Note: This is another article written by Fiera M. Tenkiller on Copyright Law. This is one of the best articles I have ever seen which offers other writers a very accurate idea of what copyright is really all about. One small flaw I found in the article is that, regarding copyright, we should distinguish between ideas and expressions. Expressions are copyrightable, ideas are not. A simple example can make this clear: If you buy two Algebra-I books for your children, and they both happen to be from different publishers, you will notice that both books have exactly the same ideas. Why are they both copyrighted? Because the same ideas are expressed differently in both books, THAT is what is being copyrighted. Fee’s article is a gem, and I reproduce it here with her permission.

UNITED STATES COPYRIGHT LAW: When Mickey Mouse Doesn’t Play Nice

A friend of mine who had posted some of her artistic works on her MySpace blog discovered that someone had copied them and was using them on another website. When I asked her about it she claimed “They infringed my copyright!” I had a hard time explaining to her that while some of her rights had been violated, it wasn’t so clear that in a legal sense her copyright had been infringed. Her implied right to be informed that someone intended to use her work was violated, and so was her pride. I asked her if she had registered any of the works she had posted and she said no. I told her that if she felt that she was going to lose income or some other tangible benefit from the rude borrowing of her works she should talk to a lawyer, but not to expect too much.

Many writers assume certain rights are protected by the U.S. Copyright laws that really aren’t. As they say, the devil is in the details, or more specifically, in the small print. My advice to my sister and brother writers is to study your rights carefully and become more informed about what copyright is and is not, and what it cannot do. You may be surprised that what you thought or was told was protection is actually something very different.

If a writer is intent on using U.S. Copyright for written works it is advisable to go through the effort of registering those works with the U.S. Copyright Office * and fill out the proper forms and pay the required fee. This does not guarantee full protection of those works, but it establishes a paper trail that can be useful if the writer ends up in court for example being sued by the person who borrowed the work (yes, that happens to writers more often than the other way around, believe it or not). If a writer is producing written works on a regular basis tossing out $35.00 tp $50.00 for each work can amount to a bit of cash out of the pocket. A better way is to collectively register works once every three months using U.S. Copyright Form GR. That way the writer only spends about $140 annually to register all the works produced in a given year.

Before a writer decides to take the above route a few things need to be taken into consideration:

First, is the work worth the value of registration?

If the writer has written the piece for recreation purposes, such as a poem essentially to share with friends, and has no intention of receiving monetary or other tangible benefits from it, registering the Copyright is probably not worth it. Copyright registration is not a measure of the quality of the work. It is not the same as trying to convince a good publisher to sell and distribute your work. Any piece of junk can be Copyright registered just as easily as the next great American novel.

Second, neither titles nor ideas can be copyrighted.

That’s right. Your title cannot be copyrighted. Associated with your name, the writer, the title helps to identify a particular work but that is all it does. This is true for a number of practical reasons. Consider for example how many autobiographies have been written with the title My Story and some of the reasons why are self-explanatory. The writer’s essential idea is also not copyrightable. Copyright does not protect what is in your head or what inspiration leads you to write a particular piece. This second truth is constantly being tested in courts when someone writes a blockbuster novel, and someone else who claims to have had a similar idea for story takes the successful author to court. It has happened twice to Harry Potter creator J.K. Rowling, the most recent case taking place last year in New York Federal District Court. Copyright covers only the particular expression of an idea, not the idea itself.

Third, just what harm versus benefit is actually going to be created by someone copying your work?

You the writer may not approve of someone borrowing your work without at least asking and giving you proper credit, but you have to decide if you are actually harmed in some way by their bad behavior (other than an insult to your ego) or if there is ultimately a greater benefit in how your idea is being circulated that outweighs other more personal considerations.

Copyright law talks about “Intellectual property” and sometimes this term creates more confusion than it solves. It sounds like it can be used to protect an idea, but it does nothing of the sort.

By rights anyone ought to be able to take another person’s idea and build on that idea to develop something for the public good and the advancement of common discourse. This is supposedly one of the foundations of academic freedom where someone proposes an idea, and then others explore, modify, challenge, and expand that idea (but even in academia this right gets muddled by competitive egos). The presumed benefit of copyright is that it grants the owner of the work (which as I pointed out in How to Sell Your Soul Using Copyright Law is not always the same as the creator) some control in how that work is distributed. Essentially that is all copyright really is, a way of providing the owner of a work some level of control over the work’s distribution. However, that control is not always absolute, nor is such control always beneficial to either the copyright owner or to others who might benefit from the work. In the realm of the free exchange of ideas and creativity sometimes copyright can be detrimental.

The last major overhaul in U.S. Copyright law was in 1976, with a series of amendments since then, including one passed in 2008. The Copyright Act of 1976 helped clarify some rights important to writers, most notably that even without registration it is assumed that once certain works are created (defined as actually writing them down in some sort of recordable medium such as ink and paper) it is under copyright protection. Registering it within three months of creation only creates an additional paper trail.

Now let me reclarify that term “protection” as it is understood under current Copyright law. Protection does not mean a written work is copy proof. “Protection” in this instance is a legal term granting the owner of the work some say in how that work is distributed and for what purpose. Even without registration a writer has the immediate right and choice to decide if she will sell her work to a magazine, run off copies at the nearest Kinko’s/FedEx and hand out to her friends, or post on her blog. She does not need the U.S. Federal government telling her how she wants to use her work. Perhaps clarification of what the “copy” in “copyright” means might help. It is not immunity protecting a work from the risk of being copied by someone else. It is recognition that the owner of a work may want to determine how that work is copied, or reproduced, for commercial purposes.

There is only one nearly absolutely sure way to prevent something the writer has produced will not be copied and that is to buy a very strong secure box, with a sturdy lock and store the written work inside that, and for additional protection keep that box in a vault that has a time lock and five foot thick walls that can withstand anything short of a direct nuclear strike. But if the writer is going to go to that route, why write at all? The purpose of writing, aside from things like grocery lists, is to share ideas with other people.

The Internet Age, as I mentioned in Part I, has brought its own headaches. In response to that the Digital Millennium Copyright Act (DMCA) was enacted a few years ago to address some of those issues. Like many aspects of Copyright laws and the way they have often been used or misused, this Act favors business first, most specifically Internet providers. In short what it does is protect ISPs from law suits if someone posts something on the Internet using their service that may be a violation of the Copyright law. This also covers Internet social network sites like MySpace and FaceBook. All the plaintiff can do is demand in court that the offending piece or pieces on that provider’s site be removed, and if there is found reasonable cause in a federal court the provider must remove those sites. If the provider refuses to remove the offending items can it be followed up by another suit (for non-compliance) costing the provider money. This happened with both MySpace and FaceBook last year in regard to Project Playlist and other playlists that users were posting on their profiles. The DMCA provides protection to providers if they file the name and contact information of the individual using their service with the Copyright Office of the U.S. Library of Congress and if they promptly remove, on good-faith, any item a subscriber claims is an infringement of his or her copyright. Think through how many people may subscribe to a particular service and you can see the logistical loophole in this law. However, if you insist that your particular work be filed by the provider with the Copyright Office and the provider complies you have at least the guarantee that if you see your work elsewhere that you don’t want it within that provider’s site, the provider should take it down at your request. You may also risk the provider removing your own work on your own blog or site, too, as an overreaction by the provider but that is another issue I won’t discuss here.

As I said earlier the U.S. Copyright law does not protect the writer’s idea, it just defines certain ways the owner of a written work may choose to distribute that work through copying, reproduction, and publication. It is not a magic formula that places a curse upon someone who uses another person’s work without attribution or credit or who derives some benefit by claiming the work as their own (defined as plagiarism). If you feel that your work has been plagiarized there are legal recourses, but they are expensive and complicated. The writer has to prove in court that the work: a) was created by the original author; b) was created before the alleged plagiarist used it; c) was not used with permission either by direct consent or implied; d) that a substantial portion of the work has unique attributes that can only be attributed to the plaintiff/original writer; and e) very often that the plaintiff charging copyright infringement or plagiarism has been harmed in some way by the use of their work by the unauthorized party. Sometimes the awards for statutory damages are not worth the effort because they can be as low as $750 in a U.S. Federal District Court which might not even cover attorney fees and court filing costs. There have been some cases where awards of $150,000 or higher have been granted in copyright infringement and plagiarism cases, but don’t hold your breath for that poem you posted on your blog. Chances are, even if someone “borrowed” your poem for their own blog a court will view its posting as essentially opening the poem to the public domain. U.S. Copyright law is designed more to protect commercial value of a work than its personal value.

The U.S. Copyright laws can work on a writer’s behalf, but can also screw over the writer. Those same laws can work against the writer (or anyone else) who is not wary. In 1989 the zealous lawyers working for the Walt Disney Company filed suit against the Academy of Motion Picture Arts and Sciences (the Oscar people) for copyright infringement when an actress, dressed as Snow White gave an interview in the auditorium lobby and then appeared with a chorus on stage in front of national TV to sing spoofs of popular songs. The Walt Disney Company claimed that the Academy was infringing their copyright on the Snow White character, was creating unfair business competition (with a one night, satirical performance no less), and was also diluting its trademark. Even though the character of Snow White existed literally centuries before Walt Disney issued its 1937 animated classic and Disney artists based their Snow White on the illustrations done by other book artists in the 19th and early 20th centuries the company still claimed Snow White as their exclusive property. The Academy countered in its defense that it was protected by the legal doctrine of Fair Use, which recognizes that the works of authors (or companies) can be quoted for what is defined as “transformational use” (such as literary critiques, academic use, or any other use where the quote may be used in some way to advance an idea). U.S. law has never specifically defined what Fair Use means, though it is regularly used to protect journalists who quote sources and other writers using quotes in a legitimate fashion. Fair Use is an assumed right that is sometimes recognized in courts, and sometimes not depending on context. The Academy people lost, though they made a good case for the application of Fair Use.

Ironically, the Oscars that year were broadcast on ABC, which was bought seven years later by the Walt Disney Company. Since 1996 ABC has consistently been the biggest financial loser each year among the major television networks (perhaps poetic justice for the Disney people’s avarice).

~ Fee Tenkiller

*To contact the US Copyright Office, to find out about registration and fees, go to http://www.copyright.gov/./forms.

Note: This is an article by Fiera M. Tenkiller which demystifies a lot of misconceptions so many writers have about Copyright Law, especially when it is conceived as a way to "protect authors". This is reproduced with her permission.

UNITED STATES COPYRIGHT LAW: “How to sell your soul using Copyright law”

You have written a story that you want to distribute through a commercial magazine publisher. Your manuscript is neat and properly formatted, even telling the publisher Wizass Magazine what copyright you are offering.

The editor at Wizass looks at your manuscript, really likes your story, and says “Goody, goody!” You indicate you are willing to sell Wizass “All Rights.” You thought that “All Rights” meant that you want all of your rights as an author protected. Well, here is the bad news, you just sold away all of your rights to your written work lock, stock, and barrel. Yep, my friend, you have just granted Wizass complete ownership of your story. If Wizass for whatever reason decides to delay publishing your story or even to scrub it because they decided that regardless how good the story is, it doesn’t fit with any upcoming issues they are planning, you do not have the option of taking your story elsewhere. As long as they keep the copy they sent you and do not sell it back to you, you have just cut off your options to redistribute that story, or even to revise it and take it elsewhere. If Wizass is ethical, they should pay you some fee for the story whether they use it or not, but it won’t be what you would be owed if the story is printed and your marvelous story may be doomed to an editor’s slush pile for eons never to see the light of day again.

Whoa! I hear you cry. But don’t editors sometimes resurrect stories from their slush piles at a later time?

Yes, they do, and sometimes a writer might get a surprise later to find that the magazine is finally going to publish her story. That can be a nice surprise for some writers. However, a caveat, because you indicated that you were offering “All Rights” that same editor can give your story to another writer who will do a complete rewrite and then that magazine will publish what began as your story – with someone else’s byline. Sorry, but it happens more often than you or I like to think about. What that publisher did is perfectly legal since you offered “All Rights.”

This is why knowing how copyright laws can either help you or screw you over is essential to you, the writer.

Copyright laws are not actually written to be fair. They are written to define how the game of distribution is played in the publishing world, and those laws lean heavily on the side of commercial publishers who are less interested in protecting the writer or the expansion of intellectual and artistic expression than they are in making a buck off of your hard work and genius.

My personal advice is to research your publisher carefully before submitting anything to them. Some publishers demand “All Rights.” If I were you I would avoid those publishers at all costs. They are often akin to the predators of the publishing world. When you surrender “All Rights” you surrender not only the chance to submit that same piece elsewhere, but often the right to submit revisions based on that piece elsewhere, too. And you do a disservice to the general public because by selling all of your rights to a publisher who might bury it rather than print it you deny potential readers the benefit of your ideas. If the publisher who has decided to wait publishing your story or kill it sends you a fee (sometimes called a “kill fee”) after you have discovered your mistake send the check back un-cashed and demand your manuscript returned. Once you have cashed their check the transaction is done, and done entirely in their favor. You have no remaining legal recourse once you cash their check.

And here is another lovely caveat. Suppose you have submitted your story with “All Rights” to Wizass and they do print it and pay you the fee they promised. Later you decide to write another story, not a reprint, but something which builds on the first story in some way. There is a lot of the first story in your second work, not a duplicate, but there are enough allusions to the previous work to make connections between the two stories obvious to anyone familiar with it.

You are smarter this time when you submit story numero dos to Jumpin’ Catfish Weekly, because you offer “First Serial Rights” which grants Jumpin’ Catfish the right to publish your story for the first time, after which distribution rights revert back to you. Everything is going smoothly until you get a letter from Jumpin’ Catfish informing you that they are being threatened with a lawsuit by Wizass, and you can expect to be named in the suit, too, because someone at Wizass saw your story and that noble publication is now getting ready to take you and Jumpin’ Catfish on the legal ride of your lives because according to Wizass your story is copyright infringement! Yep! Your own story is a copyright infringement because of another story that you also wrote. Remember, you sold all of the rights to your first story to Wizass.

Sound improbable? No, things like this have happened. This is an example how U.S. Copyright law does not always protect the author, but the legal owner of the written work, in this case the publisher who may or may not do anything with the original work, but is sure going to take your pants to the laundry and collect.

Remember, the Copyright laws are designed to define the rules of distribution of written, artistic, and similar creative works more than they are about the individual author’s rights. They are what they say they are (and not what some people hear when they hear the word) – copyright is the definition of the owner’s right to copy, not a protection from being copied.

Aside from First Time Rights and All Rights U.S. Copyright law also provides other options for the writer, each coming with its own benefits – and sometimes a minefield. These include:

One-time Rights. Similar to First Time Rights except that the author may simultaneously offer the same work to different publishers and each may publish that work just once. This is essentially a non-exclusive right that can sometimes work in the author’s favor. It offers the writer a wider distribution of her work through multiple publishers, the possibility of more fees, and the right to later redistribute that work or revised versions again after its initial publications.

Second Serial Rights. This grants a publisher to reprint your work after it has already been published elsewhere. This works if your work was previously licensed (I haven’t used this term here before, but essentially copyright is a form of licensing) as either First Time Rights or One-Time Rights to a previous publisher. Your boat is still sunk if you originally sold that work under All Rights.

Electronic Rights. This can cover online magazines, CD-Rom magazines and anthologies, interactive games, etc. It can even be used for some software you might write as long as you are not employed by someone such as Microsoft (Bad news. Even if you write the software as a personal project for your own purposes not related to your job on your basement PC at home, because you are employed by Microsoft or any of its subsidiaries Bill Gates’ people can still nail you for infringement of their copyright).

Subsidiary Rights. This applies more to book publishing than other types of publishing. This defines the rights of your publisher to resell your work for TV and motion pictures, translation into other languages, and those recorded books that so many commuters listen to on their way to more boring jobs than yours (Because you are a writer and they are not. Hee hee hee).

There are other forms of copyright licensing available to the writer, depending on how that writer decides is the best way to distribute her work and what she hopes will be a fair return for her efforts.

Yes, there are advantages for the writer under United States Copyright laws if she is careful. However, she also needs to realize that U.S. copyright does not actually protect her work, nor is the law always fair or flexible in her favor, nor does the law actually promote the free distribution of ideas in the public sphere and very often hinders them. Copyright can be a good thing, and very often it can be just the opposite depending on how it is applied and what is expected of it. The law gives the owner of the work (and I have explained some of those instances when the author is not the owner) a legal framework within which to distribute that work. It is a form of licensing and it does come with its caveats.

~ Fee Tenkiller