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COPYRIGHT 101 (Plus, a book giveaway!)**

March 29, 2012

**Comment on this post for a chance to win a free, signed copy of Tell No Lies or Rescuing Olivia; details below.

With the deadline for submissions to the FWA Collection drawing near (May 15), many Florida Writers Association members are furiously working on their wheel-themed short stories. A few days ago, I received an email from one such writer, asking about the rights FWA takes for a piece that is chosen for publication. Upon reading this email, it occurred to me that a discussion of basic copyright law might be helpful to readers of this blog. One caveat: nothing I say below is intended to be legal advice. I stopped practicing law some years ago and I intend to keep it that way, at least for the foreseeable future. Instead, I merely hope to dispel some of the common myths floating around on the internet about copyright.

I’ll first address the question posed in the email to me: what rights does a writer give to FWA if her story is chosen for the FWA Collection? I went straight to the source for the answer. Chrissy Jackson, President of FWA, said: “We only get first time publishing rights and reprint rights only within a reprint of the entire Collection book. The author retains the copyright.”

FWA’s policy is typical of most literary journals, who, when they accept a story for publication, ask only for first time publication rights (meaning the rights revert to the author after the first publication) and sometimes collection reprint rights. But not all publishers are created equal, so all writers should find out exactly what rights a publisher – any publisher – wants before agreeing to publication. Many post this information on their websites, but if you don’t see it, ASK.

Copyright law can get complex, but there are some basics every writer should know. The internet is full of myths disguised as facts, and unfortunately, with the power of the internet comes the power to widely disseminate wrong information. Most of what I talk about here, you can verify on the U.S. Copyright Office website, www.copyright.gov. I highly recommend that every FWA member take the time to surf the site, and in particular, review the Frequently Asked Questions section. You’ll find that each of the issues I touch on below will be explained more thoroughly there.

Myth Number 1: You have to register your work with the U.S. Copyright Office in order to have copyright protection.

Fact: Copyright protection exists the moment the work is created in fixed form (written down or recorded in some way). Registering work with the Copyright Office gives an author certain advantages (for example, if you sue for infringement and are successful, registration may make you eligible for statutory damages and recovery of attorneys fees), but repeat after me: copyright is secured automatically when the work is created. Sure, you’ll want to register any published works (indeed, most contracts provide for your publisher to handle registration for you), but it’s not necessary to register every version of your work-in-progress to have copyright protection. You’d go broke if you tried to register everything you’ve ever written.

Myth Number 2: I’ve heard that mailing my work to myself is the same as registering it with the Copyright Office.

Fact: This is sometimes called the “poor man’s copyright” and there is no validity to it. Mailing your work to yourself will neither secure your copyright (because remember, that already happened when you created it; once more, repeat after me: copyright is secured automatically when the work is created), nor will it serve as registering it. If you want to register your copyright, you will need to follow the procedure set out on the Copyright Office website.

Myth Number 3: I have a great idea for a novel (and a great title, too!) and someone told me I should get both copyrighted before someone steals them.

Fact: Sorry, someone lied to you (or else simply but unintentionally passed along bad information). Certain types of material are not given copyright protection. For a full list, see the Copyright Office website, but the two types of material writers ask about most often are: (1) ideas, and (2) titles. Neither can be copyrighted. (In certain instances, a title or name might be trademarked, but that’s a post for another day.) Don’t despair. You’ve heard it said that there are only so many story ideas existing in the world, right? And that all stories can be melted down to fit into the framework of one of those limited ideas? Well, good for you, because that means for almost anything you come up with, no one can accuse you of stealing the idea. Likewise, if you come across the title of a book you love, you can use it, too! (Though from a promotional standpoint, this could have advantages and disadvantages. But I digress . . .)

Myth Number 4: Okay, I understand my work is copyrighted as soon as I write it down, but even so, I should always put that little copyright symbol (©) on everything, especially before I pass out copies to my writing group or send some pages to an agent.

Fact: Sure, go ahead if you want to look like the consummate amateur. Here’s the thing, folks. When something gets published, yes, you’ll see the copyright symbol on it. It’s not required even in that case – not anymore (the requirement changed in 1989) – but yes, it carries certain benefits. But for unpublished works that you might disseminate no farther than your writing buddies or to an agent or publisher for consideration, it’s really not necessary. The copyright symbol is meant to give the world notice that you are the author of the work. I think it’s safe to assume that when you pass out your manuscript to your fellow workshoppers, they’ll understand (i.e. have notice) that you wrote it. Same for an agent or publisher; after all, you queried them. (In fact, they’ll be mighty pissed if you represented yourself as the author and it turns out you’re not.) When you stick the copyright symbol at the top of your work, it screams that you haven’t bothered to do your homework and have no clue about copyright law. Will you be rejected on that alone? I hope not, but do you really want the person you’re trying to impress to have a little chuckle at your perceived amateurishness?

Myth Number 5 (Part A): I can quote the lyrics from my favorite song in my novel as long as I acknowledge the artist. I see it done all the time in other novels I read.

Fact: Nope. You can quote from others’ work in your novel if you get permission. The acknowledgment is nice, but irrelevant to the issue of whether or not you’ve violated the artist’s copyright. And in my personal experience, getting permission to use lyrics from well-known songs is not easy. First, you’ll need to figure out who owns the rights to the lyrics. That may require some digging, but some places to start are ASCAP, BMI, SESAC and Hal Leonard. Once you figure out who owns the rights, you’ll need to send a request, being sure to include all of the pertinent information specified by a particular rights owner. (Come to think of it, it’s a little like following submission guidelines.) If you do get permission, you may have to pay for it, and the fees can be high depending upon the popularity of the artist and/or song.

Let’s say you don’t get permission (which is quite likely) or you simply don’t want to go to the trouble. What’s a writer to do? Short of scrapping the entire plan, remember: titles can’t be copyrighted. This means you can always reference a particular song title. Whether or not that serves your purpose is something only you can judge. In the first chapter of my debut novel, Tell No Lies, I identified by title the song that plays on a car stereo while my protagonist slow dances with the object of his obsession in a parking garage. It was the song playing when I wrote the scene, so it’s the song they had to dance to. (Free giveaway alert! Anyone who comments on this post will be entered in a drawing to win a free copy of Tell No Lies or Rescuing Olivia (your choice). Plus, if you email me the name of the song I allude to above, you’ll be entered twice, doubling your chances. Be careful – don’t include the song title in your public comment, or you’ll give it away to everyone!)

Another option is to find a quote from someone (a) who might not be as well-known, or (b) is more accessible. For my epigraph in Rescuing Olivia, poet James Richardson gave me permission to quote from one of his works. I was able to secure this permission because I discovered in my research that Mr. Richardson teaches at PrincetonUniversity, and it’s not too difficult to find the email address for a university professor.

Of course, you may have a publisher who will do all of this legwork for you, but in today’s publishing environment, I suspect that’s a perk reserved for few.

Myth Number 5 (Part B): Wait! The “fair use” doctrine allows me to quote from others’ work as long as I don’t use too much.

Fact: Says who? Be wary of stepping into the “fair use” waters. They’re deep and they’re murky. Pursuant to the “fair use” doctrine, you may be able to use limited portions of a work for such purposes as commentary, criticism, teaching, news reporting, and scholarly work and research. (Hmm, I don’t think most novels or short stories fit into any of those categories.) Even if somehow you could make the argument that your use falls into one of these types of categories, there is no hard and fast rule as to how many (or rather, how few) words constitute fair use, or a set percentage of a total document (whether yours or the artist’s) you can use, despite what you may have seen in various articles and blogs on the internet. Numerous court cases discuss the fair use doctrine, and to my knowledge, none show you the bright line separating what’s allowed from what’s not. “Fair use” is decided on a case by case basis. The considerations a court will use in determining whether “fair use” applies are codified in Section 107 of the Copyright statute, and surprisingly, they’re written in straightforward language that even a layman can read and make sense of. My suggestion, though? When in doubt, leave it out.

Despite the length of this post, I’ve only touched on a few of the key issues that writers face with respect to copyright law. Feel free to comment and ask questions. I can’t promise to have an answer, but I’ll try. And remember, don’t forget to check out the U.S. Copyright Office website.

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Julie Compton is the internationally published author of two novels, Tell No Lies and Rescuing Olivia, both from St. Martin’s Minotaur. She can be reached at julie@julie-compton.com.

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13 Comments
  1. March 29, 2012 8:10 am

    Thanks for shedding some light on this complex and important issue. As a writer, I value my own efforts to produce intellectual property and expect others to respect them as well. It follows, that I would be equally committed to honor the work of others and not wander into the quicksand of infringement.

  2. March 29, 2012 8:34 am

    It’s so important to know that song lyrics are not a free-for-all in one’s novel! In college, I started a manuscript with characters based on my favorite bands, using their lyrics throughout, and luckily someone knew enough to stop me and say, “Hello, copyright infringement!” It’s good to know what can’t be done without permission since there is very little else to limit one’s creativity.

  3. March 29, 2012 9:46 am

    My antagonist whistles AC/DC’s, “Back In Black” after a fresh kill, in my first draft of my NaNoWriMo mystery. Now that I’m rewriting it, I appreciate your timely reminder about copyright abuse and infringement. Now, what are the chances I’ll get the rights to use that tidbit of info? Thanks again.

  4. March 29, 2012 12:18 pm

    Thanks for covering these issues so thoroughly. Deborah Coty told me about the song lyric issue, so I rewrote a part of the intro to my memoir to relay the gist of the words I’d quoted, rather than the exact ones. It worked.

  5. Chris Hamilton permalink
    March 29, 2012 8:41 pm

    Hmmmm…I wrote something where I buried a few words from some song lyrics as an easter egg recently, not for publication. I’ve also worked in movie quotes and other things, because they amuse me and there are some who share my sense of amusement. It’s not a direct quote as much as a passing reference. Now I have to consider whether I can really do that.

    In the long run, the easter eggs aren’t critical path, so I supposed they can go.

  6. March 29, 2012 8:48 pm

    I ‘steal’ quotes from famous people all the time, working them into my books and dialogue. For example, “I am not afraid to die, I just don’t want to be there when it happens” is a famous Woody Allen quote I worked into a combat scene.

    I was asked how can you use that? It’s someone else’s words. Worried, I researched the context of Woody’s quote. He discovered those words spray painted in graffiti on an inner city wall. Does the graffiti artist automatically own copywrite rights? I don’t think so. Neither does Woody.

    Sometimes it is implied that words are given free to the world. For example, anything said by a politition is fair game. Those windbags have pelnty of extra words to spare. I love to quote dead people. Ha, lets see them sue me!

    But what of changing famous words, just slightly? I’m told you can use others ideas if you spoof them. I write science fiction, and my evil alien warned, “Resistance is futile, human pestilence. I alwayz wanted to stay that.” It’s legal, probably, sort of, oh of course it is.

    Write long, and prosper.

    Walt

  7. judichesley permalink
    March 29, 2012 8:50 pm

    This piece brings up some interesting and ultimately calming points for me. I am working on a travel guide that follows the characters’s journeys in another writer’s (very popular) work. Now I have an idea of exactly what issues I might run into, and where to do some research. I’ve never been one for quoting works of art or fiction, but I have been worried about using characters and events I didn’t write in a completely original work.

  8. Julie Compton permalink
    March 30, 2012 9:14 am

    Thanks, everyone, for your comments. Maureen, it can’t hurt to try (to get permission on the AC/DC lyrics). You never know.

    Chris, I have NO idea what you mean about the Easter egg! LOL! I’m imagining a plastic Easter egg with some lyrics typed on a litte piece of paper and stuffed inside, to be hidden for your kids to find. Sort of like fortune cookie. If that’s the case, I’d say you’re safe. 😉

    Walt, I’d have to disagree with you about the Woody Allen quote. If he took the words from the graffiti art, then yeah, I don’t think he’d have copyright to them. If the words were original to the graffiti artist, then yes, by writing them down, I would take the position that the graffiti artist would have the copyright. Most cases out there on this issue that I’ve run across discuss the ART in graffiti instead of the WORDS (and involve actual removing or destroying of the art), but the principle is the same. There are some who take the position that since most graffiti was unauthorized, the artist loses his/her claim to the copyright, but I haven’t done the research to know if there are cases out there where a court took this position. BUT, what if whatever the graffiti artist wrote down wasn’t original? What if HE took the words he used from somewhere else? The copyright belongs to the person who first wrote them. (There are time limits on how long copyright lasts, which I won’t go into here, but what I’m saying here assumes the limits haven’t expired.)

    Much of this is academic because in practice, graffiti is often anonymous. Did Woody Allen violate somewhat’s copyright? We’ll never know, since no one ever made claim to the phrase and sought to prove they were his/hers.

    As for the words politicians speak, they aren’t in “fixed form,” so IMO no copyright protection attaches to them. But if a politician writes a book or an essay (or even a speech given, if it’s in written form), etc. and you copy it in your novel, I’d take the case on behalf of the politician. For example, Martin Luther King’s “I Have a Dream” speech. Whether or not you agree it should be, it IS copyrighted.

    As for changing famous words, that’s a perfect example of why these things are decided by the courts on a case by case basis. Questions like “how much was changed?” “for what purpose are the words being used?” etc. would be relevant.

    • March 30, 2012 9:37 am

      This issue is a complicated at the proverbial Gordian Knot! Thanks for the various posts and the perspective each brings to the discussion.

    • Chris Hamilton permalink
      March 30, 2012 10:33 am

      An easter egg is something that I put in without drawing attention to it. If you recognize it, it’s sort of an in-joke type of thing between you, the reader, and the writer. It’s not writing, but JJ Abrams has little easter eggs all over the place. Greg Grunberg is in practically everything JJ Abrams does, usually as a bit part. You watch him walk on and say, “Hey, there’s Greg Grunberg.”

      For me, I’ll throw half a U2 lyric or a line from a movie in either my narrative or dialog. If you saw the movie or you recognize the song, you’d go “Oh, that’s from the Blues Brothers.” Or “Holy crap, thanks for the Terry Jacks (Seasons in the Sun) reference. Now that song’s stuck in my head.”

      So there’s potential for intellectual property complications, give that fair use is a slippery slope.

      • Julie Compton permalink
        March 30, 2012 2:30 pm

        I love the term “Easter egg” for that! Had never heard it before.

  9. Julie Compton permalink
    March 30, 2012 9:18 am

    Judi, if you want to write me off-blog and talk about your issue, feel free. I don’t want you to tank a whole project that might have a work-around!

  10. April 2, 2012 11:45 am

    Thank you for these basics. Very much appreciated. I’ll FB and Tweet to all my writerly friends… who are beginning writers… just like me.

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