The Truth Behind Popular Copyright Myths
By Susan Spann | June 26, 2017 |
Flickr Creative Commons: Dennis Skley
Copyright law can seem confusing, but authors need to know the basics—especially when (and whether) to register a copyright, and what to do when using a pseudonym. As a publishing lawyer, I work with copyright issues (and authors) all the time, and today, I thought I’d take a closer look at some popular myths about copyright law and how it applies to novels and other creative works.*
Myth #1: You have to register copyright in order to own the copyright in your work.
False. Registration with the U.S. Copyright Office is not a legal requirement for copyright ownership. Copyright attaches to “qualifying works**” automatically at the time of their creation. However, copyright registration is generally required in order to file a lawsuit against infringers, and to claim certain benefits under the U.S Copyright Act, so authors should register copyright within three months of a work’s initial publication.
(**Short stories, novellas, novels, anthologies, poetry, and similar fiction and non-fiction works all generally qualify for copyright protection.)
Myth #2: Authors benefit from copyright registration.
True! Copyright registration gives copyright holders significant benefits under U.S. law. Among them:
- The right to sue infringers to stop infringement (and recover damages).
- The right to collect “statutory damages” (money, in an amount established under the copyright act) for infringement, even if the infringer did not make substantial profits from wrongful use of the copyrighted work.
- The right to recover attorney fees against an infringer in a successful lawsuit.
Many of these benefits are available only if a work is registered in a timely manner, meaning within three months of initial publication. However, some benefits (such as the right to sue to stop infringement) are available regardless of the timing of registration.
Myth #3: A book is not “published” for copyright purposes if you give it away for free.
False. Under the Copyright Act, “publication” means “the distribution of copies . . . of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending,” or “offering to distribute copies of the work to a group “for purposes of further distribution, public performance, or public display.” (17 U.S.C. Section 101)
The Copyright Act does not require that the author make any money (or profits) on sales before a work is considered “published.”
Also, the Copyright Act does not distinguish between self-published works and those published by a third-party publishing house. Published is published, regardless of the method the author chooses.
Myth #4: If you don’t register the copyright before publication, you can never register at all.
False. To maximize legal rights in the work (including the right to claim attorney fees and statutory damages from infringers), the copyright should be registered within 3 months after the date of the work’s initial publication. However, authors (or publishers) can register copyright in a qualifying work at any time—even after the initial three-month window.
Registering copyright more than three months after initial publication may result in the loss of certain statutory protections, but others (like the right to sue infringers) can be secured at any time by registering the copyright with the U.S. Copyright Office.
Myth #5: Authors should register copyrights before querying agents or submitting their work to publishers.
False. The registration trigger is publication, not querying.
Authors sometimes think they should register copyright to protect the work from being stolen by agents or publishers. However, reputable agents (and publishers) do not steal projects from authors. It costs far less (and involves less risk) to simply offer a contract.
Generally, publishers prefer to register copyrights (or to have the author do so, in the case of smaller houses) at the time of initial publication.
Myth #6: Traditional publishers always register copyright on the author’s behalf.
False. Many do, but some do not—especially in the case of smaller houses. Your publishing contract should state, specifically, who will handle copyright registration. If the language isn’t there, ask (or have your agent or attorney ask) the publisher to add it during negotiations.
Myth #7: Registering copyright is difficult, expensive, and requires a lawyer.
False, False, and False. Copyrights can be registered online, at the U.S. Copyright Office website (www.copyright.gov). Registration typically costs less than $50, and no attorney is required. The Copyright Office website even has a step-by-step tutorial to walk you through the registration process.
When it comes to publishing law, don’t trust in myths. Do your homework, and ask a publishing lawyer or an agent if you can’t figure out the answer. A little research in advance can save you a lot of trouble down the line.
* Disclaimer: this post is for information purposes only. It is not, and should not be interpreted as, legal advice to any person or on any topic. Also: this post discusses U.S. copyright law—the laws of other nations and principalities may differ. Consult an attorney in your country, state, or province for an individual assessment of your legal rights and needs.
Susan Spann writes the Hiro Hattori Novels (Shinobi Mysteries) featuring ninja detective Hiro Hattori and his Portuguese Jesuit sidekick, Father Mateo, who solve mysteries set in medieval Japan. Her first novel, Claws of the Cat: A Shinobi Mystery (Minotaur, 2013) was a Library Journal mystery debut of the month and a finalist for the Silver Falchion Award for Best First Novel. Her fourth Hiro Hattori novel, The Ninja’s Daughter, releases August 2, 2016 from Seventh Street Books.
Susan is the 2015 Rocky Mountain Fiction Writers’ Writer of the Year, and also a transactional attorney whose practice focuses on business and publishing law. She founded and curates the Twitter hashtag #PubLaw (for Writers), where she answers questions and provides information about publishing business and legal issues.
When not writing or representing clients, Susan enjoys traditional archery, reading fiction and nonfiction, and raising seahorses and rare corals in her marine aquarium. She lives outside Sacramento, California, but you can find her online at https://www.SusanSpann.com, on Twitter (@SusanSpann), or on Facebook/SusanSpannBooks.
Excellent summary.
One more point: if the book hasn’t been published yet, you can register it on the website without mailing in a copy. If it’s been published, you need to send one.
Thanks Ken! I think the copyright office actually does require a hard copy upon publication if the book is published in printed form (even if registered before publication) but books that are published in ebook only don’t need hard copy submission, for sure.
Thank you for this, Susan. It’s very enlightening and explains many of the myths. Just to clarify: If a traditional publisher copyrights your book, does that cover the author as well or do authors have to get their own individual copyright for the book? And related to that, if there is no specific copyright language in the contract, and the published book has the copyright symbol with the date, is that a sure indicator that the book has been registered with the copyright office?
I’m glad you found this helpful, Natasha. (And I apologize for the delay in my response – I’m in Japan, researching an upcoming novel, and haven’t had wi-fi in a few days.)
Although it might sound like splitting hairs: the publisher will “register” copyright, but they don’t actually create the copyright. That happens automatically when the book is written. When the publisher registers copyright, they should be registering the book in the author’s name (with the publisher listed *only* as publisher) so yes, that protects the author.
The contract should have copyright language in it – that’s a critical term that should always be in the contract. The fact that the book has a copyright date and symbol does not necessarily mean the book was registered with the copyright office – they’re completely separate forms of notice. The only way to know if a book has been registered at the copyright office (unless you have the original certificate) is to perform a search on the copyright office website and check for registration. The search option is free and public.
In this age of giveaways, free content, creative commons, fan fiction, and so on, you might not think that copyright matters anymore.
Mistake. Forty years into my publishing industry career, it’s amazing to me how critical and central copyright remains to authors. There is a time beyond breaking in when, decades down the road, copyright ownership makes possible opportunities and revenues you’ll want.
There is copyright infringement to consider, yes, but in my experience even more important is down the road licensing of audio, translation, anthology and many other rights that would be impossible without copyright protection.
Think of it as saving money for the future. If you have money for that, you save it, right? Well, same goes for your writing. You have it. It has value. Invest it, which in authorship terms means understanding and protecting copyright.
Some day you’ll be glad. Thanks, Susan.
Great comments and advice, as always, Don. I agree with you 100%. The more authors know about their rights, the better they can protect themselves, their works, and their careers.
Terrific article covering a lot of good information!
Thank you!
Thanks for breaking some of the myths of copyright, Susan. I have been remiss in registering some of my work, and this was a good reminder to get that done.
I have linked to this post on my blog today, as I think this is good information that all authors need.
Thank you Maryann! And thank you for helping spread the word, too.
Great rundown on copyright for authors. I wonder if you would consider covering it from the other side. What copyrighted material of others’ works, if any, can we use in our manuscripts.
Another problem I ran into is that music copyright is different from text copyright. I just got sideswiped with music copyright because I used lines from 1930 songs in my book. I believe I understand now that there is no fair use of music–lyrics or melodies.
Music is a tricky topic (as is the more general topic of using others’ copyrighted works)–there’s a lot of bad advice about fair use on the Internet, in part because it takes so long to discuss the topic in any real detail.
The topic is far too complex for a single blog post, but I’ll see what I can do. The shorthand version is: there really is no “bright line, you can use X words/X lines” rule – fair use is always a multi-step, facts and circumstances test, and with music it’s very tricky. As a general rule, I advise authors to get legal advice (from a qualified lawyer) before using copyrighted works in any extensive manner, to ensure that the use qualifies as fair use or that the author knows (s)he needs to obtain licenses from the copyright holders.
This is amazing advice, Susan.
Thank you.
Dee Willson
Author of A Keeper’s Truth and GOT (Gift of Travel)
Thank you Denise!
Thanks for this post. Are you going to talk about “what to do when using a pseudonym?” in another post?
Hi Essie – yes, I can do a post about pseudonyms. I’ve blogged about them on my own website in the past, but it’s been a while, and I’d be glad to do a post about it here.
Hi Susan,
Like Essie, comment above, I am wondering what the use of a pseudonym means as far as registering a copyright goes. Does an author use his/her “real” name or register using the pseudonym?
Authors can register copyright either in their own names or in a pseudonym, but the copyright in works registered under a pseudonym is potentially shorter (it falls within the period for “anonymous/pseudonymous works” which is 120 years from date of creation, as opposed to the term for works registered in the author’s own name, which is life of the author +70 years). That said, copyright is a public record, so authors who don’t want the public to know their real names must make a decision to forego some of the copyright term (potentially, anyway) in order to preserve anonymity.
Thank you for the excellent information.
You mention that different laws apply in different countries. Can you tell me whether the relevant country is the one where the author lives, the country of publication, the country where the book is sold, or something more esoteric?
Like most lawyers, I’m afraid I have to answer that question “it depends.” This post addresses United States copyright law only, and since I’m not licensed to practice outside the US, I can’t give advice on, and won’d discuss, copyright laws abroad. For purposes of this post, and the copyright registration I’m discussing here, U.S. registration is available to authors who reside abroad and to works first published outside the U.S.
As to whether the relevant country is the one where the author resides, where the book is published, or where the book is sold – the answer really is that it depends which aspect of copyright we’re discussing, and what kind of infringement, contract, or enforcement action is being dealt with or considered.
I’m sorry I can’t respond with more detail – your question actually encompasses a lot of different issues, with different answers depending on circumstances.
Thank you for this. Very helpful.
Thank you!
Thank you for posting this important information. I’m on the last draft of my first novel and I was starting to wonder when I should copyright it.
Thank you! I’m glad you found it helpful, and that it answered your question. Also, congratulations on finishing your novel!!
Excellent article! Thank you, Susan.
Thank you!
Even though I myself am Canadian, I thank you for a very interesting, and informing article. Have a great day.
Thank you! I’m glad you enjoyed it.
Always make sure that the publisher does copyright your material. Harlequin, despite the author contract stating the publisher would, didn’t for a huge number of its book for a period. The authors were not amused.