Picture
Copyright is one of the few legal protections offered to writers, yet surprisingly few writers take advantage of this safety net. Many writers assume that once they have written something it is automatically copyrighted.

Technically, that assumption is correct. Anything you create is copyrighted, but unless you register your work with the U.S. Copyright Office you will never be able to defend your claim. If someone steals your work, you are free to take legal action, but judges like to see formal proof of intellectual property rights.

As far as the courts are concerned, simply claiming ownership does not confer it. Sending yourself a manuscript in the mail, and leaving it unopened, does not qualify as proof that you wrote it. It only proves that someone wrote it.

What is copyright?

Copyright is legal protection for any expressive work, published or unpublished,  that appears in tangible form: books, articles, screenplays, dramatic works, poetry, images, songs, software, and architecture all fall under the umbrella of copyright. Work that appears online - your blog, let's say - can also be copyrighted. Having a copyright gives you legal grounds to sue someone who plagiarizes your work.

Your rights as the owner of any expressive work include reproduction, distribution, display, performance, and adaptation. As owner, you may assign or sell some (or all) of those rights either temporarily or permanently. While it is best to copyright your work as soon as it is finished, you can copyright any intellectual work within five years of its creation.

What can't be copyrighted?

Titles cannot be copyrighted, nor can names (including domain names), slogans, or taglines (although these can be covered under a Trademark). News items and historical facts are not covered. Likewise, ideas cannot be copyrighted.

After the publication of Dan Brown's The Da Vinci Code, two authors, Michael Baigent and Richard Leigh, sued Random House claiming "non-textual infringement in a literary work." The basis for the suit was a nonfiction book they, along with a third author, had published in 1982, The Holy Blood and the Holy Grail, in which they proposed that Jesus and Mary Magdalene were married and had produced a child, and that a secret society protects their descendants from the Catholic church. While this is remarkably close to Brown's book, and, may in fact have been the source of his central premise, the lawsuit failed because copyright only extends to the expression of an idea, not the idea itself.

Author Lewis Perdue also sued Random House on similar grounds, claiming that Dan Brown had plagiarized characters from two of his novels. He lost as well. Characters, like premises, are ideas.

Cost

The fee for registering a copyright is $85 (which is more than quadruple what it was when I registered my first copyright). Authors who are used to doing things on the cheap may balk at the expense, but it is well worth it. Even if you spend nothing else on your work, spring for registering your copyright.

What to do when a publisher wants to copyright your work

Unless a publisher specifies that the book will be copyrighted in your name (and offers to send you proof), do not give your copyright to a publisher.

My first book was published by a small publishing house, the owner of which sent me what she called a "boilerplate" contract. (There is no such thing. All contracts are negotiable.) One of the clauses stated that the publisher would hold the copyright of my book. I balked, although I wasn't sure what the details of copyright were, and refused to sign the contract. Reluctantly ("Oh, all right.") the publisher agreed. Years later, when the book had gone out of print, I hired a lawyer to restore my rights. (Had the out-of-print clause been better worded I would not have needed a lawyer, but that's a topic for another post.)

Subsequently, I self-published a second edition, which sold significantly more copies than the first edition. Had I given up my copyright, a second edition probably would not have been published, and the book would simply have died.

How publishers undermine your copyright

While most publishers are happy to give copyright to their authors, securing rights for the duration of the copyright in effect gives publishers a de facto copyright. Authors Guild has objected to this practice, stating in its Fair Contract Initiative:

"There’s no good reason why a book should be held hostage by a publisher for the lifetime of the copyright, the life of the author plus seventy years—essentially forever. Yet that’s precisely what happens today. A publisher may go bankrupt or be bought by a conglomerate, the editors who championed the author may go on to other companies, the sales force may fail to establish the title in the marketplace and ignore it thereafter, but no matter how badly the publisher mishandles the book, the author’s agreement with the original publisher is likely to remain in effect for many decades."

The Authors Guild has proposed three changes: (1) time-limited contracts, (2) a clause that provides for reversion of unexploited rights, and (3) a specific new unchallengeable definition to replace historic “out of print” clauses that are not remotely relevant in the electronic age. While publishers may be reluctant to issue time-limited contracts, the second and third suggestions are not only possible, they were part of my contract with Random House, which means they can be included any contract.

With shorter works, such as short stories, no literary magazine should ask for rights for the length of the copyright. Literary magazines typically ask for first North American serial rights, which gives them permission to publish your story first in North America only. Rights to short stories usually revert "upon publication." If the literary magazine also publishes a yearly anthology they may require an extension of those rights for up to a year. Any longer than that is not reasonable. Because short stories published in literary journals have a short shelf-life, rights that last for the length of the copyright effectively prevent authors from keeping their stories alive through reprints and collections.

Copyright for news pieces is often owned by news media under "work for hire" stipulations. But this is not the case for literary magazines, unless you are expressly hired to produce work for the publication. Being paid for an original short story or nonfiction piece that you have submitted, or receiving an advance, does not constitute work for hire.

Can someone else quote what you have copyrighted in their own work?

The simple answer to that question is yes. Anyone can quote what you have copyrighted, provided that it is in a different context. This is called "fair use." (Fair use stipulations are located in Section 107 of the Copyright Act.)

A good example of fair use is when a reviewer or journalist excerpts portions of your novel. Because the context has changed, your work has now been "transformed." For non-fiction, any scholar or researcher can quote your work in the context of a book or article discussing similar material. Teachers can also make copies of your work to use in a classroom.

Contrary to popular belief, there is no set amount - 10%, 20%, 30% - that constitutes fair use. What is important is not the quantity, but how it is used. As long as the context has been changed your work can be quoted. Because fair use falls under the First Amendment right to free speech, permission from the copyright holder is not required.

Do this now

Don't wait until you have finished your book to find out about copyright protection. Go to copyright.gov and read their FAQs. In spite of their plethora of circulars - which rival the IRS in sheer quantity of excess verbiage - registering a copyright is fairly straightforward: You pay the fee, and you send them your work. They then send you a certificate of copyright, which you will keep in a safe place.

Always copyright your books! If you don't, you will have no protection against intellectual property theft - a practice which, sadly, is rife in the publishing industry. If you send material to beta readers or to reviewers before publication make sure you have added a copyright notice.

 
 
Picture
Authors Guild board member T.J. Stiles sent a note to the San Francisco Writers Grotto last week about the Authors Alliance, which launches next Wednesday.

After reading the Publishers Weekly interview with Authors Alliance founder, Pamela Samuelson, I have to say I agree with Stiles. The Authors Alliance doesn't represent authors any more than Georgia-Pacific represents trees. 

The erosion of copyright protection can only harm authors. If we decide to offer our work for free, it should be when and how we choose. We gain nothing from giving up our right to royalties. 

It should be mentioned that Stiles suggests that academics, who don't write for a living, wouldn't be harmed from the erosion of copyright. He is mistaken. Academic publications often garner huge royalties for authors when they become required reading for college courses.

Feel free to pass this along to others. Here's the link.
_________________________

May 15 note from T.J. Stiles to the San Francisco Writers Grotto:

I would like to pass along a warning about a new group that is trying hard to attract members, calling itself the Authors Alliance. In a recent interview in Publishers Weekly, founder and executive director Pamela Samuelson presented the Authors Alliance essentially as a counterweight to the Authors Guild. As an Authors Guild board member you may consider me biased. I have read the Authors Alliance materials, am familiar with the work of its directors, and met with one of them and developed a pretty good picture of what it’s all about.

If any of you earn a living as a writer, or hope to, I strongly urge you not to join the Authors Alliance. If you think authors should be the ones to decide what is done with their books, then I strongly urge you not to join.

However, if you are an academic, or scorn the idea of making a living from writing as a quest for “fame and fortune,” the Authors Alliance may be the organization for you. If you think, in our digital age, that the biggest problem facing authors is how hard it is to give your work away for free, it’s for you. If you think you’ve got too much power over people who copy and distribute your work without your permission, by all means sign up. Even if you agree with one or two things advocated by the Authors Alliance, if you join you lend weight to its entire agenda.

To be clear, I firmly believe that authors should have the choice to give their work away. That’s the Authors Guild position, too. But no one should make that decision for you. I’m pro-choice.

A few key points:

It’s an astroturf organization. It was not organized by authors, nor is it governed by them. The four directors are Berkeley academics. The executive director and her right-hand-woman are law professors who have made many proposals to reduce copyright protections for authors and restrict remedies for infringement. (I take that wording from the writings of Prof. Samuelson.)

As Samuelson stated in Publishers Weekly, the organization is intended to represent the interests of authors who don’t write for a living—academics and hobbyists. See my comments below on the financial interests they represent, and how they are at odds with those of authors who write for a living.

It may be too early to identify official Authors Alliance positions, but its directors and advisory board members have pushed such ideas as

• allowing people to resell digital files the way they can resell used physical books. Of course, with current technology the original copy would still exist, so that the “resale” would be copying. In other words, anyone could become a publisher of your book, selling or giving it away as much as they want by claiming to simply be reselling. You would have to prove they were doing it more than once—have fun with that! (For you legal wonks, this is called the application of “first-sale doctrine” to digital media.)

• allowing libraries to digitally copy your books, even if you have an e-book edition for sale. No security measures would be required. You would have to hire a lawyer to sue a library if you could prove that the library had allowed its self-published digital version of your book to be stolen and released onto the Internet. As has already happened with the theft of scholarly journals. Even if you did sue, by the way, you couldn’t collect damages from public libraries or state universities, which enjoy sovereign immunity.

• allowing private for-profit corporations to copy your books in their entirety and selling advertising against searches of them, and otherwise making money from your work. They wouldn’t have to ask your permission or share any revenue with you. Samuelson said, on behalf of the Authors Alliance, that Google had the right to do so, which would mean any business corporation could monetize your work, if they know how to game it just right.

• allowing potentially unlimited copying for educational uses. For many of us, library and educational markets are huge parts of our income. Many books are created specifically for educational use. Expanding free copying raises potentially huge problems—including the possibility that anyone claiming to be an educator could copy your work wholesale and not pay.

• requiring proper attribution of others’ works. This reasonable-sounding proposal sounds all kinds of alarms. Who will judge our books? What will be the penalties?

I have no doubt that their theories are sincerely held. But they happen to align perfectly with their own financial and professional interests. As academics, they don’t care about the commercial market for books or writing. I would argue they’re actively hostile to it.

Not including the executive director, the lowest paid member of the four directors earned $196,000 in 2012; the highest paid earned $262,200. That doesn’t include benefits. Prof. Samuelson is independently wealthy. I’m happy for their success, and wish all professors were paid this well. But my point is that these academics are insulated from the commercial book market, except to engage in it as consumers. They don’t earn much from royalties, but in most cases their advancement is largely based on publishing low-print-run academic works. Their interests lie in getting your books at low cost to supply their own academic work, and in advancing their own careers and incomes by making their own work available for free. Salary information is available here: https://ucannualwage.

When it comes to issues that actually matter to authors, the Authors Guild already advocates and provides actual services. The Authors Alliance does not. The Authors Guild provides free contract review and much more. The Authors Alliance will provide one-size-fits-all“education” about how to get your rights back. Period.

Again, you may believe that authors are too powerful, and have too much control over what happens to their work. But please be warned that if you sign up, you are lending support to a very long agenda. The Authors Guild is actually run by authors, elected by the membership, with an annual meeting open to all. That ain’t true of the Authors Alliance.

The Authors Alliance will stress some issues that are of authentic interest to authors, such as making it easier to get your rights back when you’ve signed them away to a publisher. If that was all there was, fair enough. But it exists to make it appear that there is a grassroots authors’ organization in favor of loosening copyright protections and limiting remedies for copyright infringement. (Do we have any remedies, by the way? Take-down letters are about as powerful as wishing wells.) And it doesn’t offer any actual services.

The intellectual-property shop at Berkeley’s law school has a very aggressive and expansive agenda that was crafted without working authors in mind. They want you to join so they can say you are one of a large group that supports that entire agenda. Let the joiner beware.

T.J. Stiles
Authors Guild board member
Author of The First Tycoon: The Epic Life of Cornelius Vanderbilt, winner of the Pulitzer Prize and National Book Award, and former Guggenheim fellow

Note: Copyright confers substantial benefits to academic authors. The Authors Registry, which shares office space with the Authors Guild provides a handy example. The Registry pays photocopy royalties collected abroad to US authors. Over the years, it has paid the lion’s share of its $22 million in disbursements to academic authors. Not many refuse the checks.

This is not to say that copyright is functioning as it should in academia. Far too often, copyright is used to separate scholars and scientists from their intellectual property. Scientific and scholarly journals frequently insist on seizing the author’s copyright as part of the price of publication. For scientists in particular this can be galling: their work is usually publicly funded, yet privately locked up.

 

UA-35329706-1UA-35329706-1