Kill Electrons, Not Trees

Fiction Publishing in the 21st Century
by William Gaius

A Copyright Primer

Copyright, ISBN, and LOCN, are the Three Witches of publishing. That’s because they’re handled by the same part of out brain that deals with the US Tax Code and mortgage documents. You input your question, and out comes gibberish, boredom and ennui. But there’s a bare minimum that every writer needs to know about them. In this column, I’m going to discuss copyright.

Copyright matters because it’s the handle by which you sell your writing to publishers. When a publisher buys your writing, he’s paying you to sign over some or all of the rights that you own under copyright law. For example, you might sell First North American Rights, which licenses the publisher to publish your story or novel one time in North America. At the same time, you, the author, are promising that you won’t sell the same rights to another publisher. There are many kinds of rights that you can sell—anthology rights, reprint rights, electronic rights, and many others. The rights should be fully spelled out in the contract. If not, then you shouldn’t sign until they are. A link at bottom summarizes some of the rights that can be sold as part of a publication deal.

I’m still surprised that, with the Internet and the vast stores of information available to writers, copyright remains a whirling miasma of myth, lies, and wishful thinking. The US Government maintains an easy-to-use website that tells a writer all she needs to know about protecting her work, yet the myths persist. I won’t dwell on the myths, which are legion, but on the bald facts of copyright as developed from the original Berne Convention in 1886 to the World Intellectual Property Organization Copyright Treaty of 1996 and the Digital Millennium Copyright Act of 1996.

In the meantime, a list of facts that you should know to function as a writer who writes with the intent of paid publication:

1. There is no need to register a copyright, or even to include a copyright notice in your work. Common-law copyright protection is automatic for any created work as soon as it’s fixed in tangible form, whether scribbled, printed, saved as an electronic file (e-book, audio, or video recording, e.g., a dance performance). Even skywriting may be covered, since it can be photographed and ‘fixed in tangible form’ before the wind blows it away.

2. Titles and ideas cannot be copyrighted. However, some titles can be protected under much murkier trademark laws. For example, if you use ‘Mickey Mouse’ or ‘Harry Potter’ in your title, you can expect to hear from a law firm. Putting ‘Star Trek’ in the title can be construed as unlawful use of someone else’s property and penalized accordingly. Because trademarks are so subjective, litigation is even more expensive and drawn-out than in copyright law.

3. Music: tunes and lyrics. Danger! Third rail! Do not touch! You have been warned. Case law makes the concept of ‘fair use’ almost meaningless where music is concerned. Write your own lyrics if you need them, but don’t use other people’s music or lyrics unless it’s 100 years old, and even then, make sure it’s not a latter-day arrangement of an old piece, which will be separately copyrighted.

4. Copyright protection is in force from the moment the work is created and lasts for the life of the author plus 70 years, in the US and UK. In some countries, the term is shorter, life plus 50 years. 

5. The copyright must be registered with the Copyright Office (Intellectual Property Office in the UK) before you can sue someone for copyright infringement. Conventionally-published books are normally registered at publication and a copyright notice is printed on the reverse side of the title page.

6. After registration, you cannot make changes in the work. The copy deposited with the Copyright office is the legally protected one. If you do make changes (e.g., a second edition), a new common-law copyright is created, which should be re-registered when the new edition is published.

7. You cannot protect your work by putting it in an envelope and mailing it to yourself. This is called the ‘poor man’s copyright’, and the law treats it the same as it treats poor people, with scorn and derision. Save your stamps.

8. A copyright notice on a manuscript submitted to an agent or publisher is unnecessary. They know your work already carries a common-law copyright. I’m told that publishers and agents often interpret a copyright notice as a warning that they may be dealing with a rank amateur or a litigious or paranoid author who will cause them nothing but grief.

9. Someone has pirated my novel. So exactly how do I go about enforcing my copyright? This is rarely discussed in writing literature, because the answer is neither simple nor satisfactory. The most important initial action is to send a Notice of Infringement (for printed or e-published material) or a DMCA Takedown Notice (for online material). The link below explains what information must be included in a takedown notice. The same information should be included in a Notice of Infringement. This almost always results in an end to the infringement, because if the notice is ignored, the courts will be more likely to consider punitive damages if the case eventually goes to trial.

10. If an infringement persists, you may be inclined to sue, but be ready to dig deep. Lawsuits involving intellectual property of any kind, whether novels, music, or inventions, are outrageously expensive, and the outcomes are often determined by who has the most money to spend. Don’t run to a lawyer until all other options have been exhausted, and even then, you have to ask yourself, ‘Is it worth the cost and stress?’ And make no mistake, lawsuits are stressful and frustrating, whether you’re the plaintiff or defendant, and they go on for months or years.

A reasonable alternative to legal action is to swallow your anger and offer the infringer a license to use your material, under conditions that you specify. For example, you might be satisfied if there is a credit to the author and a copyright notice attached. If your work is being sold, you can demand a reasonable price, or a royalty, as part of the license. However, it’s important to create the impression through all negotiations that you can and will sue if your conditions are not met. Otherwise, your offer will have no force.

11. ‘Fair use’ refers to the use of copyrighted material without needing to ask permission. But it’s another murky area of copyright law. The amount of material that can be safely quoted depends on the intended use, as well as the nature of the work being created. For instance, critical reviews and educational uses have the widest latitude of fair use. Quoting material in a new work with the expectation of making a profit is more strictly limited. One line from a poem, or one or two paragraphs from a novel, would generally be considered fair use.

Next month, perhaps I’ll get to ISBN and LOC numbers, or perhaps some unrelated subject. Who knows?

Links referenced in this article:

US Copyright Office
List of Publication Rights
Berne and Other Conventions
Skywriting
Poor man’s copyright
Digital Millennium Copyright Act
DMCA Takedown notice

William Gaius
August 2011

Bill Gaius welcomes comments, questions and brickbats, and can be reached at gaius99@comcast.net
Read more of William Gaius' Kill Electrons, Not Trees in ERWA 2011 Archive

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"Kill Electrons, Not Trees" © 2011 William Gaius. All rights reserved.

About the Author:  Bill Gaius lives and works in the American Southwest with his lifetime lover and wife (who happen to be the same person). Retired from a life in science, he operates a small business while writing erotica, but he can't decide which is vocation and which is avocation. While faced with the same barriers to publication that all new authors face, he's made a study of the modern publication process. This was begun with his experience with old-fashioned ink-on-paper publication of his wife's local history book over a decade ago.
In 2010, Bill published two novels, The Ancestors of Star and Lessons at the Edge with femdomcave.com (UK), but has previously self-published the mainstream novel Anne the Healer. He has also assisted friends in the self-publication of their own works.

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