Copyright is one of those things that sounds simple but turns out to be confusing and complex once you start looking at it. Confusing or not, authors need to have a passing familiarity with the basic concepts. So, here goes. For legal advice, consult an attorney, not this blog. My intent here is to summarize copyright and how it relates to publishing fiction, at least as I understand it.
What is a copyright, anyway? The law grants authors a bundle of rights, known collectively as the “copyright,” to their work. These rights include, for example,
- Reproduction rights;
- The right to prepare derivative works;
- The right to distribute the work to the public;
- The right to perform or display the work in public.
How complicated is it to copyright my work? It’s way simple. As soon as you’ve written down a complete, original work, it’s copyrighted. You don’t have to do anything else. According to the current law, a copyright exists as soon as an original work is fixed, either in paper or an electronic medium. Sorry, but “fixed” in your imagination doesn’t count: it has to be fixed in a way that it can be distributed to the public, i.e., a tangible medium. If you tell your story or sing your song to a group of friends, it’s not “fixed,” and thus not copyrighted. Saving an electronic form of your story on your hard drive “fixes it,” and thus it is copyrighted. If you write your story on paper or record yourself telling it, then it’s fixed and copyrighted.
How is copyright related to publishing? The rights granted by the law are the property of the copyright owner. The owner–that’s you, the author–may sell or lease some or all of these rights. Publishers generally want something like “First North American Rights,” or “First European Rights,” or even “First electronic rights.” The key word is “first.” Publishers aren’t generally interested in reprints–they want to be the first in the market with a new work. This is what the author sells to the publisher. The sale may also include the word “exclusive,” as in “exclusive electronic rights for three months.” Some of the rights, like the right to reproduce or the right to distribute, can be sold more than once. Obviously, “first rights” can only be sold once per market.
If I post my work online, have I lost the copyright? No. Posting online is a tangible form of publication and can establish copyright. However, if you have posted on an open website where the anyone with a web browser can read your work, that constitutes “first publication,” and you can no longer sell that right to a publisher. That means most publishers won’t be interested in your work. See above: they almost always want “first rights,” and you will have used those up.
So, does that mean I should never post online? No, of course not. In the first place, you’ve probably written many things you don’t intend to submit to a publisher. Things like this blog, for instance. Or a story for a contest. Or just for the joy of writing. You can find many stories in my portfolio on Writing.Com that will never go to a commercial publisher. They were fun to write. I learned from writing them. And, they can serve as teasers for things I have sent to commercial publishers.
Even if you do plan to submit your work, it’s fine to share it with a small, limited number of readers. If you protect your work with a password, for example, and only share it with a small group of beta-readers, you haven’t “published” the work. You can therefore still sell “first rights.” The important thing is controlling who can read your posted work and limiting this to a small group of people you personally know. Most publishers encourage sharing your work with a writing circle in just this way. Writing.Com makes it easy to put passcodes on your items and protect them in this way. Most publishers are also fine with posting a limited excerpt from a novel for marketing purposes. It’s not uncommon to publicly post the initial 1-3 chapters of a novel as a teaser.
What is a copyright notice? Is it required? We’ve all seen these. They consist of the copyright symbol,©, the word “copyright,” the name of the author, followed by the date of publication. And no, it’s not required–see above. It’s not wrong to put it on a published work, but it doesn’t change the rights. If you are submitting a work to an agent or editor, it’s probably not a good idea to include the notice. Agents and editors will be fully aware of the relevant law and may regard the notice as evidence of an amateur author. Notice that all work posted to Writing.Com automatically includes a copyright notice and lists the author as the copyright owner.
I found something on the web, and it didn’t have a copyright notice attached. That means it’s in the public domain, right? Wrong. See above. It’s no longer required to put a copyright notice on a work to preserve the copyright. It’s not a bad idea to do so, but it’s certainly incorrect to infer that absence of the notice means the item is in the public domain. Most companies will vigorously defend their copyrights. Remember, you’ll want others to respect the ownership of your work, so you should extend the same courtesy by not using copyrighted material. Besides, there can be legal consequences, including damages, for violating someone’s copyright.
What’s it take for a work to be “original?” Generally, the legal test for creativity is not rigorous and is easy to meet. Be careful, though, that your work isn’t derivative of other work.
What is “derivative” can get confusing, as the controversy over Led Zeppelin’s Stairway to Heaven and Spirit’s Taurus shows. Both songs use strikingly similar chord progressions in their openings. Led Zeppelin prevailed in the original lawsuit that alleged they infringed on Spirit’s copyright, but then the case was appealed. As of October, 2020, when the Supreme Court refused to hear the case, the judgment in favor Led Zeppelin, i.e., that there was no infringement, was affirmed.
The chord progression in question, by the way, appears in other, earlier works, including one by J.S. Bach, so what’s “original” in the lawsuit and what’s derivative might be open to question. Or not. Novels use chapters without being “derivative,” for example, even though Emily Bronte used them two hundred years ago. Is a chord progression like the idea of a chapter, or is it like the character Jane Eyre? The courts appear to have decided that, legally, a chord progression is more like a chapter and less like a character, even if they can’t answer the more basic question.
In any case, the whole controversy over this song just supports the point that copyright law is complex.
What can’t be copyrighted? Titles, names, ideas, procedures, slogans, and public records (like the deed to your home) can’t be copyrighted. You can’t copyright the idea of a mystery novel. Trademarks and patents, though, are different from copyrights. A certain famous mouse–you know his name!–is subject to both trademark and copyright protections. One company filed a patent on the idea of “online exams,” and sued–unsuccessfully–universities all over the US for infringement. On the other hand, writing an entire novel set in the Star Wars universe would be a “derivative work,” and violate numerous copyrights. A parody of Star Wars, though, would have fewer restrictions–see Weird Al’s The Saga Begins. On the other hand, his use in the parody of the famous music by Don McLean required purchasing rights from the music’s copyright owner.
Do I have to register my copyright? No. See above. In fact, the Berne Convention, an international treaty from 1886, specifies that copyright must be automatic. The US acceded to the convention in 1988.
Does copyright expire? Eventually, yes. As a general rule, for works created after January 1, 1978, the copyright lasts for the life of the author plus seventy years. The rules are more technical and different for “works for hire” and pseudonymous works, or for works published prior to 1978. Note that different countries have different laws. For example, in Mexico the copyright extends for 100 years after the author’s death. The Berne convention requires that copyright last a minimum of fifty years after the author’s death.
Should I register my copyright? Under the Berne convention, registration is not required. In the US, however, while authors are granted copyright without registering, they may sue for damages only if the work is registered. Registration is available upon filing a form and paying a $45 fee to the US Copyright Office.
Major publishing houses will generally register your copyright for you. However, if you sell your story to a small online press, you’re almost certain to be on your own. Indeed, the $45 fee might consume a significant part of your payment for short fiction.
The Digital Millenium Copyright Act adds complications and provides some additional protections. Your material doesn’t have to be registered to file notice and takedown letters, for example. However, you must be registered to seek relief, including injunctive relief, in a US district court. If someone has removed your copyright notice with intent to defraud, they can be subject to criminal charges. The challenge is that establishing “intent” is always difficult.
For better or worse, the bottom line is that suing for infringement is almost never feasible if your work is not registered. Even if your work is registered, a cease-and-desist letter can cost thousands of dollars from a competent copyright attorney. It’s up to you to balance the costs against the potential return.
What more is there to know? Well, lots. This is just a layperson’s summary, gleaned from various sources. Lawyers who specialize in copyright law spend years learning their profession, so you can’t possibly learn anything in depth from a blog like this. Further, I’m not a lawyer, and even if I were you shouldn’t rely on a blog for legal advice. However, if you follow the suggestions in this blog about not posting your work in the open on a website, your publisher will likely handle most copyright issues for you. For legal advice, especially on a complex topic like copyright law, consult an attorney. My intent here is to give a layperson’s summary of copyright and how it relates to publishing fiction, at least as I understand it.