By Bradlee Frazer
GUIDELINES FROM A COPYRIGHT LAWYER
GUIDELINES FROM A COPYRIGHT LAWYER
“I copyrighted my book by putting © on the bottom of the first page.”
“This picture is on the Internet, so I can just ‘right-click’ and use it on my website.”
“I copyrighted this DVD by mailing it to myself.”
“We don’t have any copyrights because we never registered anything with the government.”
Have you ever said or heard any of these things? If so, you
are in good company—most people have. But they are all incorrect.
The belief that “copyright” is a verb besets and befuddles
almost every author. Should a writer “copyright” an unpublished work before
submitting it to an agent or publisher? If a writer does not formally “copyright”
their unpublished work and finds someone copying it or giving away free copies,
how are they disadvantaged, if at all? How does a writer “copyright” her work?
To a copyright purist like me, “copyright” is not a verb. It
is a noun. Technically, a copyright is an incorporeal property right that
springs into existence when a sufficiently creative idea is reduced into or
onto a tangible medium. It’s actually like magic, like the Big Bang when the
universe sprang into existence from a sea of quantum probability. When someone
writes words on a page or draws a picture or sculpts clay or trips the shutter
on a camera, the human being doing the writing, drawing, sculpting or tripping
has created and is the owner of a copyright (a noun!) in the resulting work—assuming the resulting
work possesses the requisite creativity. Done deal—no ©, no government filing, no
mailing to oneself needed to create a
copyright.
So, assume you have written a book. If it is creative and is
not a blatant rip-off of someone else’s work, it is likely you own the
copyright in and to said book (there are some major exceptions to that general rule regarding copyright ownership,
all of which are beyond the scope of this initial blog post). If you sell a hard copy of that book, you are
only transferring ownership of the paper, the ink and the binding. The
incorporeal copyright remains with
you on those facts because a copyright exists apart from the medium on or in
which the work is tangibly embodied. Said another way, when you sell a copy of
a work you authored, you do not at the same time sell away your copyright in
the underlying work. They are different concepts: the medium, and the
copyright—a distinct intangible property right—the author possesses in the work
contained within or on that medium.
If someone copies your book, or large portions of your book,
without your permission, that is likely an act of copyright infringement, since
the owner of the copyright in a work is the only one who may lawfully make or
distribute copies of that work. But in the United States, for the owner of a
copyright to have the ability to file and maintain a lawsuit in federal court
for copyright infringement, the owner of the copyright must have registered the
copyright at issue. This act of registering one’s copyright is accomplished by
filing a registration application with, and paying a fee to, the Copyright Office at the Library of Congress.
So, should a writer “copyright” an unpublished work before
submitting it? Or, said from the copyright purist’s perspective, should the
author of a work file an application to register her copyright in that work
with the Copyright Office before submitting it to an agent, a publisher or some
other third party? The answer depends on
whether the author wishes to have a remedy to enforce her copyrights through a
copyright infringement lawsuit in the event her work is copied or distributed unlawfully
and her copyright is thus infringed.
This is the key issue every author must
address when deciding if registration of her copyright in a work is warranted:
is the availability of a remedy for copyright infringement important? Will the
author of the work be aggrieved is someone uses her work without her
permission? If so, then registration is
important. In general, however, agents and publishers will not knowingly
infringe a copyright in a submitted work. To do so would be anathema to their
reputation and their business, and so most authors should not be overly anxious
about making routine, industry-related submissions of their works without
registering their copyrights beforehand.
There is one very important “gotcha” that can arise from not
timely registering one’s copyrights. In the United States, if you do not
register your copyright in a work within three months of the date of first
publication of that work, you will not be able to recover either your
attorney’s fees or a special category of money called “statutory damages” in a
subsequent copyright infringement lawsuit—even if you win. “Publication” for purposes of copyright law is defined differently than the
common understanding associated with being a “published author.” Under
copyright law, “publication” is very loosely defined as “giving or selling a
copy of the work to a third person,” so remember that to have your full panoply
of rights available if you do file a copyright infringement lawsuit, you must
register your copyright. And if possible, register within three months of the
date of first publication, as defined.
Please email me at bfrazer@hawleytroxell.com
if you have any questions.
About Bradlee Frazer
ITW Member Bradlee Frazer’s debut novel The Cure: A Thriller is available through links on his publisher’s website. And yes, he has registered his copyright in the book.
