Copyright and You
Copyright, because it is an area of law, can be scary for writers, and many new writers worry about their work being stolen; they want to know what to do to protect their work. So questions about copyright pop up frequently.
Do you need to register your work to protect it before sending it out to publishers?
How do I ensure my copyright is protected?
Should I do that whole thing where I mail it to myself and don’t open the envelope?
How do I stay safe?
The thing to know about copyright is that it is based on the principle that only the creator of a work has the right to publish (and profit from) that work. The first thing to know is that in the United States (and in many other countries) copyright is protected from the moment you create a work. It is not protected from the moment you think of the work. The idea for the work is not protected, but the execution is. This can mean a few important things.
First, as the creator of a work, only you have a right to publish that work in the form in which it was created as long as the work was not under a “work for hire” arrangement. This means if you signed a contract promising to write something for a company as a work for hire, then you won’t be the owner of the copyright and copyright protection will belong to the company that hired you.
Now, assuming you wrote the story, and it wasn’t written as a work for hire, then you are the owner of all the rights under copyright from the very instant you created it. The registration of the copyright isn’t when protection starts. The addition of a copyright notice isn’t when the protection starts. It starts when you create it.
Registering your copyright takes time, effort and money. So why does anyone ever register a copyright? Because a registered copyright affects the amount of money you can get if your copyright is violated. It doesn’t offer more protection, but it does offer more options for ‘punishment’ for the copyright violator. But you really only need to be sure to register by the time you enter the courtroom for the judge to be able to award you the most possible money. You do not need to worry at the “writing and sending out to publishers” stage.
As a matter of fact, agents and publishers often look askance at submissions with a registered copyright by the author. First, the author registering the copyright is unnecessary, so it can make you look a bit paranoid. And second, once the book is finally published (or the story is published in a magazine), the finished product is registered by the publisher. The point of publication is the logical time to register as that’s the time the work will go out to be seen by the most people. The publisher will prefer that some form of the story is not already registered. One reason is because you can’t register the exact same thing more than once.
Now, the published form of the book or story isn’t the exact same thing as a loose manuscript. Editing occurs, and design/illustration choices will alter it, but how much change is necessary to be able to register it a second time? That’s one of those gray areas, so publishers would prefer not to deal with it by acquiring manuscripts that are not already registered with the copyright office of the government. Another reason is that the copyright page of the book or manuscript must contain the legal date of the registered copyright. So if you registered your copyright and then began submitting, the actual time the book is published may be years later than the copyright date, making it look to the consumer as if they are buying a reprint.
What About “Poor Man’s Copyright?”
You may have heard the you should print a copy of your work and mail it to yourself, then file it without opening it so that the postmark is “proof” of your being the creator of the work. When I asked intellectual property lawyers and law professors about that, they all said the “poor man’s copyright” has never made a difference in court in their experience. In real life, it’s pretty rare of anyone to dispute that you wrote the stuff you wrote. If you have a copy of the unedited text on your computer (and especially if you have more than one draft of it), you really do have enough proof. Copyright violation is rarely a matter of you not being believed as the writer of whatever you’ve written.
So how is copyright violated? The most common place for copyright to be violated is online. Say you’ve written a story and put it on your website. It’s yours, and you still have legal control over it, but it’s online so sometimes people who liked the story will then post it on their website or in their “ezine,” thus violating your copyright. The best way to deal with that is simply to request they remove your protected work. Most of the time, people will. But not always. And if the person is being difficult, you’ll have to decide if you want to take the matter further.
If you take the person to court, they will often claim to have violated your copyright only because they didn’t know any better. And if the judge believes them, often all that will happen is that the person will be made to remove the material (which means you went to a lot of trouble for no return). So to avoid this kind of “innocent infringement,” a good practice is that if you publish your own material on your own website, add a copyright notice to the story. (You don’t need to register it; it is enough to add the notice so no one can claim they didn’t know it wasn’t freely available to publish).
Under your copyright protections is the concept of derivative works. That means that only you have the right to create something directly derived from your work. So, for instance, only the copyright owner of Spiderman has a right to create Spiderman stories (but the owner can and does license that right to lots of publishers for lots of money). That doesn’t mean the author of Spiderman owns all superhero stories. It doesn’t mean Spiderman owns all stories about people gaining the powers of insects. But the more the story is similar to the original, the more likely it is to be covered by derivative works. This is a grey area though, and therein lies the issue for some copyright infringement.
Say you write a story about a bunny picnic. And then later, you discover there is already a picture book about a teddy bear picnic. Is your story in danger of being a derivative work? First, it can only even possibly be a derivative work if you’d seen or heard about the teddy bear picnic story before or during the writing of your story. Second, a judge must believe that your story wouldn’t exist without the other story. Because anyone could write a story about animals on a picnic without necessarily having read about animals on a picnic, your story would be unlikely to be seen as a derivative work. [Now, just because your story doesn’t violate someone else’s copyright that doesn’t mean a publisher would publish it. It simply means they wouldn’t really worry about it being a copyright violation. They may easily feel that the market for “animals on picnic” stories was presently being met by pre-existing books.]
Derivative Works and Nonfiction
Now, say you write a nonfiction picture book about Teddy Roosevelt and include some really difficult to track down research. And suppose your book is rejected by Publisher A. Then let’s say about a year and a half later, Publisher A comes out with their own Teddy Roosevelt book including all the same research (even the hard to find stuff) and even the same organizational structure (with maybe a different opening and enough differences in the writing that it’s obvious they didn’t just publish your book whole cloth under someone else’s name). Are they guilty of a derivative work?
This is where the grey area comes in. They certainly had a chance to see your work. And there was enough time between them seeing your book and them publishing theirs for the process to have been started by your book. And you could argue that they copied your research as it was very specific and hard to get. But they definitely didn’t just publish your writing. And the law generally feels that facts aren’t protected under copyright as creative property. Still, you argue, their book exists only because yours existed first. A judge might accept that. And a judge might not. Case law gives an individual judge a lot of subjective leeway to figuring that sort of thing out.
So what’s the answer to that? How do you stay 100% safe? Mostly, you can’t, but you can make smart choices that lessen your chances of running into problems.
1. Submit only to publishers with a good reputation in the business. Writers talk, so shady publishers usually do have some complaints against them that you can find in a careful internet search.
2. Keep meticulous notes while researching and writing so you can show your process of creating a book if your ownership of the work is ever questioned.
3. Put a copyright notice on anything you post online to avoid the “innocent infringer” defense if someone copies your work.
4. Only register your copyright if you need the registration to enter a courtroom (as it will affect your collection of damages).
Illicit use of an author’s work by a publisher is rare (most of the time, it’s more a case of coincidence. A publisher might already have a Teddy Roosevelt novel in the works when yours comes in, so they publish the book they’d already been working on. Of course, that doesn’t mean they don’t ask the author why they didn’t cover the interesting facts they saw in your book.)
But really, this sounds more alarming than it generally turns out to be in the real world. Most of the time, if they like your book, they make an offer, they don’t hire someone else to do the book. That just adds time to the process and doesn’t save them any money. So coincidence is actually at the root of most (though not all) of the times when authors feel their copyright was violated by a publisher.
With over 100 books in publication, Jan Fields writes both chapter books for children and mystery novels for adults. She’s also known for a variety of experiences teaching writing, from one session SCBWI events to lengthier Highlights Foundation workshops to these blog posts for the Institute of Children’s Literature. As a former ICL instructor, Jan enjoys equipping writers for success in whatever way she can.