By Susan Upton Douglass
Copyright law in the U.S. is governed by federal statute; there is no “common law” copyright. Copyright protects original (i.e., not copied from someone else) authorship in text, including compilations of text (selecting and arranging pre-existing text if you have permission to use it), photographs, illustrations and other creative expression. It does not protect ideas.
This means, for example, that the story of Pygmalion can be told in countless ways because the idea of human transformation cannot be protected or “owned” by any one person. Thus there are many books with the same title but with different stories (titles cannot be protected by copyright), and also adaptations such as the film My Fair Lady. This is called the idea/expression dichotomy.
Copyright protection attaches automatically upon creation. This is due to a change in the law that became effective as of January 1, 1978. Even then, it was necessary to always use a copyright notice and observe other formalities or the copyright would be lost. This part of the law changed as of March 1, 1989, and now it is no longer necessary to use a copyright notice or register a work to preserve the copyright.
Copyright law gives authors the following exclusive rights; these rights are lost only if they are specifically assigned to someone else in writing:
- The right to make reproductions (copies) of the work;
- The right to create derivative works of the original work (e.g., adaptations, sequels, screenplays, translations, etc.);
- The right to distribute copies of the work;
- The right to perform the work publicly (at readings, or in other formats);
- The right to display the work publicly.
However, there are common-sense exceptions to these exclusive rights. For example, if someone buys a children’s book, it is assumed that the owner of the book may read it aloud at a gathering of children. This is distinguished from someone creating and selling an audiobook version of the book that one owns.
When writing a story and using third-party text, photos or other copyrightable authorship, be sure to obtain written permission from the copyright owner. There is an exception for using a very small portion of a copyrighted work – perhaps a few words or a line or two, simply to give an idea of the context. There are exceptions for “fair use” which includes satire or “transformational” use, but this is a complicated topic and the subject of substantial litigation.
SOME POPULAR MISCONCEPTIONS
1. Any work that is on the Internet is in the “public domain” and is free for anyone to use.
This is simply wrong. There are millions of books in bookstores and libraries, but they are not “public domain.” As noted above, all works of original authorship are protected, regardless of the medium in which they appear.
2. If you change “four things” (or substitute this with “10%” or whatever else you have heard) of material you take from others, it won’t be copyright infringement.
There is no bright-line rule for avoiding a claim of infringement. Here is one helpful way of considering the issue: if you think of yourself as the author of the part you plan to appropriate, consider whether you would be annoyed.
In a Supreme Court case from 1985 concerning Gerald Ford’s memoir, A Time to Heal, the court held that the publication by The Nation magazine of 300-400 words of verbatim quotes from the 500-page book constituted copyright infringement (Harper & Row v. The Nation, 741 U.S. 539 (1985)).
3. You can protect your copyright by mailing your work to yourself in a sealed envelope.
This gives you unopened mail in a safe place, but no cognizable rights under the copyright law. Of course, the stamped envelope will establish a date at which the specific version of the manuscript was in existence, but so would the “date stamp” in your computer.
4. You can avoid a claim of copyright infringement by giving credit to the source of the materials.
This also is false. You can avoid a claim of plagiarism, but not a claim of copyright infringement, by giving credit. Please refer to the exclusive rights of an author set forth above; the author has the right to make derivative works, and to control publication and distribution.
REGISTRATION AND USE OF A COPYRIGHT NOTICE ON YOUR MANUSCRIPT
A proper copyright notice comprises the following elements: © [year of first publication] [name of author, or any abbreviated form or nickname]. If the work is not yet published, there is no provision for a notice – but in theory you could use the notice with the year date of completion of the latest version of the work.
There are good arguments for not using a copyright notice for an unpublished work that is being submitted to a potential agent or publisher, namely, that it “dates” the work and may give the appearance that the work has been shopped around for a while without success. Also, it may send a mixed message: on the one hand, it shows a level of knowledge about copyright, but on the other hand, it may evidence a level of distrust. All things considered, including the fact that the Copyright Act does not expressly provide for the use of a notice for unpublished works, it may be best to not use a notice.
Registration of a copyrighted work is permissive under the Copyright Act. There are benefits to doing so:
– It provides presumptive evidence of the facts stated in the application for registration, including the year of creation and the authorship, along with the specific work in existence at that time;
– A copyright registration is a prerequisite for filing an infringement action (not usually done, particularly for new authors);
– A copyright registration, if filed prior to an act of infringement, allows the copyright owner to recover statutory damages and attorneys’ fees, remedies not otherwise available. Just having the registration and advising the infringer of these remedies often results in a quick and favorable settlement.
The cost of a filing to register a single work with the Copyright Office listing a single author and claimant is currently $45 – a very inexpensive and simple way of gaining “insurance” against the unlikely event of infringement.
Concerns have been raised that filing a copyright application “dates” a work forever, and may deter an agent or publisher from handling the work on the basis that it has been shopped around for too long. This may be a false assumption for two reasons. First, this assumes that an agent or publisher will take the time and trouble to make a search of the Copyright Office records – usually an annoying experience. Second, even if the agent or publisher locates the record, all this says is that a particular version of the work was deposited in unpublished form on a certain date. As everyone knows, literary works are frequently revised over the course of time. Moreover, these works are often put away for a period of time, and perhaps were never sent out previously. Therefore, these speculative concerns would not, in my view, be sufficient to advise against filing an application to register the work with the Copyright Office.
CONTRACUTAL CONSIDERATIONS
Do not assign your copyright in your work, unless you are desperate to use a specific publisher and the publisher insists on assignment. Most reputable publishers will not require that you assign your copyright. If you do so, make sure that you retain reversionary rights at no additional charge to you, and specify the period of time or circumstances when all will revert to the author – e.g., if the publisher has not published the work within a specified period of time, or has not achieved a certain level of distribution. Note that foreign rights are typically separate from North American rights.
There has been some litigation concerning whether the rights in a “derivative work” created when a publisher or editor revises your work vest in the editor, either exclusively or as the author of a derivative work. Be sure that your contract specifies that you, as the author, will be the exclusive owner of all rights in the derivative work. That way, if you want to change publishers or self-publish, there will be no issue of a third party making a claim to any element of the work.
ABOUT THE AUTHOR:
Susan Upton Douglass was a partner with the New York City law firm Fross Zelnick Lehrman & Zissu, where she specialized in copyright, trademark and unfair competition law since 1982. Susan can be reached by e-mail at susanudouglass@gmail.com.
© 2021 Susan Upton Douglass
