Basic Copyright Concepts For Writers

by Claire E. White

One of the most important legal concepts that a freelance writer must become familiar with is that of U.S. copyright law. Many misconceptions exist regarding this topic, especially on the Internet. The Internet itself poses some tricky problems regarding copyright, not all of which are settled under U.S. law. This article will address some of these basic concepts and will give some practical advice for freelance writers on protecting their work.

What Copyright Law Covers

Copyright law protects "works of authorship" which include literary works such as short fiction, short stories, novels, nonfiction articles, poetry, newspaper articles, newspapers, magazine articles, magazines, computer software, software manuals, text advertisements, manuals, catalogs, brochures, and compilations of information, such as databases. Other categories of protected works include dramatic works, motion pictures, other audiovisual works, and sound recordings. Copyright law does not protect ideas, facts, inventions, processes, systems of operations, words, names, symbols or proprietary information, although it may protect the way these things are expressed. Inventions and processes are protected under patent law. Words, names and symbols used to identify good and services are protected by trademark law. Proprietary information (information secret to a business such as customer lists) is protected by trade secret law.

How Do You Get Copyright Protection for Your Work?

The original author of a work owns the copyright to that work, unless he or she has assigned those rights to a third party. Copyright protection arises automatically, without any action taken by the author, the moment the work is fixed in a tangible form so that it is perceptible either directly or with the aid of a machine or device. For a short-story writer, the work becomes fixed as soon as the author dictates the story, writes it down or types it into the computer. The work must be "original", e.g., not based upon someone else's work. The fact that the short story may be similar to many other stories does not mean it is not "original" for copyright purposes, so long as the author did not copy the story from another source.

For works published before March 1, 1989, a formal copyright notice was required to be placed on the work in order to receive copyright law protections. That is no longer the case. For works published after March 1, 1989, no copyright notice need be placed on the work in order for full copyright protection to apply. From a practical standpoint, however, an author should always place the following notice on his or her work: Copyright © 1997 by Author's Name. All Rights Reserved. The reason for this advice is purely practical; such a notice warns people who view the work that the author takes copyright issues seriously and may have a deterrent effect upon possible infringers, especially those who are unfamiliar with the intricacies of copyright law. Furthermore, if the work carries a proper notice, in the event of a subsequent infringement lawsuit the defendant will be unable to claim "innocent infringement"--that is, that he or she did not realize that the work was protected. (A successful innocent infringement defense may allow the defendant to pay less in damages than the copyright owner would otherwise receive if the infringement was found to be unintentional.)

"Publication" has a technical meaning in copyright law. According to the U.S. Copyright statute:

"Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication."

In general, publication occurs on the date upon which copies of the work are first made available to the public.

Registering a Copyright

Given the fact that an author owns the copyright in his or her work the moment the work is fixed in a tangible form without a formal copyright notice, why bother to formally register the copyright in a work with the U.S. Copyright Office? There are several reasons to register:

To sue someone for copyright infringement the owner of the work must first register the work with the U.S. Copyright Office. You may register the work after someone has infringed upon the work, but the registration will only apply to infringements that occur after the registration. However, if you register your work within 90 days of publication, the statutory damages provisions apply to infringements before and after the actual registration.
Registered works may be eligible for statutory damages up to $100,000 and attorney's fees in successful litigation.
If the registration is made within five years from the creation of the work, it is considered prima facie evidence in a court of law.
Registration is inexpensive ($20 per work registered) and relatively simple. To register the author simply fills out the copyright application and mails it to the U.S. Copyright office with a check and a nonreturnable copy of the work (one copy if the work is unpublished and two copies if it has been published). Works that have been published must be registered within three months of the publication. This is called "mandatory deposit".

Copyright registration is considered effective the day the Copyright Office receives all the materials required for registration. Authors may copyright the name in a pen name or pseudonym by simply checking the "Pseudonymous" box on the application.

Can Foreigners Copyright Their Work in the U.S.?

Many works of foreign origin are protected by U.S. copyright law. All unpublished works, regardless of the nationality of the author, are protected in the United States. Works that are first published in the United States or in a country which has entered into a copyright treaty with the U.S., or are created by a citizen or domiciliary of a country which has entered into a copyright treaty with the U.S. are also protected and may therefore be registered with the U.S. Copyright Office. The U.S. has copyright treaties with many countries, including Australia, Canada, China, France, Germany, Japan, New Zealand, Sweden, Switzerland and the United Kingdom.

Copyright laws of individual countries vary quite a bit. Some resources to investigate include the Canadian Intellectual Property Office copyright site and an Australian copyright site maintained by the Law Foundation of NSW.

How Long Does the Copyright Last?

Works published or created after January 1, 1978 are not subject to renewal registration. For works published or registered prior to January 1, 1978, renewal registration is optional after 28 years but does provide certain legal advantages.

The length of copyright protection depends on several factors: when the work was created, who created the work, and when the work was first distributed commercially. For works created on and after January 1, 1978, the copyright term for works created by an individual is the life of the author plus 50 years. The term of the copyright for "works for hire" is 75 years from the date of first "publication" (distribution of copies to the general public) or 100 years from the date of creation, whichever expires first.

The right to enforce the copyright is owned by the owner of the copyright. Usually, that will be the author of the work. However, if an employee creates a work within the scope of the employee's employment, any work created belongs to the employer. This is called "work for hire". For example, a comedy writer for The David Letterman Show writes several jokes for the monologue. The jokes are the property of the employer, not of the comedy writer because they were written within the scope of the writer's employment. The writer does not own the copyright to those jokes, the employer does.

"Work for hire" can also occur in a freelance situation if the author signs a specially commissioned "work for hire" agreement before the development of the project. Unless an independent contractor (the writer, musician etc.) signs a specially commissioned "work for hire" agreement, the copyright to the work created will remain with the author of the work. If a "work for hire" agreement is signed, the copyright to the work created will belong to the developer of the project. For example, Production Company wishes to develop and produce a documentary film. Production Company will enter into agreements with independent filmakers, writers, and musicians to create original work to which Production Company will own all the rights. In order to own the copyright to the finished product, Production Company will enter into specially commissioned "work for hire" agreements with each person who contributes original works to the final film. "Work for hire" agreements are common in the entertainment industry as well as in ghostwriting arrangements. The author must realize that if such an agreement is signed, he or she is giving up all his or her rights in the finished product forever.

Click here for Part II of "Basic Copyright Concept for Writers" which includes discussion of copyright infringement.

PLEASE NOTE:

This article is intended to be a general summary of basic copyright concepts and may not be relied upon as a substitute for legal advice. If you have a legal matter involving copyright issues you should consult an attorney regarding the specific facts of your case.

**Claire E. White is an attorney with over ten years' experience in major law firms. She is a former instructor at the University of California at Irvine Extension and is a frequent lecturer and writer on legal and business topics including computer law, corporate law, the Internet and effective business communications.

Return to the September 1997 issue of The IWJ.