It never ceases to amaze publishing and entertainment lawyer Steven C. Schechter how little creative people know about the law and how it relates to their work. He doesn’t mince words: “They just jump right in without any idea of how the business side works.”
Copyright law is a prime example. While it’s a writer’s best defense against infringement—it’s also one of the most frequently misunderstood aspects of publishing.
What Does the Law Actually Say?
Copyright law protects original and creative expression, including literary works and works of non-fiction. Copyright protection begins at the moment of creation—as in, the moment the author begins typing or putting pen to paper—and while the right is automatic, in order to take legal action, an author must officially register his or her work with the U.S. Copyright Office.
Having taken that step, the author is recognized as the rightful copyright owner, thereby giving her a host of privileges, including the sole right to control the reproduction, distribution, and public display of the work. The latter point—that of display—is particularly important to indie writers as it protects against the unauthorized distribution of e-books.
“On the surface, it’s actually very simple,” says intellectual property lawyer Lloyd Jassin. “Copyright is about protecting original works of authorship that have been set down in some tangible form—and having done that, no one else can do what the copyright owner can do without permission.”
In the case of infringement—plagiarism, unlicensed distribution, etc.—that author can, as Schechter puts it, “walk into any federal court in the country with an injunction order.” If the author wins the suit, she gets statutory damages and attorney’s fees. But, all courts require proof of your registration from the Copyright Office in order to accept a case.
“You protect your other most valuable assets, like your house and your car,” Schechter says. “The same should be done for your literary works, on which you’ve expended a great deal of time, effort, and sweat.”
What Doesn’t the Law Protect?
Although registering your work with the Copyright Office sounds like a no brainer—and Schechter would say that it most certainly is—there are several aspects of a literary work that copyright law does not protect, and it’s important to know what they are.
While copyright law does protect creative expression, it doesn’t protect procedures, concepts, or principles. For example, a recipe for tomato sauce is not copyrightable—but a cookbook of recipes mixed with stories about how recipes were passed down from the author’s Sardinian grandmother is copyrightable.
In other words, you can’t copyright an idea, but you can copyright how the idea is expressed. For that reason, plots are not copyrightable. Also not protected under copyright law are short phrases or simple sentences, information in the public domain, extemporaneous speech that hasn’t been written down, and book or story titles—unless they’re part of a series.
So, How Does an Author Obtain a Copyright?
Schechter says that unlike other government offices, the Copyright Office’s website is both user-friendly and packed with handy information, including helpful FAQs, forms, and circulars.
Authors can visit eco.copyright.gov to register their work online. After creating a user profile, all an author has to do is fill out a brief application form, upload a digital file or representative sample of her work, and pay a $35 nonrefundable processing fee. Alternatively, an author can download a paper application and send in a physical copy of her work for the Copyright Office to review and keep on file.
The process can be lengthy—it can take up to nine months for a copyright to be issued—so Jassin advises submitting an application as soon as possible after publication. Having finally received its official copyright, the work will be protected for the duration of the author’s lifetime plus an additional 70 years.
Copyright is a powerful right, and Jassin would caution any self-published writer to think twice before signing it away. “People should always hire an attorney if a publisher or anyone ever approaches them with a contract that transfers the copyright to a publishing house, for example,” Jassin says. “Because if a book continues to be a success, then whatever is written in that contact is going to count for a lot.”
What About Third-Party Vendors?
Even if you give a publisher the right to non-exclusively publish and distribute your work, you still retain the copyright, which allows you to publish and distribute with other platforms of your choice.
Some third-party platforms will help you register your work with the Copyright Office for a fee, but Schechter advises just doing it yourself, considering how cheap and easy it is.
What Does An Author Do If Someone Infringes Her Copyright?
There are several things an author can do before making the drastic move to bring a lawsuit. First, have a lawyer write a cease-and-desist letter threatening legal action if the infringing party doesn’t stop what it’s doing by a certain date.
If an author notices that her work is being infringed online, she can—and without the aid of a lawyer—send a takedown notice to the online publisher or retailer asking them to remove the offending work.
“Takedown notices are a useful tool, but there is a whack-a-mole element to this sometimes, because Amazon might get a takedown notice and remove a book—and then the other party sends a counter-notice and the book goes up again,” Jassin says. “At that point the copyright holder either lets it go or commences a lawsuit.”
Although an author is generally concerned about her own work being infringed upon, Jassin stresses the need to realize that copyright law is a two-way street, so an author should make sure that whatever she appropriates for her own work falls under the public domain or “Fair Use,” which allows writers to legally use brief excerpts of copyrighted materials, such as lyrics, quotes, or lines of poetry without permission.
“Copyright law doesn’t discriminate,” Jassin says. “The same rules and consequences apply to indie publishers as to Penguin or Random House, and if somebody is infringing on your copyright, no matter who they are, you have the right to go after them and they have the right to go after you.”
