Copyright Essentials for Writers

Copyright Essentials for Writers
by Holly Jahangiri

Twice in as many weeks, I have run across items that were clearly not written by the “writers” who claimed them as their own. I’ve had my writing stolen, “misappropriated,” used without my consent, and I’ve seen so many examples of blatant disregard by one writer for the rights of another that I tend to get just a little hot under the collar when I see it happen.

Stealing another’s work and calling it your own is plagiarism. That’s an ugly word, but so are words like cheating, stealing, and lying. It’s like taking someone else’s car and passing it off as your own. It may be a fairly common make and model, but sooner or later, someone’s going to notice the unique VIN number and turn you in to the authorities. (This is what happens when you rip off an ordinary bit of writing, or paraphrase something – putting essentially the same sentences in your own words, even though it wasn’t your own idea.) If you steal the one-of-a-kind Lamborghini that was parked in your next door neighbor’s driveway and have the nerve to tell everyone on the block what a cool, sexy new driving machine you just bought on a Yugo budget, well, you’re just stupid. (This is what happens when you have a high school education but you rip off something like Michael Crichton’s .)

Misappropriating someone’s work and giving them credit is called copyright violation. It’s still stealing, but now it’s like saying “I’m going to take your car now, park it in my driveway, and let my friends drive it without asking your permission, but I’ll be sure to tell everyone it’s really yours.” To those who think the harm is offset by the “additional exposure” given to the work or the “free publicity” given to the author, that’s like saying “Never mind that it was important to you when you bought the car that you be the first to drive it and decide to whom you wanted to loan it; we thought you’d appreciate us showing it off all around town until the new models came out.”

In recognition of the fact that this astonishing disregard of the law is largely due to ignorance, not malice, and with faith in the old adage that ignorance is curable, I’m going to explain the basics of copyright law, what it means to writers, how to avoid trampling on someone else’s rights, and how to protect yourself from the callous elephants who would trample on yours.

This article deals primarily with copyright law; however, in a broader sense it deals with ethical issues every writer should carefully consider. Trademark, patent, and other forms of intellectual property law are beyond the scope of this article. NOTHING HEREIN SHOULD BE CONSTRUED AS LEGAL ADVICE. If you have specific questions or issues regarding intellectual property law, please consult a qualified attorney in your area.

What is “intellectual property”?

Intellectual property is the product of your imagination, your creativity, your innovative thinking, your research discoveries and conclusions, or your invention.

Examples of intellectual property include:

• The design for a car’s engine;
• A new process for making disposable Latex gloves;
• A novel, a movie, a cartoon character;
• The lyrics to a song;
  
• The distinctive look of a basketball shoe;
• A photograph;
• A corporate logo.

Special legal protections under copyright, patent, and trademark laws are granted to the authors, designers, and inventors of such things.

What is “copyright”?

Copyright is a form of protection provided by the laws of the (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies or phonorecords;
• To prepare derivative works based upon the work;
  
• To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
• To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
• To display the copyrighted work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and
• In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.

(from http://www.copyright.gov/circs/circ1.html#wci)

How long does copyright last?

Your work (assuming it was created in 1978 or later) is protected for your lifetime, plus 70 years. Like any other property, you can leave it to your children, grandchildren, agent, publisher, or others in your will. In the case of a collaborative work, copyright protection extends 70 years after the last author dies. For more information, refer to http://www.copyright.gov/circs/circ1.html#hlc.

What is “fair use”?

In some cases, you may quote portions of copyrighted work without permission for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Bear in mind that “fair use” is a defense in a suit against you for infringement, and it is best to avoid being sued in the first place. The court will look at several factors to determine whether your use of another’s copyrighted material comes under the “fair use” provisions of the law.

Why did you use the material? Was it for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research? Or was it more of a commercial use – in other words, were you primarily out to make money?

What is the nature of the copyrighted work? Is it appropriate and relevant to the purposes you are claiming? Is the copyrighted work going to be lessened in its own value by your use of it? While value is generally interpreted to mean monetary worth, it is fair to note here that copyright protects an author’s right to control how, when, where, and by whom the work is used. That control, in itself, has value.

Did you use a huge chunk of someone else’s work, when maybe a sentence or two would have made your point? Did you reproduce it in its entirety? Perhaps you are writing a book review. It would be bad form to give away the ending, wouldn’t it? Because then your readers might have no reason to run out and buy a copy of the book for themselves. Is a substantial portion of your work actually just their work?

All of these are things that will be considered by a court, should you be sued for copyright infringement. Unfortunately, there are no black and white rules about what you may use, how you may use it, and how much of it you may use before it constitutes infringement. Originality is the safest course.

For these factors as set forth in the law, see “Copyright Law of the United States of America,” Title 17, United States Code, Section 107; http://www.copyright.gov/title17/92chap1.html

What is “public domain”?

Basically, any writing that is no longer protected by copyright is in the public domain. You can, for example, retell a classic fairy tale like Cinderella. But beware – Disney’s “Cinderella” is not in the public domain. You cannot use the characters, illustrations, or original plot points added by Disney to the story, because those are still under copyright. You must go back to the public domain version and create your own derivative work.

Just because something is in the public domain doesn’t automatically give you the right to use it, as noted in “What is Public Domain?” by Jerry Robinson (http://www.geocities.com/rsw-news/pubdomain.html).

It is a common, but mistaken belief that anything placed on the Internet and not somehow "copy protected" (for example, encrypted or right-click disabled) becomes "public domain." This is untrue. It’s a bit like saying that if I fail to lock my front door, you have the right to enter my house and help yourself to my belongings. The DMCA provides a bit of protection for Webmasters and ISPs; so long as they take down the infringing material once they're told it exists, and agree to serve notice to the person posting it, they won't be held liable. That's fair enough - otherwise, we'd have no one foolhardy enough to host our Web sites and blogs and what-not.

See http://ittimes.ucdavis.edu/v8n1oct99/dmca.html .

What is a “derivative work”?

It is an original work derived from (based on) another work by you or someone else. Disney’s “Cinderella” is a derivative work. Since the original Cinderella story is in the public domain, you may create your own derivative version of it; however, you may not have a cute, rotund little mouse named Gus-Gus helping Cinderella to sew pearls on the dress she is making for the Prince’s ball, nor may your story feature an ill-tempered black cat named Lucifer.

A "derivative work" is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a "derivative work."

(Title 17 Code, Chapter 1, Section 101, "Definitions.")

Examples of "derivative works" would include: a book made into a movie; a movie turned into a stage play; a second edition of a book, edited and annotated and containing extra scenes; a sculpture based on a painting, a painting based on a photograph. The Supreme Court has held that, in looking into whether a work falls under the "fair use" provisions of the law, "enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." (CAMPBELL, aka SKYYWALKER, et al. v. ACUFF ROSE MUSIC, INC.; text copied from http://supct.law.cornell.edu/supct/html/92-1292.ZS.html)

It is clear, then, that some weight is given to creativity and originality – and therein lies the fine distinction between "inspired by" and "based on." Imagine a photograph of a woman reading a book. Now, take a look at Picasso's "Tete D'une Femme Lisant," at http://www.allposters.com/gallery.asp?aid=576251&item=153351. Do you think that a photographer could argue that the painting violated his copyright in the original photo? If you transform the original so that it is a substantially new expression, with different meaning or message, then you at least have a defense against a claim of infringement. But again, it is best to stick with your own original ideas wherever possible.

Another interesting notion – since Shakespeare's "Romeo and Juliet" is in the public domain, could you run out and copyright it? No. Could you create your own work, inspired by "Romeo and Juliet," and copyright that? Of course, provided that your work adds some creative element not present in the original; in other words, so long as your work is not merely a slightly-altered copy of "Romeo and Juliet."

Chilling Effects Clearinghouse, "Derivative Works," for Internet & Society. http://www.chillingeffects.org/derivative/

Chilling Effects Clearinghouse, "Frequently Asked Questions (and Answers) about Derivative Works," Berkman Center for Internet & Society. http://www.chillingeffects.org/derivative/faq.cgi#QID382

Cook, Amy, "'Unauthorized' Writings," Writer's Digest. http://www.writersdigest.com/articles/cook_unauthorized.asp

Ovenall, Sarah, "Derivative Works." http://www.funnystrange.com/copyright/derivative.htm

What is not copyrightable?

There are many things that are not protected by copyright law. The hardest thing for many writers to accept is that ideas are not protected. You cannot copyright your brilliant idea for a story. You must first write the story, because it is your own, original expression of that idea that is protected under law. If you have a brilliant idea for a story, you’d best keep it to yourself until you do.

You cannot copyright a name, an individual word, a letter, or a symbol. Can you imagine the trouble that would cause, if you could? Be careful, though – some names, such as Coca-Cola™ and McDonald’s™, are reserved and protected under trademark law. If you use them in a story, you must use them correctly (e.g., Kleenex, not kleenex), and you may need to obtain the owner’s permission before using them at all.

Facts, such as individual listings in a phone book, the height of a pyramid, or the temperature at which water boils cannot be copyrighted.

Inventions, processes, systems of operation, and proprietary information cannot be copyrighted, although there are other protections for these things under patent and trademark law.

What can I do if someone violates my copyright?

You can sue them, of course. You can sue for actual damages (lost sales, lost royalties) and, if you’ve registered your work in the Copyright Office, you can also be entitled to receive statutory damages in addition to money for any losses you’ve actually incurred.

Unless the work has significant monetary value or you are utterly determined to pursue a lawsuit on “the principle of the thing,” it may be more satisfying and cost-effective simply to write a note explaining how wrong and immoral it is to plagiarize or violate another person’s copyright, and demand that the person immediately stop using your material. On the Internet, it can be very effective to copy the person’s ISP (because doing so puts them on notice of the violation, and if they fail to act, they become a willful violator, as well, and can be sued right along with the infringer).

Whatever you do, don’t just quietly stew about it, because unless we work to eradicate the problem through education and censure, it will only get worse. As more and more people get by with trampling on the rights of writers, artists, and other creative individuals, they develop a sense of entitlement – a sort of backwards logic that convinces them that your work is, or really ought to be, free for them to use as they see fit.

For more information, see “Copyright Law of the ,” Title 17, United States Code, Chapter 5. http://www.copyright.gov/title17/92chap5.html

Additional Copyright Information and Articles

“Copyright Law of the ,” Title 17, Code. http://www.copyright.gov/title17/

Friends of Active Copyright Education (FA©E), Copyright Society of the . http://www.law.duke.edu/copyright/face/home.htm

Harper, Georgia K., “The Copyright Crash Course,” http://www.utsystem.edu/OGC/IntellectualProperty/cprtindx.htm

Legal Information Institute, “Law About...Copyright,” . http://www.law.cornell.edu/topics/copyright.html

Library of Congress, United States Copyright Office, http://www.copyright.gov/

Masciola, Amy, “Copyright Timeline,” Association of Research Libraries, http://arl.cni.org/info/frn/copy/timeline.html

O'Mahoney, Benedict, Copyright Website, http://www.benedict.com/

Robinson, Jerry, “What is Public Domain?” Haven Publications, http://www.geocities.com/rsw-news/pubdomain.html.

Stanford University Libraries, Copyright and Fair Use, http://fairuse.stanford.edu/

Templeton, Brad, “10 Big Myths about copyright explained,” http://www.templetons.com/brad/copymyths.html

Templeton, Brad, “Linking Rights,” http://www.templetons.com/brad/linkright.html

United States Patent and Trademark Office, “What is Intellectual Property?” http://www.uspto.gov/web/offices/ac/ahrpa/opa/museum/1intell.htm

White, Claire E., “Basic Copyright Concepts For Writers,” Writers Write: The Internet Writing Journal, http://www.writerswrite.com/journal/sept97/cew2.htm

Wikepedia: The Free Encyclopedia, “Berne Convention for the Protection of Literary and Artistic Works,” http://www.wikipedia.org/wiki/Berne_Convention

Wikepedia: The Free Encyclopedia, “Copyright,” http://www.wikipedia.org/wiki/Copyright

Wikepedia: The Free Encyclopedia, “Digital Millennium Copyright Act,” http://supct.law.cornell.edu/supct/html/92-1292.ZS.html

Wikepedia: The Free Encyclopedia, “Fair Use,” http://www.wikipedia.org/wiki/Fair_use

Wired News, “A Mickey Mouse Copyright Law,” Lycos, Inc., http://www.wired.com/news/politics/0,1283,17327,00.html

Author's note: If you spot a dead link or know of an even better resource that should be included above, please send me a message.

Copyright 2003-2007 H. Jahangiri.