Copyright questions come up frequently among new writers, and what surprises me is the degree of misunderstanding about copyright.
Granted, one look at the copyright law is enough to scare away all but the most stalwart of individuals, but the core principles of copyrights from a writer’s perspective are straightforward and easy to understand. In this post and next week’s, I will deal with three questions.
–What is a copyright and how do you get one?
–What exactly does a copyright cover?
–Should a writer worry that someone will steal work posted on a critique site?
DISCLAIMER: Nothing in this blog post should be taken as legal advice.
A couple of years ago, I did a post on copyrights and permissions to discuss and what you can and cannot use of other people’s works in your writing. Here’s the link to that post:
That post did not cover the basics of copyright as they apply to an author’s work, and that’s what I’m going to do discuss.
For those interested, the complete copyright law (many, many pages) and a short version (12 pages) can be found at the links below. I recommend at least browsing the second one.
WHAT IS A COPYRIGHT?
I suspect that most writers are unaware of the origin of copyright, in the US at least. The US Constitution granted Congress the power to establish copyrights and patents in Article I, Section 8:
The Congress shall have Power… To promote the Progress of Science and useful Arts, by securing for limited Tımes to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The latest copyright law in the US was drafted in 1976, and it has been amended many times since to cover new situations and new technologies.
The owner of a copyright has the exclusive right to reproduce, distribute, perform, display, license, and to prepare derivative works based on the copyrighted work. A “derivative work” can also be viewed as an adaptation to other forms or media. For example, if the original is a novel, a screenplay based on that novel is a derivative work.
The exclusive rights of the copyright owner are subject to limitation by the doctrine of “fair use.” This means that certain uses of the copyrighted work do not constitute copyright infringement (violation of the copyright owner’s rights). Fair use includes purposes such as criticism, comment, news reporting, teaching, scholarship, or research. To determine whether or not a particular use qualifies as fair use, courts use the following factors:
(1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
(2) The nature of the copyrighted work
(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole
(4) The effect of the use upon the potential market for, or value of, the copyrighted work
Item #3 is what restricts writers from using song lyrics or part of a poem in a novel or story without permission. Because these works are short, even a line or two represents a significant portion of the entire work.
There is no clear line between what and how much constitutes fair use and what is infringement. This is where the courts come in, but over the years they have established some standards. Principle #4 provides one good piece of guidance: If you will profit from the use of copyrighted material, you need to get permission.
Citing the source of the copyrighted material in your novel does not constitute fair use or remove the obligation to get permission. I discussed this in my previous blog referenced above.
HOW DO YOU GET A COPYRIGHT AND WHAT DOES IT COVER?
The copyright law says that–
A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.
Note the second half of the paragraph. This clearly says that you are protected right from the time you begin the work, and all your various versions and drafts created along the way are protected as well and as separate works, not as part of the same one. This is also what protects various editions of the same work.
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
That tells us not only what types of things are covered by copyright, but under what circumstances. Again, once you set your work down on paper or in a computer or in any other fixed form that can be transferred (such as a recording device, flash drive, etc.), it’s protected by copyright.
Here’s an expansion of the “literary works” category from the copyright law:
Literary Works include a wide variety of works: fiction, nonfiction, poetry, textbooks, reference works, directories, catalogs, advertising copy, compilations of information, computer programs and databases. Note: This category also includes an article published in a serial, but not an entire serial issue. Electronic registration is not currently available for serial issues.
Even though not specifically mentioned, blogs and the content of your website all fall under this because they are creative expressions and original works.
Thus, my blogs are protected by copyright, but under the principle of fair use, others can quote from them (as long as they credit me). What they cannot do is post them as their own and they cannot repost the whole without my permission, although I really don’t object to quoting even substantial portions as long as they do credit me. But under copyright law, they’re obligated to ask me for permission if they’re going to use more than a small percentage and for ANY use where they might derive profit from my work.
This is one topic I’m not going to cover other than to say that registration is simply a formal way to establish your copyright, and that doing so is necessary before you can take legal action against copyright infringement. Nevertheless, you’re still fully protected by copyright.
It’s worth noting that someone posts your work on the Internet without your permission and isn’t responsive to removing it, then you have recourse in the Digital Millennium Copyright Act (DMCA).
Those interested can read more about it, and how it has been abused, here:
Next time, I’ll cover what copyright doesn’t protect and concerns about theft of your work.