The Truth About Copyright and Creative Writing

Written by Emily Harstone

I am not a copyright lawyer. I would never claim to be. But I am a writer, a writer whose work has been published widely, so I have figured out a thing or two about how copyright does and does not work. This article focuses mainly on copyright in terms of literary journals, but it covers novels as well.

Before I wrote this article I spent time researching the subject.  There are links to my sources at the bottom of the article, if you want to delve more fully into the topic.

The main purpose of this article is to dispel two of the most powerful rumors and myths that swirl around author’s rights. The first myth involves how you protect the copyright in your work, the second involves how publishing interacts with that copyright.

How (not) to copyright your work

I have to address that little copyright symbol – Ⓒ.

A lot of writers, particularly new writers, believe they must put that symbol on their work with their name and sometimes a date. That is not how copyrighting works, because as a matter of fact your work is already protected by copyright upon creation of the work in virtually all countries, automatically.

If you are actually going to register the copyright in a written work, you have to do that through the U.S. Copyright Office, at copyright.gov. Note that outside the U.S., most countries do not have a copyright registry, or they do not encourage registration even if it is possible to do so. In the U.S., if you register your work – either in published or unpublished form – before it is misappropriated, you are entitled to recover statutory damages without proving actual damages, and also recover attorneys’ fees if you successfully litigate your copyright infringement claim. Often, the threat of these remedies is sufficient to curtail any unauthorized use of your work.

In my experience, even without registration, bringing the unauthorized use to the attention of the infringer will get the desired results. However, considering that the cost of registration for each work, if filed electronically in the name of an individual (not a company) is $45, it is “cheap and cheerful” insurance, in case you are one of the unlikely writers whose work product is stolen.

If you sign a contract with a publisher for your manuscript they will generally do this process for you on your behalf. It will be part of your contract with the company. Cases of infringement on rights, in terms of literary work are extremely rare. Individual poems or short stories are rarely registered with a copyright office.

In the United States and elsewhere almost all original work written privately (not on behalf of a company) automatically belongs to the author of that work, regardless of the presence of a Ⓒ symbol or not. Your publisher or other entity owns the work only if you assign the copyright in writing. Be careful, however, about extensive edits by a third party, as their contributions might make them a “joint author” under U.S. law, giving them the right to fully exploit the work without your permission, subject only to sharing the profits with you.

Now if you are posting something on Facebook it can be helpful to add that Ⓒ but it does not really serve a legal purpose, it is just a reminder to people who might not know.  Many people are unsophisticated, and assume – incorrectly – that anything posted online without a copyright notice is free for them to take for their own use. In your writing group when your handing out poems to workshop it is not needed, your name is sufficient.

More importantly when you are submitting to literary journals, anthologies, or manuscript publishers having that little Ⓒ on your documents can actually be a bad thing. It usually marks you as an amateur – as someone who doesn’t know about how real publication works. In my years working as an editor, I have only accepted one piece that had a Ⓒ on it.

In the decade my poetry and fiction have been published, much of it on the internet, I don’t know of any incidents of my work being stolen. Also, in my extended network of friends and acquaintances, most of them writers, some of them famous, I only know of one incident where one person’s fiction work was stolen — a situation they quickly were able to rectify based on their computer files, no Ⓒ was needed. However, instances of infringement are much more common with nonfiction work, and indeed my own columns and instructional writings have been used without my permission on multiple occasions (I was able to correct the situations when I located them).

Although formally registering your work with the U.S. Copyright Office has its benefits, it is inadvisable to expressly state in your query letter or submission that you have done so. But don’t take my word for it, here are literary agent Joyce Hollands thoughts on the matter:

“Never say you have copyrighted your book with the Library of Congress. Your book is copyrighted the moment you put the words on paper. To have it done officially, dates your material–forever. Let the publisher do that.”

Also, there is no reason to print the copyright notice on your submissions, and indeed, it is inadvisable to do so. A book with a copyright date of 2013, and submitted in 2016, speaks volumes to an editor or agent. It means it’s been shopped around, a lot!

On the other hand, merely depositing your work with the U.S. Copyright Office as an unpublished work does not create a disadvantage. First, it is unlikely that agents or publishers will conduct a search of the site, but even if they do, all they will know is that a manuscript (in whatever stage of revisions) existed at that time. It does not provide information as to whether the work has been submitted to others, or whether it has been sitting in a drawer (or on the computer) for years with no effort to market it.

As another option, you can register your work with the Writers’ Guild, East or West. For a small fee they will record the work, proving when you wrote it. Note, however, that this option does not provide the remedies set forth in the Copyright Act. And then, unless you are submitting to an entertainment agent or producer, keep your mouth shut. The use of a copyright symbol and WGA numbers suggest you don’t trust us.


How publishing your work interacts with your copyright

“When I submit my work to a publisher do I get to keep my copyright?” That it is the big question on most new authors’ minds, and I know this because of how many emails I have received about it.

No publisher can ever take your copyright away without you signing a contract, so when you submit you do not need to clarify the fact that it is copyrighted to you – they understand that already.

So what do most literary and journals want in terms of rights? All of the journals and anthologies I have ever worked with want either first North American Serial Rights, First Serial Rights, or Reprint Rights.

First North American Serial Rights, mean that the publisher has the right to publish your work for the first time in North America. Sometimes in the contract itself it will specify for how long the publisher continues to have those rights. It is never longer than a year, and often the rights return to you upon publication. First Serial Rights work similarly, there is just no geographical limits.

Reprint rights mean that your work has been published previously; the publisher is acknowledging that, and they are asking for the right to reprint your work.

Because most publishers want First Serial Rights, they expect you to have never published that work before. What does publication mean? For some journals it means any publication (including a personal blog or Facebook page), while for others it means just that you affirm that your work has never been published before in any printed form. Usually the publisher makes it clear what their preferences are in terms of this.

As far as book contracts go, it is always good to have an agent or a lawyer review them before signing, but most book contracts involve a time limit as well. Most are five years in length, before rights return to you, unless the contract is renewed.

Conclusion

Hopefully this article helps clarify any confusion you have regarding copyrighting. Also you might find the sources for this article helpful in answering any additional questions that you may have.

For assistance with this article, I conferred with Susan Douglass, a copyright lawyer in New York.

Sources for this article include 10 Big Myths about Copyrighting and Copyright information for Writers.


Emily Harstone is the author of many popular books, including The Authors Publish Guide to Manuscript SubmissionsSubmit, Publish, Repeat, and The 2020 Guide to Manuscript Publishers.

She regularly teaches three acclaimed courses on writing and publishing at The Writer’s Workshop at Authors Publish.You can follow her on Facebook here.

 

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