Thursday, January 19, 2012

Copyright (Very) Basics

By Matthew Swihart, Esq.

Before we delve into the thrilling world of the law (if you’re honest, you’ll admit “ooh, thrilling!” was the first thought that came to mind when you read the title), a proper introduction is necessary: I am Matthew Swihart. Pleased to meet you. Oh, and there should be an “Esq.” after my name, because I’m an attorney and mediator licensed in all state courts in Florida and Colorado, as well as federal court here in Colorado. I handle a wide variety of civil litigation issues, including contract and intellectual property litigation.

These articles are word-limited (not because RMFW is particularly stringent, but because we recognize there are limits to people’s attention span for legal matters), so I promise to keep these short. I can only address general questions here, so if you have more detailed questions, I urge you to seek out the counsel of the attorney of your choice.

However, I feel compelled to point out, since most of the law is fiction, writers should find it more interesting than they do. For example, the law took already fictional entities (corporations) and anthropomorphized them into citizens. Of course, there is a rational purpose behind this—so these entities could sue and be sued, since only citizens are able to drag other citizens before the court—but that doesn’t make it any less fictional. And the law is replete with other fictions, each more fantastical than the other, but all with at least an ostensibly rational purpose.

One of those fictions is copyright.

First, the boring stuff: Copyright law is governed in the United States by the 1976 Copyright Act. This is the culmination of a long line of common and statutory law, none of which is of any interest to you, unless you’re an attorney, in which case this article isn’t of any interest to you (and, really, why would you be reading it, then?). Authors in particular are further protected internationally by such succinctly-named treaties as the Berne Convention for the Protection of Literary and Artistic Works, and others.

Here, I will primarily discuss U.S. copyright laws. I could go into a long article about copyright, but (a) I don’t have the space, and (b) the federal government has already done it for me in twelve pages of can’t-put-it-down excitement: http://www.copyright.gov/circs/circ1.pdf. I will provide some brief highlights here, which answer the most basic questions I’m often asked.

What is copyright?

In its simplest form, copyright is a property ownership interest in creative works which are manifested in a tangible form. In other words, it means you can be credited for, control, and profit from your writing and art. There are exceptions, such as things not fixed in a tangible form, titles, slogans, and so on. However, many of these exceptions (but not all) enjoy protection in the form of trademarks or patents.

When is a work copyrighted?

Copyright attaches the instant you put your creative ideas in a tangible form. The WORD document you use to draft your manuscripts is sufficiently tangible, and even has a date and time stamp in the metadata which serves to help prove the moment of creation if it is ever necessary.

Do I need to register my copyright with the federal government?

The answer to this question, as with most legal questions, is, “It depends.” It depends on your purpose in registering your copyright. The 1976 Copyright Act vitiated the need to register your copyright, so formal registration is not necessary. However, it can serve as formal notice to the world, because the law accepts the (fictional) concept that two people who never met or read each others’ work can create the exact same things at or about the exact same time, and a registered copyright is prima facie notice to the world of your work. Of course, the same can be accomplished by mailing yourself a copy of your work and not opening the letter once it arrives, or simply publishing it. Self-publishers may have more interest in formal registration than other authors. If you elect formal registration, pay the money to have an attorney help you—the law is rife with traps for the unwary, and online forms were not made with your best interests in mind.

Formal registration is not a prerequisite to placing a copyright symbol (©) after your work. However, because some people will assign more value to the symbol than your name on the work (especially for items posted on the internet), it is sometimes prudent to put the symbol, your name, and the year after your work before posting online (e.g., © Matthew E. Swihart, 2012). Consider your audience and the work you are posting when deciding whether to do this. I would strongly recommend it for chapters, short stories, novellas, poems, and reprints (use the date of the original creation, not the date of the reprint), but not as strongly for standard blog posts.

It is important to note that publishers will not want you to have registered your copyright. This is because you will sign over some or all of your copyrights for a period of time to the publisher in exchange for them publishing your book, and a formal copyright registration will complicate and delay the process. Further, do not put the copyright symbol (©) on any work you submit to an agent or publisher.

But the paranoid among you need not fear: no agent or publisher wants to steal your work—though it is always wise to retain a copy of anything you send out—they will take you on if they like the concept and execution, and they will reject you if they are not fond of one or both.

3 comments:

j. a. kazimer said...

Look at you!!!! I'm so proud...of course I stopped reading after the first sentence. Law does that to me :). Kidding.

Thank you for a great post. I had no clue that publishers didn't like a formal copyright, but now that I think back to my contracts, it was an issue.

Patricia Stoltey said...

Great information, Matthew. Welcome to the CIR team.

d s sault said...

Thank you so much! I was having trouble getting to sleep...until I read this. lol

Just kidding. There are so many self-appointed "experts" in copyright law that a simple, concise description like yours is appreciated; especially with the free legal recommendation in the last paragraph.