Guest Post: Melissa Edwards on Copyright Law

Ever wondered whether you need to register your manuscript for copyright before you send it out? Agent, lawyer, and friend to Doug the Pug Melissa Edwards has some things to tell you. Let’s learn things!

Copyright and Wrong by Melissa Edwards

Here’s the scene: you just wrote your first manuscript and you’re ready to send it out to agents to shop for representation. Congratulations! What an achievement! But before sending, your mouse poised over the send icon on your computer, you think, “uh, are they going to steal my book? I just put my blood, sweat, and tears into this manuscript and now I’m going to send it over the Internet without any protection at all?! PANIC!”

Take a sip. It’s going to be OK.

Your manuscript is protected as soon as you put it into fixed form (type it on a computer, hand write it on a legal pad, etch it into stone, etc.) The Constitution of the United States (with extra help from the Copyright Act of 1976) protects you from harm.

First, let’s get some lingo out of the way. The protection you seek for works of authorship is copyright protection. This is not the same as trademark protection, which protects a brand in commerce, and it is not the same as a patent, which protects inventions. Those are entirely different types of intellectual property law and the words are not interchangeable.

For the most basic copyright protection, all you need is a work of authorship, that is original, and fixed. Protection under the Copyright Act of 1976 will get you approximately your life plus 70-years’ worth of exclusive use. Registration with the U.S. Copyright office is not necessary for protection. Generally, your work is registered by your publisher, after it’s fully edited. If you register an unedited manuscript before you send it out to agents, it’s going to be slightly problematic to register another draft of that same work later on. That being said, you must register your copyright before you’re legally permitted to bring a lawsuit to enforce it and timely registration creates a legal presumption your copyright is valid. If you’re planning to self-publish, registration is not a bad idea.

“But what if someone steals my idea?!” Ideas are not copyrightable. If you have an idea for a novel but you haven’t written it, you have no protection. Just because you thought a book about a boy wizard would be cool in 1995 doesn’t mean J.K. Rowling infringed on your work.

You may have heard the phrase “derivative work” being bandied about. A derivative work recasts or transforms some expression from a previous work and thereby creates a new copyrightable work. You still need permission to use the underlying work—hence fan fiction is technically infringement. The exceptions to this rule include works in the public domain (i.e. when a work is so old, it’s no longer protected by copyright) and fair use.

Fair use is another often misused phrase. The courts use a four part fair use test when determining if a derivative work was fair use or infringement. These questions include the purpose of the new work (commercial v. educational?), the nature of the original work (factual v. fictional?), the amount of the portion used (heart of the work?), and the effect on the potential market for the existing work. The answers to these questions can be argued in every which way, thereby racking up the legal fees. The most famous type of fair use is parody. Be careful if you’re borrowing copyrighted material in your work—fair use is a wobbly leg to stand on! You can always seek permission from the underlying rights holder—this is called, unsurprisingly, a permission.

Last point before I bore you to tears with all this legal nonsense, authors should always keep the copyright in a publishing contract. The book should be registered in your name, not the name of the publisher.

Now go off and send your manuscript to agents without concern! (And don’t mention copyright in your query. It’s unnecessary and the mark of an amateur.)

Follow Melissa on Twitter @MelissaLaurenE

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