You don't have to be an attorney to understand copyright law and how it protects you as a writer. In this post, I've compiled some of the most common questions authors have concerning copyright law and how their writing is protected by it. While this is not an exhaustive discussion of the topic, it should at least give you a general understanding of how copyright law works on your behalf. Let me stress that I am not licensed to practice law and if you need legal advice on copyright law or copyright infringement, you should hire an attorney well-versed in intellectual property law.
What is copyright?
Copyright is a right granted in the United States Constitution. To clarify the scope and framework of copyright law, Congress passed The Copyright Act of 1976 on October 19, 1976, as Pub. L. No. 94-553, 90 Stat. 2541.
According to the legislation, original "works of authorship," including literature, music, art, software programs, and even choreography (to name a few) are protected from reproduction, adaptation, distribution, performance and/or display by unauthorized individuals.
The current law states that a copyright exists for 70 years after the author has died. This means that the work you create—as long as you hold the copyright—is yours now (as well as 70 years after you've died) and no one can copy it, adapt it, distribute it, perform it or display it publicly without your permission.
There are some limitations to this, such as fair use, but those only exist when someone is commenting on your writing or teaching it. Fair use is its own complicated topic, with multiple lawsuits setting its precedent, and is detailed in more depth in this article.
Do I have to register with the U.S. Copyright Office to protect my work?
The short answer is no. From the moment you create a fixed copy of your work (whether a hand-written hardcopy, a printout, or saved to your hard drive on your computer), you hold the copyright to that work, by law.
The caveat to this short answer is that the burden of proof rests on you if someone should ever try to plagiarize your work as their own or reproduce it. The easiest way to ensure that you are fully prepared to face them in a court of law would be to show that you have registered the work with the U.S. Copyright Office. If you have done this, there is no question that you will win and be able to sue for damages.
As such, if you do not register, you will be unable to recover any extraordinary damages from any litigation as a result of copyright infringement. You will only be able to prevent the infringer from further use of your copyright.
However, even if you don't register the copyright with the government, you still hold it, as long as you can prove that you are the original creator. Files that are saved on a hard drive show the date they were saved. A written page can be trickier to prove. You also have to prove that the person who infringed had access to your original file, which can be especially tricky in an Internet age, when so much is available online.
Which draft of my writing is protected by copyright?
As previously stated, you immediately own the copyright to any fixed copy of your work. This means that you own the copyright to the rough draft, as well as the final draft.
Do I need to put the copyright symbol on my work before it's protected?
It doesn't hurt. Again, you own the copyright to your work, and reminding others of that fact is always a smart move. Think of this as you would those statements that trend on social media promising that if you'll copy and paste the words, the social media platform can't use your information in their data mining. Whether you copy and paste the text or not, they'll still use your information. In the same sense, whether you place the copyright symbol on your work or not, you'll still own the copyright.
Do I own the copyright to writing that someone hired me to do?
The answer to this question surprises many writers—no. According to Copyright.gov:
Ordinarily, the author is the person or persons who actually created the work you intend to register. "Works made for hire" are an exception to this rule. For legal purposes, when a work is a "work made for hire," the author is not the individual who actually created the work. Instead, the party that hired the individual is considered both the author and the copyright owner of the work.
Who owns the copyright if I created something in collaboration with another person and was paid for it?
Circular 30 from the Copyright.gov website makes it clear that in a situation like this, you are not the owner of the copyright. When Section 101 of the Copyright Act defines a "work made for hire," it includes a work prepared by an employee within the scope of his or her employment or a work specially ordered or commissioned for use
for any of the following reasons:
- As a contribution to a collective work
- As a part of a motion picture or other audiovisual work
- As a translation
- As a supplementary work
- As a compilation
- As an instructional text
- As a test
- As answer material for a test
- As an atlas
Do I own the copyright to my writing that's been published?
Whether you are publishing your work in book format, an eZine or peer reviewed journal, you're likely to be asked to sign over the copyright when the publisher accepts your work. If you sign over the "exclusive rights" to a publisher, they then own the copyright to your work. This is why it is extremely important to read over any contract you sign with a publisher. Considering all of the work you've put into writing, it's in your favor to know and understand what rights you are giving up when you sign a publishing contract.
Can I put my writing on my website if I've transferred my copyright?
According to Authors Alliance, a group of attorneys and academics focused on helping authors manage key legal, technological, and institutional aspects of authorship in the digital age,
when an author transfers copyright in its entirety to a publisher, the author may no longer be able to display it without express permission of the publisher.
Although the practice of authors transferring their copyrights to publishers is longstanding, the vagaries of copyright law and the difficulty of assessing the value of copyrighted works make it difficult for authors to anticipate the implications of signing away their copyrights—implications that can be quite dramatic. Recall that the constitutional language refers to an "exclusive right." This means that the rights that the law bestows allow copyright owners to object when anyone else does the things that the law reserves exclusively to them. Under current law, those exclusive rights include reproducing the copyrighted work, displaying it publicly, performing it publicly, distributing copies of it to the public, and preparing new works based upon it (which the Copyright Act calls "derivative works"). So if an author transfers her copyright in its entirety to a publisher (or grants the publisher an "exclusive license") only the publisher may do or authorize others to do these things. Even the author herself may no longer do them without the publisher's permission (unless her actions fall within one of the exceptions built into copyright law).
Is there a way around granting publishers exclusive copyright to my work?
Yes, and it's a good idea to negotiate these terms whenever you're signing a publishing contract. For example, there are publishing agreements that grant exclusive rights to the publisher for a limited period of time. There are others that grant exclusive rights to the publisher, but only for some media, such as hard copy, allowing an author to retain the right to reproduce it digitally.
If you anticipate the need to negotiate with a publisher over your rights and limitations to your work once it's published, you should hire an attorney who will represent you throughout the process. This will ensure that you won't be left in the dark about your rights in the future.
What if I want to make changes to my work that's already been published?
Again, according to Authors Alliance, once you hand over exclusive rights to a publisher, you've lost the right to adapt the work. Here's their description of the legal perimeters of this situation:
Copyright owners may even object to an author who wants to revise her own previous work. Depending upon the degree of similarity, the revision may count as preparation of a "derivative work," which is within the copyright owner's exclusive rights. Again, this legal layer of publisher control may not have mattered so much when authors relied on publishers to disseminate their new editions (and when copyright terms were short enough that it was possible for a publisher's copyright to expire during the author's lifetime). But today many authors might want to revise and distribute their own works but find themselves without the rights they need to do so (and no hope that they will outlive the copyright, which now lasts for the life of the author plus 70 years).
All of this is still confusing for me, what should I do?
If you're still confused about copyright law and how it pertains to you as a writer, you should seek legal counsel from an intellectual property attorney who can represent you throughout contract negotiations. Even if you do understand the basics of copyright law, laws have a tendency to change, so it's never a bad idea to know where the current law stands and how it protects you and your work.