Copyrights and wrongs–PART 2
From Rick:
Last time, I covered what copyright is, what it protects, and how you acquire a copyright. The key theme of that post was that your work is protected by copyright from the moment you start to put it down in a fixed form, be it physically on paper or in electronic format.
This time, I’ll cover what copyright doesn’t protect and address concerns writers often have about the potential theft of their work.
WHAT IS NOT PROTECTED BY COPYRIGHT?
The Copyright law says,
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
This is an important area where many misunderstand copyright. You can’t copyright ideas and concepts. We can understand this better if we look specifically at what copyright does NOT protect. The following is from the short 12-page version of copyright law mentioned last time:
Several categories of material are generally not eligible for federal copyright protection. These include among others:
— works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
— titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
— ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration
— works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
This raised a question in my mind as to whether one’s notes and outlines of a story or novel represent copyrightable material, or do they merely express the idea, which is not copyrightable?
A bit of research gave me the answer:
The key lies in the copyright law wording “fixed in a tangible form of expression.” As long as you’ve written your idea down, fixed it in tangible form (and it is original and not copied from a common source), it’s protected. I’m assuming that a mere statement of an idea probably won’t hold up, though. You must write down more than “an orphaned boy living with his aunt and uncle is invited to attend a school for wizards” (the concept of Harry Potter). That’s still an idea and hasn’t been pushed into the “creative expression” realm.
You have to begin writing the story itself. If writing down a brief paragraph or two of one’s ideas were all one needed for a copyright, then authors everywhere would be in serious trouble because whoever wrote out that plot premise would lock out every other author from writing a story along those lines without permission.
I know I’m nitpicking here, but I want to impress upon you the difference between an idea and a creative expression of that idea. Lecture notes are protected by copyright because they are the expression of the lecturer’s ideas and interpretations. On the other hand, if he simply read from a textbook, then notes copied from such a lecture would not fall under copyright protection. They would, however, be considered under the copyright of the textbook and therefore could not be freely distributed or sold as original.
This leads to the next part of my post.
PARANOIA OVER YOUR WORK BEING STOLEN
I’ve come across writers who go to the extreme of registering part of their work in progress with the copyright office in the belief that they work isn’t protected unless they do. This is a waste of money, and it shows a misunderstanding of the copyright law. Further, while the copyright office allows you to make minor changes (edits and corrections) to your work under the original copyright registration, if you substantially change it, it’s considered a new work and you have to re-register it. But registration is not required. Copyright law still protects the work in all of its forms, but the registration would be effective only for the portion completed at the time of registration.
And the works that I’ve seen from such paranoid authors would not, in my opinion, prove a threat to anything on any bestseller lists–and therefore are probably not going to be a target for any imagined manuscript thieves.
The copyright basics brochure says:
Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work.
The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. See the following note. There are, however, certain definite advantages to registration.
Publication is no longer the key to obtaining federal copyright as it was under the Copyright Act of 1909.
These mean that the work does not have to be completed before copyright is in effect. Neither are you required to register the work or have it published in order to have a copyright in effect.
According to the Copyright Act of 1976, registration of copyright is voluntary and may take place at any time during the term of protection (the author’s life plus an additional 70 years). Although registration of a work with the Copyright Office is not a precondition for protection, an action for copyright infringement may not be commenced until the copyright has been formally registered with the Copyright Office.
There is a mistaken notion that mailing a copy of your work to yourself and leaving the package sealed is an alternative to registering a copyright with the Copyright Office. This is referred to as “Poor Man’s Copyright.” Here’s a link to dispel this myth:
Every few months I see someone expressing concern over someone stealing their work if they post it on a critique website for writers. Actually, posting the work that way likely better protects you because now you have witnesses to corroborate that the work is yours.
Copyright law may look complex, but at its core it’s very simple. Note the following two pieces of information:
The use of a copyright notice is no longer required under U. S. law, although it is often beneficial. Because prior law did contain such a requirement, however, the use of notice is still relevant to the copyright status of older works.
Mere ownership of a book, manuscript, painting, or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.
You do not need to place the copyright symbol on your work for it to be considered copyrighted. Adding the symbol is usually done only when the work has been registered, but present or not, it in no way affects your rights. And should someone steal a physical copy of your manuscript, that does not give the person any rights to it, nor would giving someone a copy transfer the copyright.
But let me put a few other notions out there to assuage your fears. Writers do not troll the Internet looking for ideas to steal. Why don’t they? Well, good writers–established writers–have more than enough ideas of their own to work on. They don’t need more, and they certainly are not going to risk their reputation by stealing someone else’s idea or work.
Plagiarism–and getting caught at it–is usually a death sentence for a writer. In this day and age it’s virtually impossible to steal a work and not get caught. Few smart writers will risk even the hint that they stole someone’s idea because that stigma will brand them, and they won’t be trusted anywhere. Sure, it happens, but it’s extremely rare. Here’s an interesting link to some famous plagiarism cases and accusations thereof.
Many novels posted on critique sites are simply not attractive enough to steal. This doesn’t mean they aren’t good. They’re posted on such sites because the authors need help with them. Thieves and plagiarists are not looking to steal ideas. They’re looking easy money. They’re not going to steal something unfinished or in need of a lot of work. Besides, writers good enough to repair someone else’s novel will likely find it easier–and safer–to write their own from scratch.
If you checked out the plagiarism link I posted above, you’ll notice two things. First, many of these cases involve lifting parts of other people’s work and incorporating the material into their own. They don’t steal entire works. Second, most of these plagiarism cases were about published works, not unpublished ones, being stolen. Here’s a link to a recent lawsuit where an author’s e-book was allegedly plagiarized. This wasn’t something taken from a critique site:
This reinforces my point that thieves aren’t going to steal something raw or that they have to complete. They’ll take the easy way out and modify something already done–the path of least resistance.
WHAT ABOUT TITLES? CAN SOMEONE STEAL YOUR TITLE?
At the start of this post, you learned that you can’t copyright a title. I’ve seen cases where an author has chosen a title early on and years later, when the book is ready to be published, another book with that title appears. In fact, it happened to me.
I’d been working on my first novel More Than Magick for over ten years before it was finally published. Shortly before its release, I discovered another published novel with the same title (and same spelling of “magick” had been published about a year before. I was concerned because I liked the title and so did my publisher. After discussing my concern with my publisher, we decided there was no problem. The other novel was a mystic, paranormal romance and was nothing remotely resembling my science fantasy. It was available only in e-book form (this was in 2004, well before e-books were all the rage), and mine was a mass-market paperback. To further add interest to this story, a year or so later, yet a collection of erotic short stories) appeared with the same title and spelling of “magick.” As far as I know, none of these books impacted the sales of the others.
I hope this has cleared up any copyright questions you had and eased your mind with regard to the protections in place for your writing. I had originally planned to end here, but next time I want to cover one more topic: protecting your copyright.
Below I’ve listed some additional links regarding titles and copyrights.
COPYRIGHTS AND TRADEMARKS AS THEY APPLY TO TITLES
NAMES, TITLES, AND PHRASES IN THE UK COPYRIGHT LAW
–Rick