deliberately trying to profit from someone else’s idea.

–Rick