Writers In The Storm is delighted to welcome back Susan as she kicks off her new series on copyright and rights clauses in publishing contracts.
Note: As always, Susan is open for questions down in the comments!
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As 2013 draws to a close, I’m starting a brand new #PubLaw guest series here at WITS.
Many of you have commented about your desire to take charge of your writing careers in 2014 – to launch a new year with a brand new publishing outlook. For some, that means finishing a new novel. For others, finding an agent or a publisher. For others still, 2014 will mark the launch of an independent publishing career.
Some of you may look at this list and say “yep, I’m planning all of the above.”
Whatever publishing path you choose, and wherever you are along it, it’s critical that you know your legal rights. In particular, authors need to understand the ins and outs of the rights a copyright gives them – and the ways in which a publishing contract exploits and divides those rights.
In light of that, the shiny new #PubLaw series here at Writers in the Storm will be taking a look at the various rights which fall within the larger umbrella of “copyright,” and how common publishing contract language handles each.
WHAT IS A COPYRIGHT?
In general terms, a “copyright” is a form of legal protection which covers all creative works “fixed in a tangible medium of expression.”
Copyright protection is automatic, and begins at the time of the work’s creation. A work doesn’t have to be published to acquire copyright protection.
The requirements for a valid copyright include:
1. copyrightable subject matter (for our purposes, it’s enough to know that novels and short stories qualify), which
2. meets the minimum “threshold for protection,” (generally, this means “it was actually written by the author claiming copyright,” it’s original, and it’s more than a trivial variation on someone else’s work),
3. is “fixed in a tangible medium,” (meaning it’s capable of being transmitted and/or reproduced–saving it on a computer is enough) and
4. was created, or is owned, by the person claiming the copyright.
WHAT DO I HAVE TO DO TO OWN A COPYRIGHT IN MY WORK?
Create it yourself and save it in a way that allows for transmission or reproduction to someone else. (A computer file is sufficient. So is a handwritten copy.)
Copyright automatically attaches to the work when you create it.
Registration with the U.S. Copyright Office is not required in order to own the copyright, but it is required in order to sue infringers and to obtain certain kinds of damages. For maximum protection, copyright owners should register published works within six (6) months after the initial publication date. (However, if that doesn’t happen, a copyright can still be registered at any time during its term—albeit with some potential loss of rights to certain claims and damages.)
HOW LONG DOES A COPYRIGHT LAST?
In the United States, copyright lasts for the life of the author plus 70 years, if the author is a “natural person” (meaning a human rather than a corporation or other business entity).
When the author is a business or other entity, copyright lasts for the lesser of 95 years from the date of the work’s initial publication or 120 years from the date the work was completed, whichever comes first.
WHAT RIGHTS DOES A COPYRIGHT GIVE ME?
The owner of a copyrighted work acquires a broad set of rights. The most important are:
1. The right to control copying and publication of the work, in all forms and formats, as well as all languages.
2. The right to create and control creation of all derivative works.
A “derivative work” is a work based upon the characters, plot, and (in the case of specialized worlds) settings created in the original work. Sequels qualify as derivative works, but so do film adaptations, stage plays, graphic novels, video games, apps, and merchandising rights.
3. The right to control distribution (or to prevent distribution) of the work.
4. The right to control performance and display of the work and any derivative works.
5. Moral rights, defined as the right to prevent mutilation, modification, and alteration of the work, as well as the right to ensure the author’s name is displayed on or in connection with the work. Traditionally, we don’t pay much attention to “moral rights” in the U.S.A., but they’re a fairly big deal overseas.
6. The right to sue for damages if someone violates these rights without permission.
Along with all of these rights, the author acquires the sole right to license, or grant permission, for other people or entities to exercise these rights on the author’s behalf. A publishing contract generally addresses all of these rights in one way or another—and it’s important that every author understand the various ways a publishing contract might address the different parts of the author’s copyright.
In the months to come, we’ll take a tour of common contract language and examine these various clauses in detail.
Thank you for joining me today, and thanks to Writers in the Storm for giving me the chance to share a little copyright cheer for the holidays!
If you have questions about this or any other copyright issues, please ask in the comments – I love to help!
Susan Spann is a publishing attorney and author from Sacramento, California. Her debut mystery novel, CLAWS OF THE CAT (Minotaur Books, July 2013), is the first in a series featuring ninja detective Hiro Hattori. The sequel, BLADE OF THE SAMURAI, will release in July 2014.
Susan blogs about writing, publishing law and seahorses at http://www.SusanSpann.com. You can also find her on Twitter, @SusanSpann, or on Facebook.
Thanks, Susan, for the complete explanation. I hear writers say often that they don’t need to go through the hassle of getting a copyright.
Well, yeah, if you don’t care what happens to your work. Get a copyright, people!
Registration is definitely worth the effort, Laura. Not only does it allow the recovery of attorney fees from the other side if you win an infringement lawsuit (which translates to a LOT of money), but you’re allowed certain statutory damages without proving the level of damage the infringer actually did to you. Registration can be done online at copyright.gov, and although it’s not good to register before you’re published (at least, not if you intend to publish traditionally) it’s something every writer should make sure gets done within that 6-month window.
Hi Susan! This is a very timely discussion for me as I’m preparing to submit the copyright applications for several unpublished manuscripts. One question: what happens if I acquire the official copyright and then make revisions (not just corrections but changes to the storyline). Do I have to obtain a new copyright for a “derivative work” at that point? Since these works aren’t published or even under contract to be published, there is a high likelihood there will be story changes between now and publication, so help me with the timing. 🙂 Thanks!!!
If you’re seeking traditional publication, I’d hold off on the registration because most publishers prefer to do the registration so it shows the publisher as the publishing house which contracts for the work. That said, if you make changes, you can legally apply for a derivative copyright (with another $35 fee – they charge for each application). Usually, however, if the changes aren’t substantial, the work can still be covered under the original copyright. Ultimately, it comes down to how much of the work has changed.
I’m excited you’ll be covering the lingo in agent contracts. If Power of Expectation works, I will have a need-to-know in 2014.
If I read this correctly, my rights are protected by virtue of the fact that I created them via computer documentation, and have both a paper and on-line trail. Can I assume agents/publishers would take on the more onerous task of securing formal copyright protection?
TO WITS! Waving Hi from the flipside of my Golden Heart entry. I’m back! [You have been warned.]
Yes, your publisher will normally handle the formalities of registration, and yes, you’re already covered by copyright, by virtue of the files saved on your computer. Copyright has already attached to those files. Some small publishers require the author to register the copyright rather than the publisher handling registration, but the contract will always say who handles registration, so you’ll know well in advance.
Thanks Susan. I want to put my new book on Amazon and have been wondering about copyright. I look forward to hearing more on this.
I’m with Sharla. If we put a book up on Amazon, what are the things we should do copyright-wise to keep the work “safe.” Also, what are your thoughts on purchasing ISBNs for our books?
You’ll definitely want to register copyright before putting the book on Amazon for sale – or, at minimum, the week you do it. I’m in favor of all published books (the ones that are professionally “for sale” – whether self-published or published traditionally) having an ISBN also. The ISBN’s aren’t difficult to buy, or expensive, and you can include the ISBN in the copyright registration also.
Susan, thanks for taking complicated legalese and putting it into words I can understand. It took me quite awhile to figure out how to do my copyrights with a pseudonym.
Thank you Jill! I hope you were able to figure it out – the copyright office does allow for pseudonym registration, though it can be a little tricky the first time around.
Susan, yes. The website was very helpful to explain how to do it.
Thank you Susan. SHARED!
So glad you’re starting this series. Things we should all know. Also appreciate the fact that you are explaining it in lay-man terms we can all understand. I hate lawyer talk 🙂
I’m not big on “lawyer talk” myself. I try as hard as I can to write contracts in plain English (or as close as possible, given that some words have to be used because they have legal significance), and I’m always glad to take the time to explain what the legalese means. I think we all do better when we understand our rights, and understanding the contracts is a critical part of the equation.
Reblogged this on jbiggarblog and commented:
great new series on something we should all know, our rights as authors
If you purchase your own ISBN through Bowker, you will be able to switch printers (or is it publishers) of your print book much easier. A pack of 10 is about $250.
But a further question concerns an e-book. Kindles (kdp.amazon.com) and Nooks (nookpress.com) seem to provide a free ISBN equivalent if you choose to accept it. I’m not sure there’s any benefit to using one of you own ISBN numbers for an e-book with either of these companies. No idea what’s dome with other companies like iTunes.
The advantage of purchasing ISBNs is that you can assign the same number to all of the ebook versions, whereas if you use the number Amazon and Nook assign, you have different numbers for the same “edition.” That said, Amazon and Nook assign those numbers as internal indicators to help them track the product – so it fulfills much the same function as an ISBN if you sell only through those retailers.
Reblogged this on 4writersandreaders and commented:
Excellent post for writers! ~ Bette A. Stevens
Thank you Bette – I’m glad you found it helpful.
Thank you, thank you, thank you!
Glad to help!
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So I’m late on this becuase the holidays delayed me. What if you had a book with a publisher, the you got your rights back and you’re about to republish, self-pub it? The publisher registered it (I assume) but the title is not changing.