Copyrights
Basic Information and Resources

Copyright is complex, and becoming more so with multi-media, and especially the Net. In general copyright comes under civil law, however the recent American NET Act, which deals with large-scale willful copyright infringement, is part of criminal law. The premise of this piece is just to offer basic information, to make you aware of choices you have when offering work for publication, and I've tried to cover some of the questions people ask on the list. Yes, this piece is my copyright; you may save or download for your own use - anything else, ask me first! I'm including URLs/links pertinent to the topic discussed throughout, and further sites that have useful information at the end.

Three recommended websites for copyright information:

• United States Copyright Office/Library of Congress
• Law Girl - Copyright

PUBLIC DOMAIN. This refers to a work that is out of copyright, and therefore freely available to be used/published without needing to obtain permission or pay a fee for it. It applies to work where copyright has lapsed, usually by virtue of time, and does not generally concern working writers, whether amateur or professional. TV companies just love making film adaptations of 19th century novels that are in Public Domain, and so avoiding the need to pay the writer! Though you should note that elements of public domain works might still have protection under trademark laws.

What is protected by Copyright: Copyright, for any writer's purpose, applies to ALL original written work and implicitly belongs to the author of that work - unless the author relinquishes their rights to it. More on this later under "Assignment." Original work - this means that it has to have been the product of skill, and/or labour, on the part of the author. So you will see, it is simply by creating a piece of work that makes it your copyright, and this applies to all written work, including letters - and email! Anonymous works - these have copyright protection too.

The general rule in copyright is that a work is owned by its author. An essential exception to this rule is that the copyright in a work made by an employee in the course of his/her paid work will usually belong to the employer - subject to any agreement to the contrary - and these facts/terms are usually stated in the contract of employment. This exception only applies to actual employees, not freelance contributors.

There is no single "international" copyright that protects throughout the world, and copyright protection depends on the law of any individual country. Most countries offer protection to foreign work/authors under conditions set out in the international copyright treaties, the two principal ones being the Berne Convention and the Universal Copyright Convention - UCC.

What is not protected under Copyright: There is no copyright protection for ideas, titles, factual information, plot or character - though it's possible to protect characters under trademark legislation. If you send out a manuscript that's rejected, and later see a book/article etc. from that publisher that seems to echo a familiar idea, there is in fact very little you can do about it. The US Copyright Office Public Information Section has an excellent 60 question FAQ:

• http://lcweb.loc.gov/copyright/faq.html#q37

US Registration. It is not actually necessary to register your work - i.e. pay your $20 to US Copyright Office - to make this so, nor, strictly speaking, is it even necessary to put a copyright notice on your work. However, for the sake of paranoia, and if you are going to be looking to claim compensatory damages for mental anguish and damage to reputation, etc, if someone uses your work without your permission, then you will want to pay your $20.

For work of US origin, and foreign work that originates from a country that is not a signatory to the Berne Convention, registration is required if filing an infringement suit in court. In other words, for those outside the US, so long as your country is party to Berne, you don't need US registration. The U.S. Copyright Office Home Page has lots of information and links, including New/Pending Legislation, Digital Millenium Copyright, and the other US Government links I've also given separately - and you can download the registration form to print out from the following link that also lists all the info and printable forms for copyrighting various types of works.

• http://lcweb.loc.gov/copyright/

or write to them at:
Register of Copyrights
Library of Congress
Washington, DC 20559-6000

Both these URLs take you to the useful and informative US Government Copyright Basics page:

• http://lcweb.loc.gov/copyright/circs/circ1.html#fnv
• http://lcweb.loc.gov/copyright/circs/circ1.html#noc

Britain does not have a copyright registration system, and British copyright law is subject to EU regulation, as are many other aspects of British law.

Other ways - in most countries, you can send a copy of your manuscript to yourself by registered post, and deposit the unopened envelope and receipt at bank or some such; or put the ms in a sealed envelope, take to a Notary Public & have it notarized, and post the envelope to yourself, preferably by registered or other secure, receipted postage.

Copyright Notice: The copyright notice is put on to notify, and warn, others, but your copyright still exists, even without a notice. However, a good reason to make sure you put the notice on is that if a work is infringed, it then becomes very difficult for the infringer to claim innocent infringement, which can occur if the infringer genuinely does not realise the work was protected. Of course, infringement shouldn't occur, as anonymous works still have copyright protection! The notice should also contain year, and name - either real, or pseudonym, under which the copyright is held - any of the three following examples will do perfectly for 'visually perceptible copies' that is, something which can be seen as opposed to just heard; (you can add anything you wish, for instance an email address):

© 1998 John Doe
copyright 1998 John Doe
copr. 1998 John Doe

You may copyright work under a pseudonym - pen name, or nom de plume, although the pseudonym itself is not protected by copyright. Many writers have more than one pseudonym, perhaps using different names for different genres - and different publishing imprints. The copyright still belongs to the real person behind the pseudonym, ie, you. More on this later. If you are registering your copyright in the US, you can choose whether or not to be identified by your pseudonym or your real name in the records.

You can exploit your copyright in a work in two ways:
First, ASSIGNMENT - if you assign your story/book/etc, you are actually giving away, or selling, the entire right in that work, and you retain no interest in it, except in some circumstances for possible payment of royalties. In other words, you relinquish rights in that work - the copyright becomes the property of the person you have assigned it to. So, if you give someone "all rights" then be very clear that is exactly what you're doing. Assigning your copyright is irrevocable - and if someone gets to make a movie out of your work, it's not going to be you that gets the benefit! So it is probably almost never in your interest to assign. Think of Assignment as losing the copyright in that piece of work forever, and be very sure that's what you want before you sign up for it.

Then there is LICENSING, sometimes called Leasing - a much better idea, and what you will usually want to do. This means that you, the owner of the copyright, grants a licence to another to exploit the right, while still retaining overall ownership. So, if you sell/give your story to a magazine, you are in effect giving them a licence to publish your work in an issue of that magazine.

It is absolutely irrelevant whether or not financial gain is involved when you give another a right to publish your work - use of copyright does not depend on money, it depends on permission.

You might well choose to accept less than ideal terms regarding rights in order to get your work into a particular publication, but you should at least be aware regarding such rights, and so make an informed choice when you do this. It is the publisher's job to acquire rights to publish work as cheaply as possible, it is not their job to teach you about your choices or your rights. It is entirely your own responsibility to acquire this information.

Consider each possible separate use of your piece as a separate right, to be dealt with by itself. For example, be aware that story you are selling to the magazine might also at a later date become part of an anthology, which should be a separate right. Always remember that translation rights, serial rights, anthology rights, bookclub rights... and so on, not forgetting electronic and/or multimedia rights, might at any future time, be another revenue earning opportunity, or alternatively, somewhere else your work has an opportunity to be seen.

A new edition or adaptation of an existing piece of work may obtain a new copyright - it won't affect the earlier copyright protection of the original. So, if you post your story to the ERA listserve, it is your copyright - if you change or adapt the piece in any way, that is a new copyright and you might then choose to have it published in another format. In other words, if you have posted a story, and perhaps in the light of comments received, chosen to change it in any way, you are of course able to offer "First Rights" to a publisher, but you must consider exactly what "First Rights" you are offering. And even if you wish to have the piece used in another way for free, you will not be able to if you have signed "All First Rights" away beforehand.

There is probably no good reason to offer information to a prospective publisher regarding friends, on or off a private listserve, having seen the work for feedback. If you're asked for all first rights or first electronic rights, ask why that clause is there, and in what other way they are intending to use your work, rather than offering information. And remember publishers will each have their own, and different, definitions of what constitutes 'previously published.' For some it might simply mean work that you have been paid for, for others it might refer to the net, yet others might mean any kind of circulation anywhere at all.

If you offering the piece to, say, a print magazine, then what you probably wish to give are the "First Rights" for the piece to be published in that format, and you might well consider it none of anyone's business whether or not friends, etc. may have commented on the piece, particularly so if the comments were on a first draft, as it were. You might also want to consider why that print magazine should want an all-encompassing "First Rights"...whatever do they intend doing with it, and what do you get out of it?

If you sell/give your piece to said magazine, what you probably really want to offer is the right, first or otherwise, to publish your piece in one particular issue of said magazine... ideally the contract or other paperwork should state which issue, and in what timescale... if it doesn't, then ask for clarification. You aren't really likely to want them to hold onto it for an indefinite amount of time before using it, as you may not be able to exploit your copyright elsewhere, say to another magazine, until the first contract has ended. Where an issue and date have been agreed, but for some reason the publisher has failed to honour the agreed terms, then action is up to you, you may choose to withdraw your offer for them to publish at all, or agree to a future issue, or try for a 'kill fee' for example, but whatever you do, always confirm it in writing, and always keep copies.

Always read, very carefully, any offer, letter, or contract that you receive from any person or organisation that is likely to publish your work anywhere at all. If you don't like or don't understand something, ask for clarification. And remember that contracts are negotiable, so if there's something you don't care for, negotiate! You may not always get what you ask for, but it's for sure, that if you don't ask, you certainly won't get! Many writers opt for a clause in their contracts stating explicitly that the publisher accepts all legal responsibility. Contracts are legal agreements, make absolutely sure you understand the terms exactly before agreeing/signing. Keep all paperwork - always. It saves future arguments, stuff you can't possibly imagine cropping up has a habit of doing just that.

With publishing on a net pay-site, as always, read the contract carefully, and if necessary, get advice. If a pay-site wants to post your story without paying you, tell them "no!" and check the site out from time to time, just to make sure.

When using a pseudonym:- The contact information you give the publisher will list your real name, and you could also add aka "pseudonym" The story submitted with it has "story name" by "pseudonym." As I've said earlier, the copyright can be for your real name or your pseudonym... some people have many pseudonyms, different ones for different genres. You will still be able to get paid in your real name without problems, and you can ask to have put in the contract - John Doe aka "pseudonym" - or - John Doe who writes as "pseudonym" - on it. You might wish to choose to be paid under your pseudonym, which then becomes a "trading as" name - this route can lead to considerable financial and tax complications - you might want to get an accountant to set this up if it's your preferred route.

For further information on the US No Electronic Theft "NET" Act, which provides for enhanced protection of copyright; and a summary of changes to criminal copyright, try the following two web sites:

• http://www.usdoj.gov/criminal/cybercrime/#net
• http://www.usdoj.gov/criminal/cybercrime/netsum.htm

For legislation affecting the Internet 105th Congress:

• http://www.authorsguild.org

Brad Templeton has an excellent site, 10 Big Myths about copyright explained, concerning copyright in relation to the Web and Usenet:

• http://www.templetons.com/brad/copymyths.html

Lloyd Jassin is a lawyer and co-author of The Copyright Permission and Libel Handbook: A Step-By-Step Guide for Writers, Editors and Publishers, published by John Wiley & Sons. His website is CopyLaw.Com at:

• http://www.copylaw.com/index.html 

© 1998 Hazel Weldon

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