What does "copyright" mean?
Literally meaning the right to copy, copyrights are statutory grants to authors and creators of "original works" of certain use rights for a specified period of time. For online tutorials on U.S. copyright, check out the ones provided by the University of Texas at http://www.lib.utsystem.edu/copyright/ and the Association of American Publishers at http://www.publishers.org/press/pdf/RPAC%20powerpoints%201.pdf. For a good basic question-and-answer article on common copyright permission myths, see attorney Lloyd J. Jassin’s article at http://www.copylaw.com/new_articles/copy_myths.html.
How do I get my work copyrighted?
If you are writing for the U.S. market, at some point you will want to have your work registered with the U.S. Copyright Office, which is part of the Library of Congress. If a traditional publisher is publishing your work, your publisher should take care of formally registering it. If you self-publish or have your book produced by a POD packager, your printer or POD packager may offer to register your book for a fee. But registering is a relatively simple procedure, and there is little reason for you to pay extra for someone else to do this for you. Copyright registration currently costs $30 per application (which can cover one work or a related series of works, just as long as you have complete manuscript drafts to turn over at the time of registration), and can be easily accomplished by following directions on the Copyright Office’s Internet site at http://www.copyright.gov/.
In the United Kingdom, copyright is under the Patent Office and is automatic upon creation; there is no registration system and no registration fee.
Should I copyright my work before sending it to an agent?
As long as you keep original copies of your manuscript, you needn’t worry greatly about protecting your intellectual property rights to the book. Under recently established U.S. copyright law, you own your work from the point you’ve put your thoughts on paper. (To be realistic, also, there is little risk that anyone else will try to steal your work.) However, if you find that you just can’t help worrying about the security of your work, and spending $30 plus manuscript copying and postage would relieve this worry, just go ahead and formally copyright the work using the instructions provided on http://www.copyright.gov/.
The primary arguments for not formally registering your work before a publisher contracts it is that a traditional publisher will handle the registration, including the costs, and that, outside of the music industry, there have been almost no known instances of attempts at theft of whole works. (There have been instances of plagiarism, however, where extensive passages are used without permission or attribution.) It must be noted, however, that should an author want to take a copyright case to court in the United States, he/she will need to have formal copyright registration for the work in hand to have the case admitted by the courts.
As long as the content of your work does not change to the point of making it unrecognizable, you needn’t copyright a subsequent edited edition after having formally copyrighted an earlier edition. (The title can even change.) However, the possibility that your work, including the title, may change enough in the publication process to raise questions about the identification of the finished work with a version you copyrighted earlier is another good reason to consider not having the work copyrighted until the book is set for printing.
How is my case in court affected in the United States if I don’t have formal copyright at the time I want to bring suit?
Under current U.S. law, you will have to have formal copyright documentation in hand for a case to be entertained in U.S. court. This is covered under 17 USC, Sec. 411—Registration and infringement actions, which says "(a) Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b), no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title."
What is a "poor man’s copyright," and how do I do that?
A myth of various informal copyright procedures that are cheaper and just as effective as formally registering copyright continually float around the U.S. publishing market. A typical recommended procedure for this is to put your manuscript in a manila envelope, seal it, send it to yourself through the U.S. mails so that it is date stamped, and then put it in a safety deposit box or some other safe place and produce it in court in its sealed envelope in case you need to prove that someone has stolen your work.
This myth has probably shown the resilience it has in the United States, because in the United Kingdom, where there is no formal registration system for copyright, the U.K. patent office suggests just such a procedure for added protection. Such a "poor man’s copyright" procedure is largely a wasted effort in the United States, however, for several reasons.
• First, there have been very, very few cases of substantiated manuscript theft in the United States (most of what has occurred has been in the movie script and song lyrics arenas), and, considering the glut of material on offer to agents and publishers, prospective book authors are being largely paranoiac to think that anyone would bother to try to steal their work in the first place.
• Second, since there have been very few cases of manuscript theft, case law on such theft and on the acceptance in court of a "poor man’s copyright" is ill defined and untested—because currently, as previously discussed, you cannot take a copyright infringement case to court without holding a formal copyright registration on the material. Publication lawyers have suggested that, even if current law changed, such a copyright procedure would probably not be accepted in court because the procedure could easily be circumvented (e.g., the post office dating is of the envelope; it has nothing to do with what may or may not have been in the envelope when you sent it to yourself) and note that it would have been just as effective to give samples of your work to a few friends who could testify in court what you were creating and when, if that became necessary.
• It is nearly as cheap and easy to just go ahead and register a formal copyright through the U.S. Copyright Office as it is to execute an informal, thus far ineffective homegrown scheme.
What rights are involved in a manuscript? Who owns them?
The author owns the copyright unless she/he created the work under a work-for-hire contract, in which case the author’s employer owns the copyright. (An aside: anything written under contract with or under employment with the U.S. government is automatically in the public domain.) As the owner, the author can assign the rights that make up the copyright bundle, as a whole or in parts, to others for a specified time (which could be for eternity).
There are two layers of rights involved in a manuscript: primary and secondary rights. Primary rights include:
• Right to produce the work
• Right to prepare derivative works
(including translation, musical arrangement, dramatization, fictionalization, movie, sound recording, art reproduction, abridgement, condensation)
• Right to distribute copies of the work
(This usually is confined to first distribution rights, which means that after the book has been purchased in the first sale, i.e., in a bookstore, the copyright holder has no say over how the copy is further distributed.)
• The right to perform the work
• The right to display the work
In the United States (but not in the United Kingdom) these rights are mitigated by the "fair use" principle, which permits copying/use without permission under certain circumstances. No firm guidelines exist as to what is and what isn’t permitted under the "fair use" principle, and determinations are still being made on a case-by-case basis. Determination is made on four factors: the purpose and character of use (with private use being far more permissible than for-profit use), the nature of the copyrighted work, the amount and substantiality of what is used relative to the whole (U.S. publishers will commonly take a chance on use of a fully cited quote of no more than 50 contiguous words of a work of at least 500 words in total length), and the effect of the use on the potential market for the copyrighted work.
Secondary rights (rights to publish beyond the initial grant of form/territory) include:
• Translation rights
• Copublication and coedition rights
• Book club rights
• Paperback rights
• Reprint rights
• Serial rights
• Digest and condensation rights
• Anthology and quotation rights
• Electronic publishing rights
• Dramatization rights (theatrical rights, radio, movie, television)
• Videotape and audiocassette rights
• Merchandizing rights
• Visually handicapped rights
• Large print rights
I understand that if I let my publisher have the world rights, I can lose a lot of money. I’ve heard I can do better by having an agent handle the world rights or doing this myself. True?
When your publisher holds the world rights, this doesn’t cut you out of making money—and if you keep the world rights, this doesn’t guarantee you more money than if you’d leased the rights to the publisher (it doesn’t promise that you will realize any money at all unless you know how to find a buyer). You need to determine how much time/effort you want to spend in writing as opposed to searching for and negotiating your own deals.
When the publisher has the world rights, the publisher does all the work in leasing and managing them—and sending and collecting on the bill (and is probably in the best position to actually find a world rights deal in the first place). They take a big slice of any income from this (often 50 percent)—but the author still gets paid (less than 50 percent, of course, if there’s also an agent to feed) and hasn’t had her/his time and effort taken up with finding such a deal him/herself.
Another option is to contract with your agent to sell the rights. You’ll still only get a percentage of the income. It’s a toss up between publisher and agent on who could find a world rights deal better—and a determination that would have to be made when the real situation and real cast of characters come on stage.
The other option is to lease them yourself and get 100 percent of the profit—in return for doing 100 percent of the finding of someone who wants to buy the world rights (no easy job) and doing all the paperwork maintenance and billing on the transaction.
Does my title have to be unique? Can I copyright my title?
Titles cannot be "owned" under copyright law. At the same time, you normally will want your title to be unique enough not to be confused with or overshadowed by a more marketable book. The U.S. Library of Congress has the most complete collection of and records on books that have been published in the United States. You can check existing titles of books published by mainline publishers yourself at the library’s Internet site at http://catalog.loc.gov.
Although titles cannot be owned under copyright law, there are instances in which they could be trademarked or could be protected under unfair competition law. These instances could only arise when the title originator can make a case that the title has attained secondary commercial value (something on the order of exploiting the Harry Potter book series with spin-off toys, clothes, bedding, and so forth). If you are planning to make secondary use of a title of a work you’ve copyrighted in the U.S. market, you could pursue protecting it through the U.S. Patent and Trademark office (http://www.uspto.gov). For a discussion on this, see the Web site of publications lawyer Lloyd J. Jassin on the Internet at http://copylaw.com/new_articles/trademrk.html#titles. However, be aware that simply trademarking a name doesn’t prevent another author from mentioning the name in their work—as long as they spelled it as trademarked in reference to your work; they just couldn’t use it in a demeaning manner unless they did so in a fictional context that could be defended as satire.
I have a great idea for a book or concept for a movie. Can I copyright those?
No. You can’t copyright an idea or a concept. You must develop that idea or concept into a created work to copyright it.
Do I need to include a copyright notice or symbol on my work for it to be protected?
You don’t have to include a copyright notice or symbol in the United States for books published after 1989 (conversely anything published before that year lost its copyright protection if its printed versions didn’t include the copyright notice). Copyright notices stopped being mandatory in the United States in 1989, as a result of the United States’ joining the Berne Convention. (For authoritative discussion of this, read the relevant circular on the U.S. Copyright Office Web site at http://www.copyright.gov/circs/circ03.html). This is also true for the United Kingdom, which joined the Berne Convention in 1987. But in both markets, more strongly in the U.K. market, it is still considered a good idea to mark your work as copyrighted. The correct form for a copyright notice on a manuscript is to type "Copyright [year of creation] by [author/owner] at the bottom of the title page." It’s also proper to use the C-in-a-circle symbol (©) instead of the word "Copyright."
If you do not see a copyright declaration on a work containing material you want to use, this does not, however, mean that the work is not protected. If you don’t want to risk your wallet becoming a lot thinner, you need presume it is unless research shows that it is not.
Do I need to register copyright and pay the fee for each and every separate work I produce?
You don’t necessarily have to copyright all of your distinct works separately. Although you can register poems, stories, and books, for instance, separately, you can also group a series of poems or stories together and register them as an anthology even if you are going to publish them in separate publications. In addition, you can even group related book manuscripts together and register them, with a single fee, under a single series title.
If I’ve registered copyright on a book manuscript before a publisher contracted it and the book was then edited and the title was changed before publication, does copyright have to be registered again?
A work doesn’t have to be registered again if the content changes through editing, even if the title has changed, unless it has been so significantly changed in content that its identification with an earlier version can be questioned. The possibility that the work might change enough to evoke questions of whether it is the work originally registered, however, is a good reason why most works are not formally registered for copyright until they are ready to go to the printer.
Are the individual recipes in a cookbook copyright protected?
According to a posted response on the U.S. Copyright Office’s Web site (http://www.copyright.gov) concerning copyright protection for individual recipes, "Listings of ingredients as in recipes, formulas, compounds, or prescriptions are not subject to copyright protection. However, when a recipe or formula is accompanied by substantial literary expression in the form of a explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection."
How long does a copyright registration last? Do I need to renew it?
U.S. Copyright provisions have been established by a series of laws, so the length of copyright protection and the need to renew depends on when the work was originally copyrighted. But for books only now going into copyright (and any originally created after 1 January 1978), they generally have a single copyright term of the life of the author plus 70 years. For multiple authors, the copyright extends for 70 years after the death of the last-surviving author. Works for hire and works that claim no identifiable author (anonymous and pseudonymous works) have a single copyright term of 95 years after first publication or 120 years from creation, whichever is shorter. This copyright term no longer can be renewed.
The laws of copyright duration in the United States now conform with the Berne Convention, to which the United Kingdom is also a signatory, so the terms given above for the U.S. market also reflect those of the U.K. market.
Can I transfer the copyright? How do I do that?
Any of the exclusive rights under copyright can be transferred to a different owner in both the United States and the United Kingdom, but this needs to be established in writing and signed by the author to be enforceable.
