Copyright 101: Why it’s so Important, by Jodé Millman
What the heck is © and what does it mean?
We see the symbol everywhere; on paintings, photographs, movie credit trailers, magazines, CDs, and even inside books. Well, that little copyright bug represents a powerful tool in the writer’s arsenal. This symbol protects you, your heirs, and your work from theft and infringement, and signifies that you are the exclusive owner and author of the work.
Thanks to visionaries like Mark Twain and James Fennimore Cooper, in 1909, the United States enacted the first Copyright Statute, which recognized the necessity that artist’s works be protected as their stock-in-trade. As technological advances blossomed in the publishing, advertising, music and entertainment industries, the law has been amended. The most radical revision occurred in 1976, which is the version that protects us today.
What does the Copyright Law accomplish? The Copyright law protects a work, in our case a “Literary Work” (material contained within a book, periodical, manuscript, phono-record, film tape, disk or card), from the moment it is created. From the first letter you type on your computer, or the first syllable penned on the page, your work is protected from infringement. It makes no difference whether the work is published or unpublished, both are entitled to equal protection under the law. In fact, any derivation (abridgment, translation, etc.) of your work is protected as well. You alone, as the owner of your copyright, are entitled to reproduce, display and distribute your work for the term of your life plus seventy years.
Who does the law protect? If you are the original author and have not created a “work for hire,” you are an author entitled to protection under the law. This means that you have not created the work within the scope of your employment, and have not been commissioned for the work. Under those circumstances, the copyright belongs to your employer. Therefore, if you have been hired by a magazine to write an article, or by a publisher to write a series like Nancy Drew or The Hardy Boys, the work does not belong to you and you are not entitled to file for copyright ownership.
What exactly does the Copyright Law protect? This is perhaps the most confusing aspect of the law. The statute states that a “Literary work” is expressed in words, numbers or other verbal or numerical symbols or indicia. Huh? In plain English, the statute covers your creation as an author. It does not cover an “idea”. For example, Shakespeare’s “Romeo and Juliet” is a story about star-crossed lovers. Numerous artists, including, Leonard Bernstein’s “West Side Story”, Stephenie Meyer’s “Twilight”, and E.L. James’s “Fifty Shades of Grey” have reinvented this “idea” behind the tragedy. Each author is entitled to individual copyright protection because they have reinterpreted this universal idea in their own words. Tony and Maria’s racially charged, gang-related story set in New York City is different from the trope of warring medieval Italian families. So, in summary, your written words on the page are being protected, not the underlying idea. Generally, the law does not protect ideas, unless they are designs, inventions or processes, which are covered by the Patent Law.
Similarly, titles, phrases and slogans are also not protected by the Copyright Law. Phrases like “With a name like Smuckers, it’s got to be good,” and “Good to the last drop” are protected by the Trademark Law, because they identify goods and services in the marketplace.
Finally, the law does not provide protection for works in the “public domain”. These are works that are no longer subject to protection due to the expiration of their copyrights, or the failure to meet a requirement of the copyright law, allowing them to be used freely and without permission of the original copyright owner. Shockingly, Dostoyevksi’s “Crime and Punishment”, Robert Louis Stevenson’s “Dr. Jekyll and Mr. Hyde”, Kafka’s “Metamorphosis” and George Orwell’s “1984” all have lapsed copyrights and are available to published and reprinted without compensation to the writer’s estate. Entry into the public domain explains why you can pick up the great classics by Jane Austen, Mark Twain and Jonathan Swift for free on your Kindle and at Gutenberg.org.
There is one exception where your work can be reproduced without infringement or compensation, and that is called the “Fair Use” exception. So long as your work is being used for educational, non-commercial purposes, the law does not consider the inclusion of your work in research, scholarship, news reporting, teaching, or criticism as being a copyright infringement.
How is the work protected? It’s unnecessary to register, or deposit, your work with the U.S. Copyright Office at the Library of Congress in order to benefit from the protection of the law, however, there are several advantages to doing so. First, the date of creation will be proof positive that you are the first person in time to write your particular story. Second, if someone else writes or copies your story, this filing will help with the statutory enforcement of your rights and remedies against the infringer. Third, it’s really cool to have that Copyright Certificate of Registration hanging on your wall. It’s worth the thirty-five dollars invested in the filing fee to stake your claim on your brilliant work of art, and it’s easy to do online at www.copyright.gov. Be forewarned, there’s a backlog of filings, so you must be patient. It may take six to eighteen months to receive your certificate.
Besides filing your work with the Copyright office, you must indicate to the world that you are aware of the rights in your work. We have come full circle on our little copyright bug, ©, which must appear on your work, preferably your title page. If your work is published, the correct method of implementing the symbol is: © year author’s name, i.e.; © 2016 Jodé Susan Millman. If your work is unpublished, the correct for is Unpublished Work © 2016 Jodé Susan Millman. If you place this notice on your work, the world will be informed that you have protected yourself, and the notice can be used as evidence against any infringer.
What are the remedies for infringement under the law? If someone uses your work without compensating you or without your permission, that act is in violation of your exclusive ownership rights under the Copyright Law. You will be entitled to an injunction, actual damages and loss of profits, the infringer’s profits, attorney’s fees, and statutory damages as permitted by the law. The infringer may also be subjected to punishment for criminal infringement if they used your work for commercial gain.
This thumbnail sketch highlights the writer’s basic copyright protections available under the voluminous U.S. Copyright Statute, and the statute, filing information, and additional references can be found at www.copyright.gov.
The takeaway is that your precious literary masterpiece is protected from the moment of creation. Don’t be afraid to catch this © bug; it will immunize you, your work, and your heirs from the literary pirates of the world.
Meet the Author:
Jodé Susan Millman is an attorney practicing in New York’s Hudson Valley. She is a member of the EASL Section of the NYS Bar Association and was a contributing editor to the Kaminstein Legislative History Project analyzing the Copyright Law of 1976. She is also the author of the theatre guide, SEATS: NEW YORK, published by Applause Theatre and Cinema Books, and her debut thriller “The Midnight Call”, won a 2020 Bronze IPPY Award, was short-listed for the 2020 Clue Award and won Best Police Procedural from Chantireviews.com in 2014. It is available on Amazon and on Audible.
Best Piece of Writing Advice:
As writers, we’re eager to tell our stories, but our manuscripts often meander before we reach the inciting event that propels the story forward. New York Times Bestselling Author Steve Berry told me to “Start your story as close to the end as possible.” Identify where your story really begins and start your novel from that point in time. I keep this in mind during my writing and editing, and even though I’ve had to strike the beginning ten pages, the product is a tighter manuscript that grabs the reader from the first page.
Advice to writers dealing with rejection?
Keep writing. I know it’s a cliché, but “writing is a marathon, not a sprint.” Stay with it because mastering the craft and getting published do not happen over night. And think about other ways to get published and build your brand – like writing articles, blogging or doing book reviews. It’s not all about having a book published.
How do you feel about writing groups?
They are excellent, supportive communities for the emerging and experienced writer. If you can’t find one in your area – start one! I did and we now have over 500 members. About a dozen or two show up at our monthly meetings – or did before the pandemic. Now, we do Zoom.