September 29

Indie Authors & U.S. Copyright Law

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.

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About the Author

Boni is co-founder of Ingenium Books. She's author of One Million Readers: The Definitive Guide to a Nonfiction Book Marketing Strategy that Saves Time, Money, and Sells More Books.Boni is an author coach, editor, and ghostwriter. As an award-winning former Canadian television reporter, news anchor, producer, and talk show host, working under the names Boni Fox and Boni Fox Gray (it's a long story), Boni covered politics, government, the economy, health, First Nations, and crime. She won several Canadian Association of Broadcaster (CAB) awards and a Jack Webster Award for best documentary. Boni also held senior management roles in government, leading teams responsible for editorial, issues management, media relations, and strategic communications planning. Boni is co-author of Rock Your Business: 26 Essential Lessons to Start, Run, and Grow Your New Business From the Ground Up and, like any good author, has several books in progress.

Boni Wagner-Stafford

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  1. I have a small publisher who says he likes my work, calling it “ready for prime time.” He set me up with an editor that cost me a lot but really helped me. He has not committed to publishing, and has implied it would be sometime in 2020 when he could publish my novel.(I have worked with this publisher for a year, and the novel is almost ready to be published.) I have reason to distrust a few people who have seen my novel and with whom the publisher is associated. My primary concern is having someone else use my idea, which is a rather unique approach, so I’m concerned about being put off longer. My question is: If I self-publish now, what legal or other questions might I encounter if the publisher turns out to be legit, and might want to publish/republish the story a year from now?

    Reply

    1. Great questions, Duane. First of all, you own the copyright to your work as soon as it is written down, not when you publish. So, the concern about someone using your idea for their own gain doesn’t diminish just because you’ve published. While filing your manuscript with the US (or relevant) copyright office is not mandatory or required (your work is still copyrighted as soon as it is written) it can help by making it easier for you to prove your ownership of the copyright and defend your rights in court. So that’s one thing.

      The other issue is what you think you might gain, or lose, if you self-publish now and not wait until your small publisher is ready. If you self-publish now, you retain control over every aspect of your book, you keep 100% of all royalties, and you’re 100% responsible for marketing your book. If you wait for your small publisher, you need to consider how important the loss of control and loss of royalties are, weighed against the benefit you perceive to being published by your small publisher. Most traditional publishers today do not engage in marketing for their authors, so you’d be on your own in that respect anyway.

      If you wanted to self-publish now, thinking you might be able to go with your small publisher when they’re ready… you might lose the opportunity, depending on what the fine print of your contract might say. Or, you might experience such raging success in your first year that you’ll have this publisher and others scrambling to pick up the rights.

      So, it’s hard to say, definitively, what you should do. It depends on you, on your book, and what your goals are. We’d be happy to chat further about this – – feel free to schedule a discovery call with us or call us direct at 1-833-228-8467. Sounds like an interesting conundrum!

      Reply

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