Remember I told you the Killer Nashville Conference had different Tracks for writing, getting published, forensics, and building a career? Milt Toby, an author and attorney from Georgetown, Kentucky, did a couple of outstanding sessions which I attended. One was on copyrights, the other contracts. They were so useful, I felt compelled to share my newfound knowledge on my blog. Today’s post is about copyrights. You’ll have to wait on contracts. 🙂
Maybe I’m not too bright, but I’ve never really known the difference between a copyright and a trademark. Judging from the session’s participants, I wasn’t alone.
According to Dictionary. Com: A trademark is any name, symbol, figure, letter, word or mark adopted and used by a manufacturer or merchant in order to designate his or her goods and to distinguish them from those manufactured or sold by others. A trademark is a proprietary term that is usually registered with the Patent and Trademark Office to assure its exclusive use by its owner. It is a distinctive mark or feature particularly characteristic of or identified with a person or thing. Think McDonald’s golden arches, for example. There’s a lot more of interesting information about trademarks I’ll cover soon. Today, it’s back to copyrights.
First, Milt cautioned us not to get caught up with terminology. Good advice since he had TEN rules of copyrights to simplify things. Are you beginning to catch on that copyrights are not simple?
Milt’s rule #1: Copyright means what it says. Copyright = the right to copy.
Copy means it can be Xeroxed, written, preformed dramatically, audio – anything that takes a work and does something else with it. The symbol for a copyright is ©.
It protects expression if it is:
- Fixed – permanent or in tangible form (saved to computer, pencil or pen to paper)
- Original – you came up with it
- Creative – at least a little different from what’s been done before
- Literary works (books, manuscripts, articles, publications, etc.)
- Musical works (musical compositions, lyrics, and scores, records, discs, CDs, etc.)
- Dramatic works (Film and movies, stage plays, TV, choreography, audio, sound recordings, etc.)
- Artistic works (Fine art, photos, prints, sculpture, diagrams, architectural works, etc.)
It doesn’t protect against everything. Among the things not protected are:
- Ideas (unless they’ve been expressed and are fixed, original and creative. For example, ideas for a logo or ideas for designs.)
- Anything in the public domain – this does not mean anything on the Internet!!!
- Government works IF the government is the author (not a contractor)
- Title and Characters (usually – they may be trademarked)
- Protected works after the copyright has expired
To summarize rule #1 a copyright protects some things, but not everything. One’s goal should be to protect his/her own work and not steal another’s work.
Milt’s rule #2: Something is mine; it isn’t yours. I’m the only one who can exploit it.
It is a basic principle of property law. I own a car. It’s my car. You can’t steal my car.
The same applies to something that is copyrighted. I write a book. It’s my book. You can’t steal my words.
A copyright is intellectual property.
Milt’s rule #3: I wrote it, so it is mine…unless it’s not.
What? If I wrote it how could it not be mine? Well, there are a couple of instances (usually in non-fiction) when that might be the case.
- Something created as an employee for someone else. The employer would own the copyright.
- When an independent contractor’s contract states WFH (work for hire), the employer would again own the rights.
This isn’t necessarily a bad thing. But it’s important to realize an author who works for hire receives an up-front fee and would not be entitled to any royalties.
Milt’s rule #4: You get what you pay for.
Using a manuscript as an example, think of it as a bundle of sticks. Each stick is a right and all are the owner’s property and the owner has the right to sell them. The bundle can be sold lock, stock and barrel or piecemeal. In other words, the owner (author) or the author’s representative (agent) could sell each stick (right) separately to different buyers: hardcover, softcover, reprint, e-books, serialization, book-club editions, foreign rights, audio, movie, etc. Or the author might sell a few rights here, a few there and hold on to others. Or, (s)he might decide to sell everything to one buyer, but, if so, that buyer should pay more because the value is greater when it includes multiple rights.
There is a natural discrepancy between seller and the buyer. The seller wants to get as much money as possible for selling the rights and the buyer wants to pay as little as he can to buy them. But isn’t this the case with any transaction?
Milt’s rule #5: Taking without permission is stealing.
Didn’t we learn this in pre-school? In the world of copyright, this is called “infringement.” Infringement is a violation of federal law. Big fines (or maybe even prison) could be involved. Enough said.
Milt’s rule #6: What’s fair is fair.
“Fair use” is a defense to a claim of copyright infringement. It excuses the fact that the person broke the law. Huh? It doesn’t mean stealing is okay. It just means it is defensible. An example would be a book reviewer using a brief passage from a book as a part of his review. The problem is there’s no specified limit on how much is fair use. It’s a gray area. Another example would be when someone’s work is used in a parody. The safe thing is to get permission.
Law on Fair Use is complicated and fact specific.
One thing to remember: Copyright law goes both ways.
Milt’s rule #7: Nothing lasts forever.
According to the US Constitution, Article 1, Section 8: Congress shall have the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries.”
In 1790, a “limited time” was fourteen years plus one fourteen-year renewal if the author was alive. Folks didn’t live very long back then.
For anything created after January 1, 1978, the span of the copyright is the life of the author plus seventy years.
Pretty much anything created before 1923 is now in the public domain.
It’s safest to assume anything else is protected by a valid copyright.
Copyrights may be willed to survivors. I’m in the process of updating my will now. Hummmm….
Milt’s rule #8: Public Domain does not equal the Web
It’s a common misconception that anything on the Internet is free for the taking. Not! Remember infringement is a federal offense. (Rule 5)
In Rule 1 we learned once something was fixed (saved on computer, written down, etc.) it was protected by copyright. That doesn’t mean the copyright is registered with the copyright office in Washington, D.C. The work is still protected by copyright even if it isn’t registered but if someone steals it and you sue them, you’d most likely only get actual damages. Had it been registered, you might also have gotten statutory damages.
Here’s the problem. The copyright is for the work as it was when it was registered. So, it’s probably best to wait until it’s finished because there’s a charge each time you change it and can you imagine the nightmare of updating the copyright every time you changed your work? Heck, it’s hard enough for me to keep track of my most recent copy of my manuscript!
Registration needs to be in a timely fashion—usually within three months of publication.
Register at U.S. Copyright Office. There’s lots of additional information about copyrights, including a fee schedule, on this website as well.
Milt’s rule #9: No ©, No Problem.
© is required for works published before 1978 – without it the work ended up in public domain. After 1978 works haven’t lost copyright protection if they didn’t have the © on them. It doesn’t hurt to add it because if it’s there and someone steals your work it proves the theft was willful.
Milt’s rule #10: There are no “copyright cops”.
- You have to protect your own work. No one (except maybe your publisher) will protect the rights in your work.
- How do you know your work has been stolen? Good question. Set up searches like Google Alerts. You can do this for pictures too. So be extra careful when you find an image you want to use out there in cyber land. The owner can find you and demand payment if it isn’t public domain. This happened to someone I know from an online writing group. Seriously! And this applies to Facebook, Pinterest, and all the other social networking sites too, FYI.
- Copyright protection starts the moment a work is “fixed” in a tangible form – registration is not required to create copyright.
- Timely registration with Copyright Office in Washington is necessary to file a federal copyright infringement lawsuit (either before the infringement or within three months of first publication)
Whew! That’s it for copyrights. After the lecture, I went to the registration desk where I
loitered networked between sessions. I enthusiastically told another writer about the copyright workshop I’d just attended and he actually checked my beverage if choice. He didn’t think it possible I could get excited about something he opined had to be mundane (even though he wasn’t present). Well, here’s his his second chance to learn something about copyrights.
Thanks again to Milt Toby for sharing this information with me.
Copyright Infringement is a Federal Offense (See Rule 5) so here are my References:
Milton Toby’s Slide Presentation and lecture for Killer Nashville: Copy Rights and Wrongs: Milt’s 10 Rules of Copyright August, 2012
… and his references:
On the Web:
- Author Law A-Z: A Desktop Guide to Writers’ Rights and Responsibilities, Sallie Randolph, Capital Books Inc. (2005), ISBN 1-931868-26-3
- The Copyright Handbook, Stephen Fisher, NOLO (10th ed. 2008), ISBN 13-978-1-4133-0893-8
- Copyright Companion for Writers, Tonya Evans-Walls, Legal Write Publications (2007), ISBN 978-0-967579-9-4