YOUR GUIDE TO

COPYRIGHT LAW


An introduction to copyright law,

and the protections it offers writers.

Plus ---

how to register your work

with the Copyright Office.


By: Jay Stuller



T he phone calls roll into the Library of Congress’s Copyright Office at the rate of some 3,500 each week. More than 130,000 inquiries arrive by mail each year. The questions, says Victor Martin, head of the Copyright Public Information office, are pretty basic: ‘The one most often asked is simply ‘How do I copyright my work?’


 The next biggest is on the difference between copyright and registration. ” Still others concern how and where to get copyright registration forms—many others, because the Copyright Office annually registers more than half a million book manuscripts, poems, articles, computer programs, magazines, motion pictures, newspapers, and, among other creative works “in a fixed and tangible form,” musical compositions and lyrics


Since about 40% of these works are unpublished—and registering a manuscript costs $10 a pop—it’s clear that a large number of folks consider copyrighting serious stuff indeed.


Dozens of books cover the subject. In one of the latest, How to Protect Your Creative Work All You Need to Know About Copyright (John Wiley & Sons), author David A. Weinstein spends more than 300 pages dissecting the

Copyright Act of 1976 , nuances of infringements, statutory limitations, and what can and cannot be protected. Because the law is downright byzantine, there are attorneys who live off this complex field; not surprisingly, perhaps, Weinstein is a lawyer.


However, for the average free-lancer, dealing with rights and copyright should not be complex, time-consuming or expensive. In fact, after 15 years in the magazine- writing business, after working with roughly 100 different publications on more articles than I care to remember, I’ve yet to register a manuscript with the Copyright Office . I can recall only one minor beef regarding copyrights, more on which later.


Copyright law provides basic, automatic protection for writers, whether or not a manuscript is registered with the Copyright Office or even published. Under the Copyright Act of 1976, which went into effect in 1978, an “original work of authorship” has copyright protection from the moment the work is in fixed form.


That is, as soon as you have that article, short story or book on paper, on a computer disk or even spoken into a tape recorder if you’re Barbara Cartland, it is protected by copyright law.


You created it, you own it. And what you’re selling to an editor isn’t the article itself, but actually the right to use the material. We look at this matter of selling rights in detail in ‘Stand Up for Your Rights”. For the moment, let’s cover the basics of what you should know about copyright


WHAT YOU CAN COPYRIGHT.


Because U. S government publications aren’t copyrighted, some of the following is quoted liberally—and with impunity—from a Library of Congress document called Copyright Basics, a circular that attempts to answer some of the questions most often asked of Victor Martin and his staff.


(The free Copyright Information Kit is a handy reference; write the Copyright Office of the Library of Congress, Washington, D.C. 20559 for a copy.


For general information or answers to specific questions, call (202) 479-0700; for registration forms and circulars, call the Copyright Office Hotline—(202) 287-9100 . Business hours are 8:30 am. to 5 p.m., Eastern time.)


Copyright protection exists for broad categories of works: literary works; musical works (including any accompanying words); dramatic works (including any other accompanying music); pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; and sound recordings. Copyright law generally gives the owner of copyright the exclusive right to reproduce and to authorize others to reproduce the work, to prepare derivative works based on the copyrighted -. material and to perform and or display the work publicly.


Note the word generally, for copyright law includes a number of limitations and exemptions.


Several categories of niaterial are not eligible for copyright protection, such as titles and short slogans; works consisting entirely of information taken from common sources and public documents, such as standard calendars, lists and tables; and speeches and performances that have not been fixed on paper or recorded.


Work in the public domain” (that is, material whose copyright has lapsed, or that was never covered by copyright), material that lacks sufficient originality, and basic themes and plots can’t be protected by copyright. Neither can ideas which beginning writers often find perplexing. (A minor digression: My personal view is that ideas, especially in nonfiction writing, are cheap currency. Editors rarely steal an idea from an unknown writer and assign it to another. But it’s a fact—which I know from speaking with at least two or three magazine editors a day—that no matter how novel a proposal chances are at least a half-dozen writers have thought of it simultaneously. A journalist is invariably racing against others; you win only when you hit the right magazine with the right proposal at the right time.)


Since the idea isn’t copyrighted, what is?


The form of the idea, how it’s expressed, how you’ve strung together the words. Curiously enough, the form of the words in a query letter is copyright protected, even if the idea is not.


In addition, a fictional character who is distinctly and strongly developed is also protected. If a film producer were to lift such a character from your short story and build a film around him, this would infringe on your right to create or license derivative” works . Likewise, an attempt to publish a serious novel about Rambo would buy you a lawsuit, although a parody of an established character is OK, since it falls under “fair use” doctrine. (Fair use, under copyright law, allows people to use copyrighted materials in limited ways; brief quotes in other manuscripts, excerpts in book reviews, small numbers of copies distributed in classrooms, as examples.)


To gain copyright protection, your work must be “original,” which means you can’t copy from or infringe on another writer’s copyrighted work . This does not mean that something you write can’t occasionally be similar to what someone else creates, and vice-versa, in terms of the topic, tone and even the substance.


For example, after reading a small story in Aviation Week & Space Techo1ogy about how high-G turns in modern fighters were knocking out pilots and causing crashes, I figured Air & Space Smithsonian magazine might like a detailed look at acceleration forces. The editors agreed: I researched and wrote an article based on the topic, and the piece appeared nearly a year after it was submitted and accepted. Meanwhile, California magazine came out with an article called “Living and Dying at Nine G’s.


While the basic idea was the same, both articles were con ceived independently. Moreover, I concentrated on Air Force flyers; the California writer dealt with Navy flyers.


However, elements from a piece I once wrote on legendary UCLA basketball coach John Wooden’s hoop camp for adults—for PSA’s inflight magazine—are almost certain to appear in any subsequent article about the coach and his camp, whether taken from my story or not. Simple, factual descriptions of the man’s amazing career are frequently going to come out the same way . And since Wooden tells such delightful stories, a writer would be a fool not to weave some into the piece.


Resident experts on any given subject frequently give the same information to journalists— over and over, and often in similar form. But as long as the resulting works are developed independently—no matter the similarity of language—they are copyright protected.


KNOW YOUR SOURCE


You can, of course, use the inforination and facts found in copyrighted material without infringing on it. Moreover, fair use allows you to use snippets of a piece; this is, after all, what a lot of research is all about.


It is best, however, to always put things into your own words, to cite the source, and to be very judicious in the use of other people’s material—unless, like a Shakespeare work, it’s in the public domain—because not being careful could open you to an infringement action.


Fair use is something of a complex and grey area, which can make an infringement suit a gamble . I tend not to be particularly sensitive if some of my lines are borrowed.


For instance, a descriptive scene from my PSA Wooden piece landed in a national magazine article about people at the top of their sport. It was a very small percentage of the borrowing author’s total work and helped him make a point. Again, I considered it no big deal. But if someone copies half of your book word for word and makes a bundle off it, by all means unleash an attorney.


My only copyright difficulty came when I wrote a piece on counterfeiting for Kiwanis magazine. The Secret Service sent me a packet of material on the topic, including photocopies of typewritten pages containing anecdotes about great counterfeiters of the past.


Because the material came from the government and had no copyright symbol on it, I assumed it was open game. (Official government publications belong to the people and—as I’ve said—can’t be copyrighted.)


However, when the piece came out, the author of a decades-old book on counterfeiting claimed that the Kiwanis piece infringed on his work. Since I had recast the anecdotes in my own style and they were but a small part of a story on current trends in the bogus bill business, I stuck by my guns.


After discussing the matter with the book author, we agreed that if the anecdotes were indeed from his book, he’d have a beef with the Secret Service—not me—for photocopying and distributing the material without the author’s permission or appropriate copyright markings.


THE LIFE OF YOUR COPYRIGHT


Under current law, (June 1988) copyright protection lasts for the life of the author plus 50 years. Works created snonymously or pseudonymously have 100 years of protection after creation, or 75 after publication, whichever is shorter. Works created ‘for hire” also come under the 100/75 year rule . When copyright expires, the material enters the public domain.


Prior to the Copyright Act of 1976, work published without a copyright notice, or an improper notice, could fall into the public domain and the writer would lose all rights to the material. Today, such a problem---—even if a work is published without a copyright notice---—can be remedied if you make a “reasonable effort” to place a notice on all undistributed copies and to register the work with the opyright Office within five years of publication.


Most magazines contain a copyright notice: the symbol ©, the word Copyright or the abbreviation Copr. , followed by the year, date and a name. If the magazine

you’re writing for doesn’t carry this notice, you may want to ask the editor to print your copyright notice on your story.


(Should you place your copyright notice at the top of your unpublished manuscripts? Will the copyright symbol provide a useful service? ----- Well, I’ve run into two theories here.


Victor Martin of the Copyright Office commends the habit: “It shows an editor that you know your rights and what you’re doing.” (But one New York literary agent says this simple little notice screams amateur. “Professionals know that the work is copyrighted anyway,” she says. “And if that is the first thing an editor sees he or she is going to think, ‘Doesn’t this person trust me?’


There are enough roadblocks to getting a manuscript a serious read. If I receive one that I feel is worth sending to a publisher and it contains a copyright notice on the first page, I mask it out, photocopy that page and only then send it along.”


I agree with the agent. Putting a copyright notice on a manuscript is like starting out a query letter by saying “I’m a writer.... You wouldn’t be sending a proposal to an editor if you weren’t.)


To register a work, simply fill out the form provided by the Copyright Office --- include the $10 fee and one copy of the work if it’s unpublished, two if published—---and send the packet to the Register of Copyrights, Library of Congress, Washington, D.C. 20559.


Moreover, you can register a large number of articles or stories simultaneously for the same $10; check with the Copyright Office for information on group registration.”


Why bother to spend the $10 to register unpublished material (or, if you’re a bit anxious , the $120 fee for fast Copyright Office service) if it’s automatically copyrighted from the moment it’s in a fixed form?


“I don’t think I’ve ever mailed in a copyright form,” says Bill Hogan. Glen Martin hasn’t. I haven’t, and neither had the four other professional freelancers I asked.


On the other hand Victor Martin of the Copyright Office recommends registration of unpublished works mainly for legal reasons. “If your work is infringed upon,” he says, “registration establishes a public record for your claim and prima facie evidence that a court will accept.”


Before you can bring an infringement suit to court, your work must be registered with the Copyright Office.


If you’ve registered before an infringement takes place, you can sue for actual damages—the income you lost or the benefits gained by the party who improperly used your material—plus statutory damages and attorneys’ fees.


You can also register afler an infringement and then take the case to court, but the case is weaker than if you had registered before, and you can sue only for actual damages. Remember, if the material was stolen from a copyright-registered magazine or book. registration has already been taken care of. (If you2re going after damages, you must coolly consider the stakes.


Should the offending party have made $50 by swiping a portion of your work, you might win a judgment, but the time and trouble is an expensive way to uphold a principle.)


I’d rather spend the $10 registration fee on phone calls and postage hawking new ideas for articles. If I couldn’t sell a particular manuscript, anyone who tries to steal and market it has a car with a dead battery on his hands. But registering work with the Copyright Office is a personal choice: if you feel more secure, go ahead.



The fact of the matter, though, is that copyright problems are relatively rare. I checked with a New York law firm that handles a considerable volume of copyright business. “I don’t believe we have that many infringement cases,” says a legal aide there. Most of our work involves the licensing of copyrighted material and reviewing questions of whether material is in the public domain.”


“I’ve been here three and a half years,” says American Legion editor Mike LaBonne with a laugh, and your call is the first time I’ve had any deep discussion whatsoever on copyrights . Obviously, it’s just not something that comes up around here.”


“There’s a lot of paranoia out there among people who worry too much about their copyrights and register unpublished work,” says one New York literary agent. The fact is, it’s hard enough to get someone to buy a book manuscript much less steal it.”


Says writer Glen Martin: “If you worry about whether your article on current chain saw models magazine isn’t sufficiently protected, or that somebody would actually want to heist it, you’re in the wrong business. It’s a concern that can stand in the way of productive writing.”


Worrying that someone will infringe on your unpublished work is akin to posing for a book jacket cover or planning the dedication before writing the first chapter . If you take a balanced view of your work, and hold onto as many rights .is possible to writing that may have resale value (while not jeopardizing the sale of material with limited worth), your business will run smoothly . And with some hard work, profitably, too.



STAND UP FOR YOUR RIGHTS!



A S NOTED, WHAT YOU SELL TO A PUBLICATION ISN’T THE ACTUAL ARTICLE OR SHORT STORY, BUT SOME OR ALL OF THE RIGHTS TO USE IT.


 These rights are sometimes open for negotiation Here are some of the more common rights that are sold or transferred from author to publication.


First rights: The author sells the right to publish the work for the first time—and one time only.

One-time mghts: Similar to first rights, but the buyer has no guarantee that he will be the first to publish the work . Writers who sell the same story to different newspapers around the country are often selling one-time rights. This is also very similar to simultaneous rights.


Second (reprint) rights: As the words suggest, this applies when material is reprinted in other forms.


Serial rights. The right to publish the work in a publication (which is published serially—thus the term).


Book rights. The right to publish the material in a book.


Now, these definitions can be ~~mixed and matched ” to establish exactly what rights are being sold. That is, you can define precisely what you’re selling. For example, many magazines buy first serial rights, which allows them to publish the work for the first time in a magazine, while allowing you to sell the work to book publishers, the movies, whatever.


If you do sell book rights, the book can appear before the magazine version, because first serial rights means the first magazine publication only.


Similarly, you can define the rights sale by geography (first North American serial rights is a common magazine purchase---—allowing you to retain the right to publish the piece, say, in Europe); by language (for example, English language rights would allow the publisher who bought the work to publish it in English- language publications, allowing you to sell the work to, say, a Spanish- language publication); by time (serial rights for one year, for instance).


You can be as focused as the situation demands. You could sell all Iltinoisan serial rights for three months if you wanted to.


(One side note: in the book industry, the generally accepted terminology goes like this: A book excerpt appearing in a magazine before the book appears is called a first serial sale. The excerpt appearing after the book is published is called a

second- serial sale— even if the material never before appeared in a periodical.)


Other rights categories include dramatic, television and motion picture rights and syndication rights , the latter of which can be a variation of first or second serial, depending on whether, say, a newspaper prints excerpts from a book before or after it’s published. If you reach this stage, you’ll probably have an agent or attorney to take care of all such matters.


Some publishers seek to buy all rights.


This takes away your option to use your material later. (If you resell an article that originally had been purchased under this agreement, you could be infringing on your own work.) Many editors who buy all rights are, however, willing to reassign them to you.


Some writers refuse to work with editors who insist on buying all rights. I believe you have to be very flexible . Reader’s Digest, for instance, buys nearly all of the rights to original articles. Because of The Digest’s stature and high fees—at least $3,000 for an original piece---—its contracts provoke few protests from their many contributors.


 Outside magazine commissions articles on a “work-made-for-hire” basis, which is even more stringent. (Attorney Ellen Kozak explains “Work for hire” in detail in an upcoming WD.) However, Outside tempers its contract by offering a 50:50 split with the author on the proceeds from future rights sales.


If a story will go out of date quickly and has no resale value, selling all rights is no big deal.



But it’s invariably best to sell only first or one-time rights. If the article could be part of a future book, the right to use it has value. The movie Top Gun sprang from a piece in California magazine. One never knows what can happen with a piece of literature.




WHAT’S IN A LETTER?


W HAT’S THE DIFFERENCE BETWEEN THE “R” IN A CIRCLE AND THE “C” IN A CIRCLE? © indicates copyright ownership, while ® indicates that the word or phrase it accompanies is a registered trademark. Both, in their way, signify ownership, the right to use the rnanuscript or word or phrase.


Note that trademark law can protect what copyright law cannot. A title can’t be copyrighted, yet it can be given trademark protection. Star Wars, for instance, is a title that has been granted trademark protection. (In fact, there was some loud grumbling that nicknaming President Reagan’s Strategic Defense Initiative “Star Wars” might be a trademark violation.) You could name your novel The Grapes of Wrath without infringing on anyone’s copyright. Copyright law couldn’t prevent you from naming’ that same novel Star Wars; trademark law could,


Should you consider trademarking your titles, then? No—unless, of course, one of your manuscripts becomes a wild commercial success, and when that happens, you will have agents and a accountants and other business advisors to take care of such small matters.

                                                                                  Jay Stuller has written for

                                                                                  Reader’s Digest, Playboy,

                                                                                  Good Housekeeping,. Smith-

                                                                                  sonian and other national

                                                                                  publications.

SOURCE”

WRITER’S DIGEST Magazine

June 1988. (Pgs 28-31)

P. O. Box 1952, Marion , Ohio 43306



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