The Writer's Legal GPS: A guide for navigating the legal landscape of publishing (A Sidebar Saturdays Desktop Reference)

By Matt Knight

An essential tool for writers, agents, editors, and publishers who want to understand the legal risks and rights associated with publishing.

Overwhelmed by the copyrigh

• Language: English
• Publisher: Sidebar Saturdays
• Release date: Apr 30, 2020
• ISBN: 9781734833317

Matt Knight

Matt Knight is a San Francisco-based intellectual property lawyer and fiction writer in both the near-future and women's fiction genres. Various careers seasoned his life in North Carolina and Texas - chemist for the EPA, researcher of urinary bladder cancer, editor of the Houston Law Review, and clerk for the Civil District Court of Texas - before culminating in a fifteen-year career in California as a biotech patent litigator specializing in genetic engineering. His publications have appeared in the New York Times, San Diego Union-Tribune, IBPA Independent Magazine, and the Houston Law Review, as well as his publishing law blog Sidebar Saturdays. You can find out more about him at www.mattknightbooks.com and www.sidebarsaturdays.com.

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The Writer's Legal GPSTitle Page

Copyright © 2020 by Matt Knight

All rights reserved.

No part of this publication may be reproduced, stored in a retrieval system, distributed, or transmitted in any form, or by any means – electronic, mechanical, photocopying, scanning, uploading, recording, or otherwise – without the prior written permission of the author and publisher, except as permitted under U.S. copyright law. If you would like permission to use material from this publication, please contact the publisher at [e-mail].

ISBN: 978-1-7348333-0-0 (pb) / 978-1-7348333-1-7 (eb)

LCCN: 2020905946

Sidebar Saturdays – a division of Prose-In-Progress, Inc.

Kentfield, CA

www.sidebarsaturdays.com

www.mattknightbooks.com

Cover Design: Andrew Newman at Andrew Newman Design

Layout Design: James Ryan at Wilde Greene

Ebook Conversion: Lorie DeWorken at MindtheMargins.com

Legal disclaimer

The information in this book is general in nature, provided for educational purposes only, and does not constitute legal advice. Purchasing and reading this book does not create an attorney–client relationship between us.

My intent in writing this book was to provide you with as much accurate information as possible to give you a basic understanding of publishing law and a writer’s legal rights. Hopefully you will find the information herein useful. That said, please remember laws are always in flux, which makes it difficult to make any representations as to the accuracy, completeness, relevancy, or validity of the information in this book as it relates to the current laws and your specific legal situation. The information you glean from this book should never be substituted for advice from a licensed attorney in your state or the relevant jurisdiction related to your legal needs. When in doubt, always seek professional evaluation from a qualified lawyer in your jurisdiction for all legal opinions for your specific legal situation.

Lawyers — we like our disclaimers and caveats.

About the author

Matt Knight is a San Francisco-based writer and intellectual property lawyer with over 30 years of biotech patent litigation, trademark, copyright, and publishing law experience. He is the founder of Sidebar Saturdays, an organization with a weekly blog designed to help writers navigate legal challenges in the publishing world. If that’s not enough, because apparently he fears boredom, he also writes novels. Multi-genre, of course — near-future and women’s fiction. His publications have appeared in the New York Times, IBPA Independent, Houston Law Review, and the San Diego Union-Tribune.

You can connect with Matt, learn more about his books, and sign up for his newsletter on his website.¹ For more information about Sidebar Saturdays and to sign up for his weekly publishing law blog, see the Sidebar Saturdays² blog

Links to Publications

On a Nude Beach With My Parents, Baring Almost All. New York Times, Well Section/Family/Ties. January 2020.3

Life Story Rights: Clearance and Acquisition for Literary Works. Independent Book Publishers Association Independent Magazine. November 2017.⁴

The World of Fan Fiction: Where Creative Expression and Copyright Collide. Independent Book Publishers Association Independent Magazine. September 2017.⁵

Negotiating Editorial Control in Publishing Contracts. Jane Friedman Blog. November 22, 2016.⁶

Sidebar Saturdays – publishing law blog for writers with weekly publications.⁷

Lost Profits. Intellectually Speaking Column: San Diego Union-Tribune. July 1995.

Coy V. Iowa: The Right To Face-To-Face Confrontation. Houston Law Review. July 1989; Volume 26, Issue 04.

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1. mattknightbooks.com.

2. sidebarsaturdays.com.

3. https://nyti.ms/2TRWlrF.

4. http://articles.ibpa-online.org/article/life-story-rights-clearance-and-acquisition-for-literary-works/.

5. http://articles.ibpa-online.org/article/the-world-of-fan-fiction-where-creative-expression-and-copyright-collide/.

6. https://www.janefriedman.com/negotiating-editorial-control/.

7. http://www.sidebarsaturdays.com/.

Acknowledgments

Publishing a book requires demonic compulsion and a community of supportive people willing to look away when you get messy. Special thanks and appreciation to the following peeps for their help, support, and cooperation: Julia Gibson, Melissa Mabry, and Michele Montgomery.

And of course, mega-thanks to those who bought the book. I hope your publishing careers benefit from the legal principles and guidance in this book. Y’all are the best!

Dedication

This book is dedicated to Bill O’Brien. Put your hand on the page (or screen) and feel a high five! Thank you for your patience and support. Your humor helped me avoid Xanax, but not the wine. Everyone needs one source of self-medication, right?

Okay, Jack — put your paw up too. Best foot warmer ever.

Contents

About the author

Links to Publications

Acknowledgments

Dedication

Acronyms

Introduction

1. Copyrights

Copyright basics

Fact 1 — Copyright creation

Fact 2 — What can be copyright protected

Fact 3 — What cannot be copyright protected

Fact 4 — Ownership

Fact 5 — Publication

Fact 6 — Copyright notice after March 1, 1989

Fact 7 — Copyright notice before March 1, 1989

Fact 8 — The copyright notice

Fact 9 — When to add a copyright notice

Fact 10 — Copyright expiration

Fact 11 — Copyright registration

Fact 12 — Exclusive rights

Fact 13 — Limitations to the exclusive rights

Fact 14 — Copyright infringement

Fact 15 — The misconception of the poor man’s copyright

Fact 16 — Foreign works

Public domain

When do creative materials enter the public domain?

The work was on the Internet, so it’s public, right?

When does a copyright expire?

When is a creative work dedicated to the public domain?

Using song lyrics in fiction

Music intellectual property

How to include lyrics in a manuscript without violating copyright laws

1. Determine if the music is in the public domain

2. Determine if your use of the lyrics may be fair use

How to secure permission

1. Locate the music copyright owners

2. Seek permission

Other options

Copyright permissions — Ask for it. Don’t beg forgiveness

What is copyright permission?

Why do you need a license or copyright permission?

When to seek permission

1. Public domain

2. Fair use

How to obtain copyright permission

1. Determine who owns the copyright

2. Contact the copyright owner

3. Secure a written license or permission

Book covers and copyrights

Cover art for self-published books — Who owns the copyright for the cover of a self-published book?

Cover art for traditionally published books — Who owns the copyright for the cover of a traditionally published book?

Is it legal to use someone else’s book cover image?

How to use copyright protected images (and not violate copyright laws)

Copyright law tutorial

Obtain permission

Exceptions

1. Public domain

2. Fair use

Where to find images

Caveats and cautions

Quick recap

Public domain images — Are you legally compliant?

What is public domain?

When does an image enter the public domain?

When does a copyright expire?

When is a creative work dedicated to the public domain?

When does a creative work not meet the requirements for copyright protection?

Where to find public domain images?

Using music and film clips — Without violating copyright law

Music clips

How to find music copyright owners

Sync or master-use license fees

Other options

Film and TV clips

Fair use

Additional points for book trailers

The world of fan fiction — Where creative expression and copyright collide

1. Do your research

2. Seek permission

3. Ask yourself: Does the fair use exception apply?

4. Use disclaimers

5. Be wary of publishing commercially

International copyright protection — What’s an author to do?

The short answer

Guidelines for international copyright protection

A. Copyright protection outside the United States for creative works by U.S. citizens

B. Copyright protection within the United States for creative works by foreign citizens

Sidebar notes

Using another author’s work — Is your derivative work infringing someone’s copyright?

Derivative works defined

Types of derivative works

When permission is needed to create a derivative work

When permission is not needed to create a derivate work

1. You own the copyright

2. Public domain

3. Fair use

Copyright protection for derivative works

Orphan works — When a copyright owner is impossible to identify or locate

How to locate a copyright owner

Analyze the risk of using orphan works

Statute of limitations and fair use

Legislation

Orphan work owners

Mandatory copyright deposit — Must you comply?

What is the mandatory copyright deposit provision?

Is mandatory deposit different from the copyright registration deposit?

What are you required to submit to the Library of Congress?

What are you NOT required to submit to the Library of Congress?

What to do if you receive a Notice for Mandatory Deposit?

What happens if you do not comply?

What if you are traditionally published?

What if you are self-published?

2. Trademarks

Trademark tips for writers — How to protect your creative work

What is a trademark?

What can writers trademark?

Titles

Pen names, author names, author signatures

Literary characters

Domain names

Merchandise

Single words

Trademark registration benefits

How to register a trademark

Using someone’s trademark in your creative work

Trademark primer

Trademark infringement

Trademark dilution

To genericize or not?

Trademark tarnishment and defamation

A few trademark side notes

Trademarks for book titles — Can you get one?

What is a trademark?

When can a book title receive trademark protection?

Why trademark a book title?

Single word trademark protection – Cocky: One writer’s adjective, another writer’s short-lived trademark

Who is Faleena Hopkins?

Trademarks for single words

The take-away for trademark branding for books

What to do if you receive a cease and desist letter

3. Agents

The basics of agent–author contracts

The agent

The agency agreement

Exclusivity

Scope of agency

Term

Commissions

Royalty statements, expenses, and deductions

Agency clause

Power of attorney

Termination

Rights surviving termination

Warranties, representations, and indemnities

Assignment

Literary agents and upfront fees

4. Publishing contracts

Seven top deal points in a book publishing contract

1. Grant of rights

a) Copyright

b) Territory

c) Format

d) Subsidiary rights

e) Foreign and translation rights

f) Negotiating the grant of rights

2. Advance and payout

a) Small advances

b) Medium advances

c) Large advances

3. Royalties

a) Hardcover

b) Paperback

c) eBooks

4. Delivery date and acceptance

5. Editorial control

6. Options and right of first refusal

7. Consultation and approvals

Reduce the sting of warranty and indemnity clauses in publishing contracts

Warranty clauses

Indemnity clauses

Negotiating equitable warranty and indemnity clauses

Other options

Insurance

Publisher’s legal department

Legal representation

Negotiating editorial control in publishing contracts

Typical editing clauses you should look for

How to negotiate editing clauses

Additional points

Negotiating your own contract

How to avoid unfair delivery and acceptance clauses in a publishing contract

The delivery clause

The acceptance clause

Termination and reversion of rights in a publishing contract — Why you want it and how to use it

The termination and reversion rights clause

How to terminate a publishing contract

Merchandising rights — Do you have control?

Morality clauses, #MeToo, and publishing contracts

What is a morality clause?

Morality clause contract language

Why add morality clauses to a publishing contract?

Limitations of morality clauses

Points to consider when negotiating morality clauses

Audiobooks — Secure your rights

1. Book rights

2. Performance rights

3. Sound recording rights

4. Music rights

5. Cover art rights

Serialization rights

First and second serialization rights

Selling foreign rights — It is easier than you think!

What are foreign and translation rights?

How do I get foreign rights?

How do I know if I still own my foreign rights?

How do I sell foreign rights?

From book to screen — How dramatic rights are sold

Option

Purchase agreement

Creative control

Agents

Shopping agreements

What is a shopping agreement?

Why the switch from option to shopping?

Pros and cons of a shopping agreement

Final word

Negotiating publishing contracts— When to just say, NO!

The traditional publishing route

a) Unreasonable contracts terms

b) An inexperienced or inept publisher

The self-publishing route

5. Writing contracts

Negotiating anthology contracts

Copyrights

Grant of rights clause

Ongoing publication rights

Publishing exclusivity period

Subsidiary rights

Revisions

Payment

Marketing

Warranty clause

Creative collaboration contracts — 13 lucky elements to consider

1. How is the work divided?

2. Copyright ownership

3. Editorial control

4. Confidentiality

5. Competition

6. Decision making

7. Money

8. Attribution

9. Future work

10. Warranties and indemnities

11. Term and termination

12. Mediation/Arbitration clauses

13. Assignment

Freelance contracts — Seven key contract provisions freelance writers should never neglect

1. Scope of the work

2. Rights granted

a) Right to publish

b) Exclusivity and duration

c) Territory and language

d) Works made for hire

3. Revisions

4. Kill fees and expenses

5. Deadlines

6. Credit

7. Warranties and indemnities

Work made for hire contracts — Who owns the copyrights?

What is work made for hire?

Work created for an employer

Who is considered an employee?

How is scope of employment defined?

Work commissioned or specially ordered

Work made for hire agreements

Anthologies

Work created outside the work made for hire parameters

Duration of a work made for hire copyright

Negotiating magazine and newspaper publishing contracts

1. The work

2. Rights granted

a) Right to publish and formats

b) Exclusivity and duration

c) Territory and language

3. Revisions

4. Kill fees

5. Expenses

6. Deadlines

7. Acceptance

8. Credit and persona

9. Warranties and indemnities

The rise of graphic novels

What is a graphic novel?

Who is involved in making a graphic novel?

How are graphic novels published?

Publishing contracts for graphic novels

1. Traditional publishing agreement

2. Self-publishing agreements

Interview releases — Should you use one?

Why is a release necessary?

Get the consent in writing

How broad a release is needed?

A few more points to consider

6. Memoirs and life stories

Writing memoirs — The legal risks

Defamation

Invasion of privacy

The right of publicity

Consumer fraud and breach of warranty

How to avoid being sued for defamation, invasion of privacy, misappropriation of the right of publicity, and fraud

Life story rights — Clearance and acquisition for literary works

What are life story rights?

The legal principles of life story rights

1. Defamation

2. The right of privacy

3. The right of publicity

When to secure life story rights

Is the life story yours or someone else’s?

Is the subject of the life story dead?

Is the subject well-known?

Is the event newsworthy?

How to avoid being sued for violating someone’s story rights?

7. Liability and lawsuits

Pre-publication legal review of manuscripts

1. Does the manuscript include work created by others?

Copyright infringement

2. Does the manuscript use trademarks?

Trademark infringement

Trademark tarnishment and defamation

Trademark dilution

3. Does the manuscript involve damaging content about real people or companies?

Defamation

Invasion of privacy

4. Does the manuscript use the name, image, or likeness of a living or dead person?

5. Does the manuscript provide advice that might affect someone’s well-being (e.g. legal counsel or mental health advice or financial guidance)?

6. Does the manuscript include explicit sexual content?

Defamation — How to avoid libel in fiction

What is libel?

Libel defenses

How to avoid a libel claim?

Other related points

Invasion of privacy

Social media

Disclaimers

What is a disclaimer?

What must a disclaimer say?

Where should disclaimers be placed?

How effective are disclaimers?

Fair use

Right of privacy

How to avoid an invasion of privacy claim?

Right of publicity

How to avoid being sued for misappropriation of the right of publicity

SLAPP — Hey! Did you just SLAPP me?

What is SLAPP?

What is an anti-SLAPP statute?

COPPA — When children’s literature meets COPPA compliance

What is COPPA?

Who must comply with COPPA?

Why should this concern you?

How do you know if you need to comply with COPPA?

How to be COPPA compliant?

Additional options

Using real people, places, and corporations in your fiction — How real can you get and not be sued?

Defamation

Libel defenses

How to avoid a libel claim

Invasion of privacy

How to avoid an invasion of privacy claim

The right of publicity

How to avoid being sued for misappropriation of the right of publicity

True crime books — Legal hurdles

Courtroom evidence

Police departments

Making FOIA requests

Response time

Defamation, right of publicity, and the right of privacy

Copyright

Manuscript clearance

Using news events for your fiction

Just the facts

Defamation, right of privacy, and right of publicity

Copyright infringement and plagiarism

Content theft

Why do people steal content?

Why should you care?

What can you do?

1. Send a cease and desist email

2. Send a takedown complaint

What not to do

The shame approach

Other things to consider

Duplication detection software

Trackback and pingback notifications

Literary theft — Four things every writer should know

1. What is plagiarism?

2. What is not plagiarism?

3. How to avoid plagiarism

Careful research

Give credit

Inspiration and similarities

Internet common sense

Parody exception

Common knowledge

4. What to do if your work has been plagiarized

Internet research — Will it bring the FBI knocking?

Free speech and social media

The First Amendment

Limits on Internet speech

Publishing text messages

Copyrights

Who owns the copyright in text messages?

Can you publish the text message?

What does fair use permit?

Libel

Invasion of privacy

Paid reviews — The line between ethical and illegal

1. Advanced review copies

2. Contests, raffles, and giveaways

3. Paid review services

4. Fake reviews

General liability releases

8. The business of writing

The steps to your own self-publishing imprint

1. Choose an imprint name

2. Research your imprint name

3. Register the imprint name

4. Federal employee identification number

5. Obtain a business license

6. Set up bank accounts and credit card transactions

7. Sales tax permit

8. Create a design logo

9. Create a website

10. Trademark protection

Incorporation — What is the right option for you?

1. Sole proprietorship

2. Limited liability company

3. Subchapter S corporation

Liability

Insurance

To incorporate or not?

Media liability insurance — Do authors need it?

What is media liability insurance?

How to secure media liability insurance

Media liability insurance coverage

Legal compliance with contests, sweepstakes, and giveaways

The difference between giveaways and lotteries

Laws that regulate giveaways and lotteries

How to make your giveaway legally compliant

Elements to consider when designing your giveaway

1. The prize

2. The sponsor

3. Requirements for entering and how the giveaway will be operated

4. Duration

5. Selection of the winners

6. Official rules

7. Misleading

Social media platforms and giveaways

Tax liability

GDPR compliance

How does the GDPR change giveaways and contests?

Why should the GDPR apply to contests?

What is the penalty for not being GDPR compliant?

What if you have an existing email list?

Bottom line

Copyrights, ISBNs, LCCNs, and your self-publishing imprint

Copyrights

ISBN

LCCN

Bottom line

Selling foreign rights — It is easier than you think!

What are foreign and translation rights?

How do I get foreign rights?

How do I know if I still own my foreign rights?

How do I sell foreign rights?

Transfer of copyright ownership

Assignments

Licenses

Recordation

Moral rights

Privacy policies and GDPR compliance

Privacy policies

What qualifies as personal information?

What must a privacy policy contain?

How to write your privacy policy

GDPR compliance

What you need to know about GDPR

List of EU members

Penalty for not being GDPR compliant

Make your privacy policy GDPR compliant

Pen names — Are noms de plume obsolete?

Using pen names in contracts

Contract basics

Use proper identification in your contract

Distinguish how legal and pen names should be used

Using a fictitious business name

Using a limited liability corporation

Taxes and the writer — Tax Cuts and Jobs Act of 2017

Tax planning for writers under TCJA

Taxable income

Deductions

Hobby-loss rules post TCJA

What is deductible for business owners post TCJA?

Corporate tax cuts under TCJA

Individual tax cuts under TCJA

Estimated taxes

Record keeping

Estate planning

Every adult, whether a writer or non-writer, should have a valid will or trust

Wills and trusts each have advantages and disadvantages

Do you need both an executor and a literary trustee?

How do you structure a literary estate?

Transferring intellectual property to a corporate entity for estate-planning purposes

Sole proprietorship

Limited liability company

Subchapter S Corporation

Liability

Insurance

Transfer of assets to a corporate entity

Finding legal representation

Referrals

State bar associations

Writing organizations

9. Appendix

Resources

Copyright-protected images

Public domain images

Forms and example contracts

Acronyms

Introduction

The business of publishing is intertwined with unavoidable legal decisions, many of which can be confusing. This legal guide is designed to help writers navigate the legal thicket of publishing law in the United States so they can make informed decisions when legal problems arise.

The information in this book is based in part and expanded from articles I have posted on my Sidebar Saturdays⁸ blog, where the practice of law meets the profession of writing. The book is not meant to be read stem to stern. I designed it so you can peruse the information for help when you have legal questions about your publishing endeavors. Because of this, some sections (like defamation, right of privacy, right of publicity, and fair use) have been repeated to minimize the amount of searching needed to find answers to your questions. Please note that some links may not be current post-publication. If the link is corrupt, or if you are reading a printed version of this book, check the footnotes for more information about the referenced websites. I have also included example forms in the appendices that you might find useful.

I am going to repeat this often throughout the book — please remember that laws are always in flux. Because of that, this book comes with a few disclaimers. The information in this book is general in nature and provided for educational purposes only. Read it. Take notes. Ask me questions on my Sidebar Saturdays blog. But do so responsibly, which means: 1) the information in this book does not constitute legal advice; and 2) purchasing and reading this book does not create an attorney–client relationship between us. I have enough relationships, most of which I have trouble keeping up with already. Because this book was written to provide a basic understanding of publishing law, always seek professional evaluation when it concerns your legal rights. Regarding your specific situation, I make no representations as to the accuracy, completeness, relevancy, or validity of the information in this book as it relates to your legal issue. The legal tidbits you glean from this book should never be substituted for advice from a licensed attorney in your state or the relevant jurisdiction. When in doubt, consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation. I cannot stress that point enough.

Happy publishing!

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8. www.sidebarsaturdays.com.

1. Copyrights

Copyright basics

If you are a writer, copyright law is one of the most important legal concepts you need to understand. Why? Because copyright law provides legal protection for a writer’s creative work by preventing others from exploiting it without permission or paying fair compensation.

While copyright law can be a tad confusing, do not let a lack of knowledge on a complex topic stop you from taking advantage of the protections provided by copyright law. Here are 16 basic facts to help you get started.

Fact 1 — Copyright creation

Copyright law in the United States has its roots in the Constitution. The purpose is to promote the progress of useful arts by granting to the copyright owner for a limited time an exclusive right to their creative expression.

Copyright laws over the years have been revised to provide better protections. Under the current law, a copyright exists as soon as you fix the original work in a tangible medium of expression. It does not matter whether you write the work down with a pen, type it on your computer, or paint it with a brush. As long as the expression is tangible, the work is copyright protected.

Fact 2 — What can be copyright protected

Any creative expression that is original and tangible can be copyright protected. The creative expression need not be just words. Copyright protectable material also includes music, art, sculpture, audio-visuals, film, photography, websites, software, choreography, and architectural designs.

To qualify for protection a work must be independently created by an author and have at least some minimal amount of creativity. Originality only requires a low level of creativity, a spark of creativity. A few things, however, cannot be copyright protected (see Fact 3).

Fact 3 — What cannot be copyright protected

Titles, names, short phrases, slogans, logos, inventions, facts, ideas, and procedures — these are a few of my favorite things…that cannot be copyright protected. Trademark and patent protection, however, may exist for some of these. Trademarks protect words, phrases, symbols, logos, or other devices used to identify the source of goods or services from usage by others. I cover trademarks in chapter 2. Patents, which prevent others from making or selling an invention, are not covered in this book.

One caveat with regards to facts. While facts per se are not protectable, the way you express the facts (like how you organize, select and arrange a set of facts) can be copyright protected. For example, a compilation of facts about Star Wars movies or the world of Harry Potter would qualify for protection.

Works created by the U.S. government are also not eligible for copyright protection (those fall into the public domain for all to use for free — a gracious gift from the U.S. government).

Fact 4 — Ownership

Once your copyright-protected material is in a tangible medium of expression, it becomes a form of property that you own. If there are joint authors, each party has equal ownership in the copyright. In order for a joint work to be copyrightable, each contribution must be independently copyrightable. Ideas, directions, and suggestions are not sufficient to elevate someone to author/copyright owner status.

Like any law that governs property ownership, copyright ownership can be transferred to another person or entity by written agreement. If the work was created by an employee as part of her job duties, the work is considered a work for hire and belongs to the employer. It is not always clear whether the author was an employee or a contractor. The best way to determine employee status is if the author’s relationship with the employer was similar to a salaried job. For example, the copyright in an article written by a staff journalist is owned by the newspaper. Whereas a freelance writer without a work for hire agreement owns the copyright in anything she creates. If the work was made by a freelance writer via a work made for hire agreement, the hiring party or corporation owns the copyright. For more information, see the "Work Made for Hire Contracts" section in chapter 5.

Fact 5 — Publication

Under the current law, there is no requirement to publish the work to receive copyright protection. Protection applies to both published and unpublished works. But publication can start the clock on expiration under certain circumstances (see Fact 10). A work is considered published as soon as it is made available to the public, whether via a publisher, the Internet, or that flyer you created for your favorite political protest.

Fact 6 — Copyright notice after March 1, 1989

A copyright notice need not be added to works created after March 1, 1989 to take advantage of the protections provided by U.S. copyright law but doing so is good form. A copyright notice identifies the owner of the work and when it was created. It also puts others on notice the published work is protected (see Fact 9 about using a notice on unpublished work).

A proper notice can increase monetary damages should you decide to sue (see Fact 11). If you need information on what elements make up an official copyright notice, see Fact 8. For works created before March 1, 1989 move on to Fact 7.

Fact 7 — Copyright notice before March 1, 1989

Because of the various copyright laws over the years, notice requirements for published works before March 1, 1989 vary depending on the law at the time of publication. Before March 1, 1989, copyright notice was mandatory on all published works (as opposed to optional for later works). If the copyright notice was omitted for works published between January 1, 1978 to February 28, 1989, copyright protection was lost unless the owner corrected the problem within a designated time period. If a work was published before January 1, 1978, the Copyright Act of 1909 governed notice requirements — no notice, then all copyright protection was permanently lost.

Fact 8 — The copyright notice

An official copyright notice has three components:

the word copyright, the abbreviation copr, or the copyright symbol ©;

the copyright owner’s name; and

the year of publication.

For example, Copyright Matt Knight 2019 or Sidebar Saturdays © 2019. The name used can be either a first name or initials with a last name, or just a last name. A business can use a legally recognized trade name. For multiple or joint creators, one name is sufficient.

Fact 9 — When to add a copyright notice

If you submit an unpublished manuscript to a publisher or agent, there is no need to add a copyright notice. Copyright protection exists as soon as the work is in a tangible form. Adding a copyright notice before submitting will only make you look like an amateur. When you publish your work, definitely add your copyright notice. With books, a traditional publisher will add the copyright notice to the book prior to publication. Self-publishers should add the copyright notice to the copyright page, which is right after the title page and just before the table of contents.

Fact 10 — Copyright expiration

The life span of a copyright is long. Upon expiration, the work enters the public domain for anyone to use free of charge. Due to numerous changes to the copyright laws over the years, determining the duration of the copyright can be complicated. It all depends on when the work was created and/or what law was in force when the work was published.

Under the current copyright law, the date of creation is the date when the work was first fixed in a tangible medium. The date of publication is determined by when the work was first distributed to the public or an outlet for further distribution.

Knowing when a copyright expires allows you to take advantage of the abundance of material found in the public domain. Here are three general rules for determining copyright expiration.

1. Works created on or after January 1, 1978, copyright protection lasts for the life of the author plus 70 years, or 120 years from creation date if the date of death of the author is unknown. If the creative work is considered a work for hire and the creator is anonymous, expiration is 95 years after first publication or 120 years from the day of creation whichever comes first. Once the copyright expires, the work enters the public domain and may be used without permission.

2. Works created between 1923 and 1978 have two main durations:

anything published between 1923 and 1963 lasts for 95 years from the date of publication if the copyright was timely renewed (something that is unnecessary under the current law). Creative works in this bracket entered the public domain in 2019.

anything published from 1964–1977 expires after 95 years provided the owner affixed a proper notice (but regardless of renewal thanks to a 1992 law that automatically renewed the copyrights).

3. Works created before 1923 are in the public domain.

Here is a handy chart⁹ if you need more information.

Fact 11 — Copyright registration

Registration for a copyright with the U.S. Copyright Office is not necessary for your creative work to be protected by copyright law, but registration is required before you can file a copyright infringement lawsuit. If you want to enforce a copyright against an infringer, the copyright must be registered.

There are certain benefits to filing for a copyright. For example, if you register your work within three months after publication or before the infringing act occurs, you can get statutory damages and attorney fees should you win your copyright infringement suit. Registration is easy and can be done online.¹⁰ As of 2019, registration cost $35 (nonrefundable; $55 with credit card) and you must include a non-returnable deposit of the work being registered.

Fact 12 — Exclusive rights

The owner of a copyright receives the following bundle of five exclusive rights:

The right to reproduce the work.

This means your creative expressions cannot be reproduced by others unless they have your permission.

The right to prepare derivative works based on the copyrighted original.

This includes derivatives works like abridgments, translations, dramatizations and film versions adapted from/based on the original work.

The right to distribute the protected work.

A copyright holder has the initial right to control distribution of copies to the public. The distribution right does not continue with the copy of the protected work once it has been distributed, i.e. a copyright holder cannot control further distribution of a copy.

The right to perform the work (enough said).

The right to display the work.

This right, like the right to distribute, does not extend to a copy that has been sold by the copyright owner.

There are limitations on the above exclusive rights (see Fact 13). Just like real property, copyright is also a form of property which the copyright owner can license or sell as they see fit.

Fact 13 — Limitations to the exclusive rights

Copyright protection comes with a few limitations (and here you thought you had unfettered control over your creative expression).

1. Copyright protects only the particular words you use to express your ideas.

2. Copyright does not protect the ideas themselves, which is why you see so many Romeo and Juliet plots used in novels.

3. Copyright does not protect facts, whether scientific, historical, biographical, or the daily news.

4. Copyright does not protect uses by third parties that fall within the fair use exception allowing others to make limited use of your work without asking permission or paying you.

The law limits fair use of copyright-protected material to things such as criticism, comment, news reporting, teaching, and research.

Under the doctrine of fair use, there are four factors courts consider in determining whether a particular use is fair.

The purpose and character of the use (Is it commercial or nonprofit? Is it educational?)

The nature and character of the work. (Facts and ideas are not protected.)

The amount used in relation to the copyrighted work as a whole. (Did you use a snippet or pages?).

The effect the use will have upon the potential market or value of the copyrighted work. (Courts give this factor heavy weight).

For more information on Fair Use, use your device's search feature for this ebook.

5. Works created by the U.S. government are precluded from being copyrighted and are part of the public domain.

One word of caution — do not assume that all works published by the government are in the public domain. The government is not precluded from owning a copyright transferred to it. If the government owns it, the government can enforce it should they choose to do so.

Fact 14 — Copyright infringement

If your work is being used without your permission, you have several options. You can sue in Federal court for an injunction, which is an order to stop the infringing act. If you have registered your work with the U.S. Copyright Office (within three months of publication or before someone infringes), statutory damages and attorney’s fees are available as remedies. If you have not registered your work, only actual damages and profits are available, which may make a lawsuit financially infeasible. If the infringing use is online, use a DMCA (Digital Millennium Copyright Act) takedown notice to stop the infringing use. Basically, you send a notice to the Internet service provider hosting the infringing work and request removal. For more information on DMCA takedown notices, see the "Content Theft" section in chapter 7.

Fact 15 — The misconception of the poor man’s copyright

Mailing a copy of your printed work to yourself and never opening the package does nothing for you in terms of copyright registration and protection. This misconception, commonly known as a poor man’s copyright, is not a substitute for registration. It is a waste of time unless you want to delete your bank account by a few dollars and create more mail for the USPS. If anything, this process would give a writer proof as to when a document was written, but you get this when you save your work on the computer.

Fact 16 — Foreign works

U.S. copyright law applies to domestic and foreign works. This is due to the many multi-national treaties that agree to give copyright protection to works from countries that are signatories to those treaties. In 1988, the copyright laws were amended to their current form when the U.S. became a party to the international copyright treaty known as the Berne Convention. You should treat any creative work, regardless of the country of origin, as if it were from the United States.

Public domain

Public domain in the United States