Here is the promised guest post on copyright, very kindly contributed by Jane Collen, who asked me to add the website of her law firm, where you’ll find more information: http://www.collenip.com/. I visited the site and found it most helpful to click on “News and Events” and then on “Podcasts and Blogs” and then on the blog on copyrights. It’s wonderful for those of you who have a legal bent and like getting into the weeds.
If you have questions about the post or about other aspects of copyright or about projects you’re working on that make you wonder about copyright, you can get in touch with Jane directly in the ways she suggests at the bottom of the post, or you can post your questions here, which I’d prefer for this week, so we can all learn from them and from Jane’s answers, because she’s going to keep an eye on the blog and respond. Ta da! Here it is:
I had the pleasure of meeting Gail at the recent Author’s
Tea in Chappaqua, NY. We began chatting
and I mentioned I was a lawyer practicing in the field of Intellectual Property
– patent, trademark and copyright law, and she mentioned her readers had a lot
of copyright questions. I quickly
volunteered for the honor of doing a guest blog – two of my favorite things,
which go hand in hand: writing and copyrights!
Tea in Chappaqua, NY. We began chatting
and I mentioned I was a lawyer practicing in the field of Intellectual Property
– patent, trademark and copyright law, and she mentioned her readers had a lot
of copyright questions. I quickly
volunteered for the honor of doing a guest blog – two of my favorite things,
which go hand in hand: writing and copyrights!
COPYRIGHT PROTECTION – AUTHORS SEE THE DOUBLE EDGE OF THE
SWORD (which is still not mightier than the pen (word processor))
SWORD (which is still not mightier than the pen (word processor))
by Jane F. Collen,
The right
to a limited protection of the fruits of our creativity is so fundamental that
it is guaranteed by our Constitution.
This blog post is meant to serve as a primer on how to capture those
rights bundled into Copyright, without inadvertently trespassing on anyone
else’s rights, and does not serve to provide legal advice.
to a limited protection of the fruits of our creativity is so fundamental that
it is guaranteed by our Constitution.
This blog post is meant to serve as a primer on how to capture those
rights bundled into Copyright, without inadvertently trespassing on anyone
else’s rights, and does not serve to provide legal advice.
Beginning at the source, Article 1
Section 8 states “Congress shall have Power. . . To Promote the Progress of
Science and useful Arts, by securing for limited Times, to Authors and
Inventors, the exclusive Right to their respective Writings and Discoveries.”
Section 8 states “Congress shall have Power. . . To Promote the Progress of
Science and useful Arts, by securing for limited Times, to Authors and
Inventors, the exclusive Right to their respective Writings and Discoveries.”
In order to
be protectable by copyright, a work must be an original work, fixed in any
tangible medium of expression. The
protection covers the work – whether it is a novel, a picture, a photograph, a
motion picture, a dramatic work, a dance, sculpture, music, sound recording or
architectural work—it does not cover the idea behind it.
be protectable by copyright, a work must be an original work, fixed in any
tangible medium of expression. The
protection covers the work – whether it is a novel, a picture, a photograph, a
motion picture, a dramatic work, a dance, sculpture, music, sound recording or
architectural work—it does not cover the idea behind it.
There is no
way to protect the idea with a copyright. (That is the job of patents – a much
more complex form of protection.) We can
protect what we call it (that is the brand or the source indicating language by
a trademark registration), how we present or perform it, how we write about it
and how we manufacture it. But we cannot
we protect the title of a book, or characters.
You CAN protect the brand of a series of books (I am working on book
three of the Enjella™ Adventures) but not the title of a single creative
work. Nor can you completely protect the
plot of the book.
way to protect the idea with a copyright. (That is the job of patents – a much
more complex form of protection.) We can
protect what we call it (that is the brand or the source indicating language by
a trademark registration), how we present or perform it, how we write about it
and how we manufacture it. But we cannot
we protect the title of a book, or characters.
You CAN protect the brand of a series of books (I am working on book
three of the Enjella™ Adventures) but not the title of a single creative
work. Nor can you completely protect the
plot of the book.
Therefore,
sometimes it is not easy to establish if the work is an “original work of
authorship”. To be original, the work
must be produced by “the author’s own intellectual effort,” as opposed to
merely copying a preexisting work. But
it does not necessarily have to be novel (meaning new, innovative); it just
must have an appreciable amount of creative authorship. Usually, however, the level of creativity
required is exceptionally low. You
can’t protect a one word “composition” or a short bumper-sticker phrase. But
just about anything else you write will be original, as long as you’re not
copying the writing of someone else. The
best example of work which may not qualify for originality purposes may be just
compiling a list, for instance. As the courts see it, “the sweat of the brow”
that you put into your work won’t necessarily make it original. But writing just about anything in your own
words satisfies “originality”. The gamut of protection runs from courts finding
a compilation of non-protectable facts is copyrightable if it “features an
original selection and arrangement of facts” to finding even an original
expression not protectable “when there is essentially only one way to express
an idea”.
sometimes it is not easy to establish if the work is an “original work of
authorship”. To be original, the work
must be produced by “the author’s own intellectual effort,” as opposed to
merely copying a preexisting work. But
it does not necessarily have to be novel (meaning new, innovative); it just
must have an appreciable amount of creative authorship. Usually, however, the level of creativity
required is exceptionally low. You
can’t protect a one word “composition” or a short bumper-sticker phrase. But
just about anything else you write will be original, as long as you’re not
copying the writing of someone else. The
best example of work which may not qualify for originality purposes may be just
compiling a list, for instance. As the courts see it, “the sweat of the brow”
that you put into your work won’t necessarily make it original. But writing just about anything in your own
words satisfies “originality”. The gamut of protection runs from courts finding
a compilation of non-protectable facts is copyrightable if it “features an
original selection and arrangement of facts” to finding even an original
expression not protectable “when there is essentially only one way to express
an idea”.
Copyright protection
actually conveys more than just one right.
The author has the right to reproduce her work, prepare derivative
works, distribute copies of the work to the public (by sale, or lease, or
rental or lending), perform the work publicly, display it publicly and perform
it publicly by means of digital transmission.
As you can imagine there have been all kinds of lawsuits concerning the
definition and extent of these rights. The
Copyright Law was recently revised (1998) to make the rights clear in the digital
millennium. In fact the revised law is
called The Digital Millennium Copyright Law.
(Our forefathers did not foresee ebooks – as omniscient as they seemed
to be.)
actually conveys more than just one right.
The author has the right to reproduce her work, prepare derivative
works, distribute copies of the work to the public (by sale, or lease, or
rental or lending), perform the work publicly, display it publicly and perform
it publicly by means of digital transmission.
As you can imagine there have been all kinds of lawsuits concerning the
definition and extent of these rights. The
Copyright Law was recently revised (1998) to make the rights clear in the digital
millennium. In fact the revised law is
called The Digital Millennium Copyright Law.
(Our forefathers did not foresee ebooks – as omniscient as they seemed
to be.)
“For how
long do these rights last?” you ask.
For works created on or after January 1, 1978 for individual authors,
copyright protection lasts for the life of the author plus 70 years. (This term was just recently extended from
author’s life plus 50 years by the 1998 revision). For corporate authors, the term was extended
to 120 years after creation or 95 years after publication.
long do these rights last?” you ask.
For works created on or after January 1, 1978 for individual authors,
copyright protection lasts for the life of the author plus 70 years. (This term was just recently extended from
author’s life plus 50 years by the 1998 revision). For corporate authors, the term was extended
to 120 years after creation or 95 years after publication.
The author
owns the copyright. Simple, right? Not so fast!
What about your web site that you paid a graphic designer to create copy
and art for? Do you own that? Are you sure?
There is such a thing as a “work for hire” if someone is explicitly
hired to prepare a work, then the employer, or person who hired the author owns
the copyright. But sometimes it is
difficult to establish that the arrangement truly is a work for hire.
owns the copyright. Simple, right? Not so fast!
What about your web site that you paid a graphic designer to create copy
and art for? Do you own that? Are you sure?
There is such a thing as a “work for hire” if someone is explicitly
hired to prepare a work, then the employer, or person who hired the author owns
the copyright. But sometimes it is
difficult to establish that the arrangement truly is a work for hire.
A work for
hire usually is defined as a work prepared by an employee within the scope of
his or her employment; or a work specially commissioned for use as a
contribution to a collective work. Are
you thinking author/illustrator? Well,
you are right, but unless the parties agree in a written instrument signed by
each party that the work shall be considered a work for hire, the illustrator,
even if hired by the author, probably still has the right to make derivative
works and reproduce the illustrations apart from the published book.
hire usually is defined as a work prepared by an employee within the scope of
his or her employment; or a work specially commissioned for use as a
contribution to a collective work. Are
you thinking author/illustrator? Well,
you are right, but unless the parties agree in a written instrument signed by
each party that the work shall be considered a work for hire, the illustrator,
even if hired by the author, probably still has the right to make derivative
works and reproduce the illustrations apart from the published book.
And to add
to your agita, websites created by independent contractors are NOT considered
works for hire, so if you don’t want anyone else to have the same logo as you
and the same web design, you must be sure to require a written copyright assignment
from your web designer.
to your agita, websites created by independent contractors are NOT considered
works for hire, so if you don’t want anyone else to have the same logo as you
and the same web design, you must be sure to require a written copyright assignment
from your web designer.
Gail
recently featured an interesting audio clip from NPR about the fact that the
song Happy Birthday still enjoys copyright protection. Even though the music, originally composed by
the Hill sisters who were savvy enough to obtain copyright protection, just
recently went into the public domain, the words are still protected since the
copyright was assigned to a publishing company.
Which leads me to my point – copyrights are transferable by written
agreement.
recently featured an interesting audio clip from NPR about the fact that the
song Happy Birthday still enjoys copyright protection. Even though the music, originally composed by
the Hill sisters who were savvy enough to obtain copyright protection, just
recently went into the public domain, the words are still protected since the
copyright was assigned to a publishing company.
Which leads me to my point – copyrights are transferable by written
agreement.
These days
it is possible to claim copyrights in a work simply by putting the author’s
name and the date on the (ideally) first publication or public
display/performance of the work. Unlike
the old days, it is not necessary to register the copyright with the Library of
Congress. But registration brings
additional rights, and makes the copyrights more easily enforceable. Hence the double-edged sword – be careful
where you garner your ideas and your material – there are only limited
circumstances that allow you to use copyrighted material without permission of
the author, like for educational purposes, news, or parody. You cannot use any copyrighted material for
your own economic benefit. The simple
rule: Always make sure your work reflects your own creative intellectual
effort.
it is possible to claim copyrights in a work simply by putting the author’s
name and the date on the (ideally) first publication or public
display/performance of the work. Unlike
the old days, it is not necessary to register the copyright with the Library of
Congress. But registration brings
additional rights, and makes the copyrights more easily enforceable. Hence the double-edged sword – be careful
where you garner your ideas and your material – there are only limited
circumstances that allow you to use copyrighted material without permission of
the author, like for educational purposes, news, or parody. You cannot use any copyrighted material for
your own economic benefit. The simple
rule: Always make sure your work reflects your own creative intellectual
effort.
Any questions? Gail has invited me to stay tuned to help you
process this information. And you can
always reach me through the website for my Enjella™ children’s book series – www.enjella.com, or jane@enjella.com.
process this information. And you can
always reach me through the website for my Enjella™ children’s book series – www.enjella.com, or jane@enjella.com.
Athira Abraham says:
This was very helpful!!!! Thanks a bunch, Jane. I do have a question that I have previously asked on this blog but I had no definite answers. Here is the question:
My best friend who is an aspiring writer was interested in doing a Fairies Book like Gail did, but into a novel. She was wondering if it was OK to let the fairies live in a tree, be around the size of your hand, and all have different talents without it actually being the Disney Fairies, so no Tinker Bell or Vidia or anyone else in the Disney Books? Or would that be exactly the same as the Disney Version?
And if you are writing a fantasy story with a setting of four regions of the seasons- winter, spring, summer, and fall- would that also be too much like Pixie Hollow?
If you know, please respond. My main problem is knowing about copyrights for movies. An idea might be really cool (like Rapunzel having magical hair in TANGLED, the enchanted household objects in BEAUTY & THE BEAST, the sister queens in Tim Burton's ALICE IN WONDERLAND etc.), but I don't know how much of it will be copyrighted material.
A.A
Enjella says:
HI AA — I have been thinking about your questions and i think the reason that you haven't gotten definite answers to them is because copyrights flow from creativity fixed in tangible form. The ideas you are asking about are not in any tangible form — it is hard to know in the abstract how much similarity to current fairies will prevent the characteristics of your friend's fairies from being new and distinctive. It depends on the whether the finished product shows "an appreciable amount of creative authorship".
Movies are copyrighted. You can assume that all current movies have current and valid copyrights in the name of the studios that make them that will last for at least 70 more years. However, no one owns an idea — think about how many Cinderella stories there are – from fantasies to "Arthur", so you are free to take your ideas from different sources and combine them into something new and creative.
hope this helps! jane
Jennaral Lee says:
Thank you for the post!
This part: "Usually, however, the level of creativity required is exceptionally low" explains a lot. I've always felt like Christopher Paolini, author of THE INHERITANCE CYCLE, has some copyright issues, and I've wondered how it could possibly have been considered original. I guess they thought enough of his ideas were his own for it to be okay, even though I still don't like all the similarities to Tolkien.
What about names, though? Paolini used names that were sometimes only a letter off from being one of Tolkien's names, and I've also heard of a book called LUTHIEN'S QUEST. It makes me wonder: are original names like that also copyrighted, or not?
By the way, this is one of the many things I love about your books, Mrs. Levine. So much fantasy is extremely derivative, but yours is always fresh and new.
Jenna
gailcarsonlevine says:
Thank you!
Enjella says:
This is really general — but -Characters and their names are tricky to protect– You cannot copyright the character or the name itself — you can protect the drawing of the character, the book, the movie or the cartoon it appears in, but not character — unless you use the character or the character's name as a brand. And using it as a brand means using it as an indicator of the source of some goods or services. For example the character name of RONALD MACDONALD is protected as a brand in connection with providing the services of kids camps and printed educational material.
– jane
writeforfun says:
Jane – thank you SO MUCH for this post! It was really helpful! I've always been a little uneasy about whether or not I'm breaking the law by using a certain idea or writing in a certain way, and this post has cleared just about all of that up!
I have a question that, I'm sorry, doesn't have anything to do with writing – will you answer it if you can anyway, please? I'm an artist, and I always use reference photos to draw from. Is it against the law to draw a picture based on a photo you found on the internet, and then sell the drawing? What if I change certain parts of the image, like the background or the color of something – would that still be copyright infringement? I've tried to look up photo copyright laws before, but I think I was more confused afterwards than I was before! Thanks for your help, and for your lovely post!
Enjella says:
Hi Writeforfun! So glad you liked the post. As to your reference photo question — it depends on the source of the photo. If the photo is in the "public domain'" either because it never had any author attach copyright rights to it or because the rights have expired you are free to draw from it (i.e. make a derivative work) Or if you purchase or lease a photo from a stock photo seller or licensor, you can use whatever rights you paid for. But i would say, as a general rule, if you are just finding photos on the internet it is more likely than not that you are infringing on someone's copyright rights. Don't forget a copyright is actually a bundle of rights, one is the exclusive right to reproduce it for commercial gain, and another is the right to make derivative works.
writeforfun says:
Thanks! That really helps!
writeforfun says:
And one other question. Is it illegal to use a phrase in your book that came from someone else's book? After reading your post, I'm guessing that it's fine, but I just thought I'd check:) It's not that I've ever done it on purpose, but one time I wrote a line that was really clever, and later I realized that I had read the line before in a book. I guess the line came back into my subconscious without me realizing that someone else had said it first and made its way into my writing. Yes, I did go back and fix it, but I was just wondering – if there were a very distinct, clearly copied line like that that showed up in a published book, would it be against any copyright laws? Or are people free to use others' lines in their own books? Not that I would ever do that on purpose – I'm just curious!
Enjella says:
If you "borrow" people's phrasing, you should always try to give them credit. After all, that's why Shakespeare is still the most quoted author — he knew how to turn a phrase! Its fine to admire the clever writing but maybe you can come up with even more of a well written phrase if you emulate their technique rather than inadvertently copy their words.
jane
writeforfun says:
And thanks again!
MistyBen says:
This was very informative but raised some questions. I am writing a historical fiction based in a real place, using some real events, and some real people. However, the information about the history of this location is quite guarded. For example I had to visit, pay, and take a guided tour to get a lot of the historical facts I was looking for. No recording was allowed so I mentally retained the information from the tour and wrote it down later. There was a museum where I was able to take notes. While I am taking creative liberties with the names, dates and events, this historical landmark doesn't own the information of its history, does it? They have been careful not to post it online. Isn't history open to everybody?
Enjella says:
Hi Misty Ben –The good news is YES! History is open to everybody. The history of what happened in any place or time is open for all to discover. However, you do have to garner the information from somewhere — so be sure that if it is newspapers, history books, or people's journals you check to see if there are any rights in the way the facts are expressed, and when necessary, give credit to the source. You should be able to use the underlying historical events to create your own historical fiction. In most cases, if the history is combined with fictional characters and events of your own creation, there should not be any copyright problems. (Perhaps the "no recording" rule at the landmark you visited referred to wanting to protect how they told the story of the history of the site.) jane