Indie Authors & U.S. Copyright Law

(Post last updated: March 5, 2019) Copyright law can be a complex subject, no question. (That’s why the lawyers who specialize in handling intellectual property get paid the big bucks.) As an indie author, it’s important to know how U.S. copyright law works, and what may and may not be copyrighted.

Let’s take a look at six key concepts about U.S. copyright law that indie authors like you should understand before you write your next book.

1. When is Your Work Copyrighted?

Copyright protects original works produced by an author – as long as the works are fixed in a tangible form. Which means that in the U.S. your work is protected by U.S. copyright law from the moment of its creation, even if you have not officially registered your work with the U.S. Copyright Office.

2. Why Officially Register Your US Copyright

So, if your work is protected by copyright law even without filing it with the Copyright Office, why bother to register?

There are advantages to registering your work – and they include:

• Receive official proof of the date of your creative work
• You are entitled to receive damages as provided for in the Copyright Act if you file a claim against an infringer of your work and win the case, and
• You cannot initiate an infringement action unless you have registered and the Copyright Office has processed and ruled on your copyright claim.
• In the event you need to take legal action to defend your copyright, having filed and registered means you’ll find it much easier to have an attorney take your case.

3. How to Officially Register Your Copyright

Prior to revealing your manuscript to another individual or book publisher, it’s important to file a preregistration claim with the Copyright Office. You can do this by going to copyright.gov and registering your work. After you have finished your book and, if necessary, converted it to digital form, visit copyright.gov/eco to complete the copyright registration process. Expect your copyright number to arrive in the mail within four to six weeks.

Currently, it costs $35 to register your work with the Copyright Office.

4. How Long a Copyright Lasts

Generally speaking, copyright lasts 70 years from the time of the author’s death. There are two instances where copyright will last longer. In the case of an employee writing a work for the company or in anonymous works, copyright is effective for 95 years from publication or 120 years from the creation of the work, whichever comes first. Once these time periods have passed, the work is considered to be “public domain”, and you are free to use it. Not steal it, not plagiarize it, but use it, and provide the appropriate reference or citation.

Consider including notice of your copyright in your Will due to the fact that your ownership of the material you have written, whether it is a book or some other type of written work, can provide significant and ongoing value to your estate.

5. What Copyright Does and Does Not Protect

Copyright law does NOT protect an idea, but it does protect the expression of an idea.

Specifically, copyright does NOT protect titles or short phrases, and it does NOT protect against independent creation.

Copyright protects “original works of authorship”– those that are fixed in a tangible form. It protects against the creation, display, distribution, copying, or performance of derived works stemming from or based on the first impression of an author.

As the owner of your written work, you receive a bundle of rights over your work: the right to display, perform, or make derivative works of your original work. You may also license others to engage in these activities relative to your work.

6. What You Cannot Copyright

You are prohibited from copyrighting the following:

• United States government works and public domain works
• Titles, short phrases, names and slogans
• Lists of contents or ingredients
• Works that consist of common property, such as tables, lists, phone books, etcetera
• Facts and ideas
• Procedures, methods, and processes, and
• Discoveries and principles.

7. U.S. Copyright Law and Fair Use

Fair use is a concept that was created to allow limited and reasonable use of copyrighted works. An example of fair use would be when one author quotes a (brief) section of content from another author’s work, crediting the original author.

How do you know how much content of another writer’s work you are permitted to use without getting official permission? Great question, for which there are no simple, cut and dried answers. There are, however, several criteria you can use to help figure it out:

• Is the work you wish to use factual, or creative?
• Why do you want to use the material: what’s the purpose?
• How are you planning to use the work?
• Will your use of the work inhibit the ability of the original author to license his work?
• Will your use of the work damage the ability of the original author to monetize his work?
• Is your use of the original author’s work transformative? Does it add value to the work and repurpose it for consumption by another targeted audience?

Beyond the above questions, there are pros and cons to formally seeking permission to quote.

On the ‘pro’ side: even if you’re not able to make contact with the original copyright-holding author, the mere effort to do so may work in your favour if a legal issue ever arose. You may also be tempted to play it safe and seek permission from the author, author’s representative, or estate.

On the ‘con’ side: if you do make contact, you may awaken the sleeping bear. Which means you could find yourself dealing with requests for money to compensate them for your use of their copyrighted material, or even outright refusals for permission.

Bottom Line

We can all appreciate the value of having our own original works protected by copyright. It only makes sense to ensure we do our best to respect the copyright of other creators. If in doubt? Consult your favourite attorney who specializes in U.S. copyright law.