“The secret to creativity is knowing how to hide your sources”
– Albert Einstein, physicist, 1879 – 1955
When I decided to write this particular article, I was somewhat wary. I am not, never have been, nor wish to be a lawyer, less so one specialized in this area. So as an important caveat before continuing: if, as a writer, you suspect, or know, you are going to have issues with copyright, seek out professional, specialized legal advice. Do not rely on what follows; this is meant to be a simplified guide to the basics of this subject. Also, given that copyright is enacted in many different forms throughout the world, I am going to limit this discussion to the UK, US, Canada and Australia. If you are a writer in Belize, please continue reading because the information I provide might be useful, but for specifics you need to check locally. Last, I’m only going to address copyright as it applies to writers.
What is Copyright?
In essence, copyright protects an author’s original works from unauthorised use. Sounds simple, doesn’t it? Copyright has two facets: protecting your property as an author, and protecting the property of others. In other words, should I wish to use something you have written, I need to ask your permission (see Fair Use later). You have the right to charge a fee for allowing my use of your original material. The rights you manage, as the author, are: allowing a work to be reproduced, publicly distributed, adapted (such as to another media, for example Audiobooks), performed (for example film and TV adaptations, don’t we wish!) and publicly displayed.
Why was this necessary?
Writers worldwide have a debt of thanks to Johannes Guttenberg. In the 17th Century, this gentleman created the movable type printing press which allowed the mass production of printed works by anyone who had the machine and the skill to operate it. Up until then the clergy had a stranglehold on what was published. Their criteria for publication were anything but liberal.
When this technological revolution arrived in the UK it was seen as a major threat to the church’s, and government’s, monopoly. It also directly menaced the social structure of the country. Books and other printed works could now be acquired by those outside the “elite”, thus knowledge and learning (i.e. education) would inevitably spread.
Since 1534, the government had given the rights to publish exclusively to the Stationer’s Company, who in turn had to ask for the government’s permission to publish anything. Sir Roger L’Estrange, himself an author known for his translation of “Aesop’s Fables”, pressed for legislation which would allow the attachment of an author’s name to a creative work. You might be fooled into thinking this was a case of an author fighting for his rights, but you would be wrong. The purpose behind the move was to allow the interested parties to track-down any dissident writers with greater ease. Yes, we scribblers were little more than potential literary terrorists back then.
The Statute of Anne, passed in 1709, finally gave authors a degree of control over their own original works, albeit for a renewable 14-year period. The US passed its own copyright law in 1790. The next big step came in 1928, with the Berne Convention for the Protection of Literary and Artistic Works, which was the first attempt at International Copyright legislation. This was subscribed then by most nations, although the US didn’t sign-up until 1989!
Fair Use, what is this?
The concept of Fair Use allows me to “borrow” a reasonable amount of your work (quoted and with attribution) for use in my own without seeking your permission. As an example, I love quotations, as evidenced by browsing through my web. Now if I had to seek permission and pay for each quote, I would probably still be waiting on legal counsel (who operate outside the universal Space/Time continuum) and be broke! The key point is the amount. The worry is I would affect the income from the sale of your work, because people would buy mine where I quote the best bits from yours.
Is the reasonable amount defined anywhere? – Not exactly, although interpretive criteria are specified in the distinct Copyright legislations. I’m sure you have heard of cases involving popular music where people have been accused and fined for plagiarism when more than 14 consecutive notes have been used from another’s original work. For an example of this, check out the successful case Huey Lewis brought against Ray Parker Jr. for the latter’s “Ghostbusters” main theme, which was eventually settled out of court.
What do you need to do to be copyrighted?
Publish (legally this is called “fixing”) your work in a tangible form for the first time. No you don’t have to register it with anyone to have it automatically copyrighted. However, in the US and Canada, if you wish to take someone to court for plagiarising your work, then you need to register it beforehand with the Official Copyright Offices.
Can I copyright anything?
No. Concepts, ideas, methodologies, titles (!), names, short phrases, slogans etc. cannot be copyrighted, although might be protected if you apply the relevant Trademark legislation which usually does require prior registration. Does this mean I could publish my novel under the title “Harry Potter and…The Indie Writer’s Network”? In theory yes, unless J. K. Rowling has trademarked Harry Potter, a sensible precaution given her success. However, before you rush out and do this, think about you reader’s reaction. Also ask yourself if you are in the right business? I for one would not consider you as a fellow author if you ripped-off other writers with such free abandon.
How long does copyright last?
This varies depending on where you publish. The current periods for original works published now are:
US, UK and Australia – Life of the author + 70 years.
Canada – Life of the author + 50 years (time must pass more slowly in Canada).
What are Moral rights?
You may have seen a phrase in the first few pages of many a novel where the author expressly states his or her moral rights to the work. Moral rights are intended to protect the author in civil and common law jurisdictions. They specifically protect against anything that undermines the author’s relationship to the work even when this is no longer in their ownership. For example, you may decide to assign the copyright of your opus to a film company, yet you retain the moral right to be considered its author. Whereas strict Copyrighting has more to do with the economic aspects of publishing a creative work, Moral rights are all about the ethical considerations.
My Tips and Tricks?
As this is intended to be a practical post, based on experience, I would be remiss in not supplying my own two-penneth worth (or two cents to those in the colonies). When it comes to copywriting infringements, it all boils down to being able to prove when you “fixed” your original work. First, at the risk of tempting Fate, I must state I have never had a problem with copyright. I usually send advanced drafts of my novels to people I trust to allow for feedback before embarking on final edits. I have faith in these people, and am confident they will not steal my labours. However, possibly someone in their environment, unknown to me, has no such qualms and conceivably could publish my novel, under their name, before me.
For over twenty years now, I have been using a trick that costs little to do, yet provides reasonable guarantees if you need to chase a copyright infringement. Before allowing anyone to read my stuff, I print out a full copy, sign and date it, place it in a secure package (all “joints” signed and sealed to evidence tampering) and I send this to myself by Certified/Registered mail. At the Post Office, I ensure both the receipt and package are date and time-stamped legibly. Several days later, when the package arrives, I attach the receipt to the outside of the package, and file it UNOPENED.
Now, should a dispute arise regarding who wrote or published the work first, a judge can open the package in court and settle the matter instantly.
I recently discovered the UK Patent Office suggests a similar procedure (see the UK Patent Office publication “Claiming and Enforcing Copyright” for specifics).
Please note that many unofficial copyright registrars exist also. These, for a fee, will allow you to register your work with them for up to 10 years usually. Although, in my opinion, this doesn’t provide the same degree of proof you are the work’s rightful author, just that you got there first.
A final word.
Copyright is complex, yet authors don’t have to be experts in its intricacies. Following the guidelines above will cover the basics, and when you are about to sign your multimillion dollar/euro contract for your blockbuster, this is the moment to take legal advice on your copyright as well as on the contract itself.
P.S. Not a lot of people know this:
What is the longest English word that can be spelled without repeating a letter?
Additional Comments or Questions?
More articles in the Tips & Tricks section on my website www.ericjgates.com