Copyright Is Not a Verb


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Copyright symbol

Today’s guest post is by copyright lawyer Brad Frazer. He has written two other posts for this site: Trademark Is Not a Verb and Is It Fair Use? 7 Questions to Ask Before Using Copyrighted Material.


“I copyrighted my book by putting © on the bottom of the first page.”

“This picture is on the Internet, so I can just ‘right-click’ and use it on my website.”

“I copyrighted this DVD by mailing it to myself.”

“We don’t have any copyrights because we never registered anything with the government.”

Have you ever said any of these things? If so, you are in good company—most people have. But they are all incorrect.

Should a writer copyright an unpublished work before submitting it to an agent or publisher? If a writer does not formally copyright their unpublished work and finds someone copying it or giving away free copies, how are they disadvantaged, if at all? How does a writer copyright her work?

As with “trademark” (see my previous post here), “copyright” also is not a verb. It, too, is a noun. Technically, a copyright is an incorporeal property right that springs into existence when a sufficiently creative idea is reduced into or onto a tangible medium. It’s actually like magic, like the Big Bang when the universe sprang into existence from a sea of quantum probability. When you write words on a page or draw a picture or sculpt clay or trip the shutter on a camera, the human being doing the writing, drawing, sculpting or tripping has created and is the owner of a copyright in the resulting work—assuming the resulting work possesses the requisite creativity. Done deal—no ©, no government filing, no mailing to oneself needed to create a copyright.

So, let’s assume you have written a book. If it is creative and is not a blatant rip-off of someone else’s work, it is likely you own the copyright in and to said book. There are some exceptions to that general rule regarding copyright ownership, all of which are beyond the scope of this article, but are briefly noted at the end of this post. If you sell a hard copy of that book, you are only transferring ownership of the paper, the ink and the binding. The incorporeal copyright remains with you on those facts because a copyright exists apart from the medium on or in which the work is tangibly embodied.

Said another way, when you sell a copy of a work you authored, you do not at the same time sell away your copyright in the underlying work. They are different concepts: the medium, and the copyright—a distinct intangible property right—the author possesses in the work contained within or on that medium. If someone copies your book, or large portions of your book, without your permission, that is likely an act of copyright infringement, since the owner of the copyright in a work is the only one who may lawfully make or distribute copies of that work.

But in the United States, for the owner of a copyright to have the ability to file and maintain a lawsuit in federal court for copyright infringement, the owner of the copyright must have registered the copyright at issue. This act of registering one’s copyright is accomplished by filing a registration application with, and paying a fee to, the Copyright Office at the Library of Congress.

So, should a writer copyright an unpublished work before submitting it? Said another way, should the author of a work file an application to register her copyright in that work with the Copyright Office before submitting it to an agent, a publisher or some other third party?

The answer depends on whether the author wishes to have a remedy to enforce her copyrights through a copyright infringement lawsuit in the event her work is copied or distributed unlawfully and her copyright is thus infringed. This is the key issue every author must address when deciding if registration of her copyright in a work is warranted: is the availability of a remedy for copyright infringement important? In general, agents and publishers will not knowingly infringe a copyright in a submitted work. To do so would be anathema to their reputation and their business, and so most authors should not be anxious about making routine, industry-related submissions of works that are not officially registered.

There is one very important “gotcha” that can arise from not timely registering one’s copyrights. In the United States, if you do not register your copyright in a work within three months of the date of first publication of that work, you will not be able to recover either your attorney’s fees or a special category of money called “statutory damages” in a subsequent copyright infringement lawsuit—even if you win. “Publication” for purposes of copyright law is defined differently than the common understanding associated with being a “published author.” Under copyright law, “publication” is very loosely defined as “giving or selling a copy of the work to a third person,” so remember that to have your full panoply of rights available if you do file a copyright infringement lawsuit, you must register your copyright. And if possible, register within three months of the date of first publication, as defined.

Important Caveats (to be elaborated upon in future posts)

  1. Ideas are not protectable under copyright law. The idea of your book, e.g., cloning dinosaurs using ancient DNA, is not protectable.
  2. Titles are not protectable in copyright. You may call your book “JAWS” without infringing on Peter Benchley’s copyrights, assuming you did not otherwise plagiarize Mr. Benchley’s words.
  3. The presence or absence of the © on the work has no relevance to the issue of whether the author has registered her copyright. The © may be placed on any work without regard to whether the author has registered the copyright. It merely acts to show that the author is arbitrarily claiming to own a copyright in that work and to notify the world of that claim. In fact, most authors do not place the © on industry-related submissions as it tends to show a bit of naiveté on the author’s part, and the absence of the © does not impair the author’s copyright ownership claim.
  4. You may not actually own the copyright in that work you think you just authored (e.g., work for hire and joint works).

You can contact me at bfrazer@hawleytroxell.com if you have any questions.

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About Brad Frazer

Bradlee Frazer is an author, speaker, blogger and Boise, Idaho native. He loves the blues; Ray Bradbury short stories; and his wife, daughter and dogs. Bradlee’s nonfiction has been published in national legal treatises on matters of Internet and intellectual property law, and he is a frequent speaker on those topics. His works of fiction include the short story “Occam’s Razor,” which was published in an online literary journal, and he has co-authored two screenplays, Dangerous Imagination and Spirit of the Lake. He has written scripts for sketch comedy, radio productions and short films, and in college Bradlee was a film critic who wrote and hosted a weekly half-hour television program called “Premiere!” His first novel, The Cure, was recently published by NYC-based Diversion Books. Click here to find out more. And yes, he has registered his copyright.

  • http://twitter.com/DinaSantorelli Dina Santorelli

    An excellent and informative post. Thank you!

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  • http://twitter.com/Kunvay Kunvay

    This a great post not only for writers but for other creatives as well.
    Knowing how to manage one’s copyrights and intellectual property is
    something every writer and creative should be able to do with ease. We
    started Kunvay to help creatives and buyers of creative work with this
    exact problem because it’s so widespread.

  • Pingback: Copyright Is Not a Verb | The Writer's Resource Cupboard | Scoop.it

  • Bradlee Frazer

    Thank you, Dina!

  • Bradlee Frazer

    I am pleased you found it to be useful.

  • Bradlee Frazer

    Thank you, Dina.

  • Susie Lindau

    Thanks for the info!
    I am curious. If I write a short story then blog it and it ends up in someone else’s book, do I have any recourse?

  • http://janefriedman.com/ Jane Friedman

    I’m sure Brad will respond in greater length, but my take: Since you own the copyright to the story, even if you had not formally registered the work, you would have legal recourse. The big issue is probably one of time and expense.

  • Susie Lindau

    That is great news! Thanks Jane!

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  • Bradlee Frazer

    Hi Susan, yes, if you have registered your copyright in the short story with the U.S. Copyright Office you would be able to file a lawsuit for copyright infringement against the person who used it in their book. You do need to register the copyright to be able to file and maintain that lawsuit. Without registration of the copyright, your legal remedies in the U.S. are somewhat limited. And, please try to register that copyright within three months after you blog the story to make sure you have the full panoply of legal rights in that copyright infringement action.

  • http://twitter.com/AbbyRoseDesign Abigail Rose

    This is actually a timely article for me. Thanks for posting it!

    My situation is one that a former editor of my novel in the works is trying to claim my work as her own, posting it on Twitter and other social media sites. It has not been registered with the copyright office and is not even complete yet. Do I have any recourse to make this stop?

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  • Bradlee Frazer

    Abigail,
    Yes, you should register your copyright in the work as it exists now. Registration will give you a remedy in case you wish to file a copyright infringement lawsuit. Normally, after you register the copyright you or your lawyer would send the infringer a cease and desist letter and then, if there was no response, file a lawsuit to make it stop. Or, since this is apparently online infringement, you could send a Digital Millennium Copyright Act Take-Down Notice to the sites hpsting the infringing content.

  • maryRRR

    I often find myself wondering whether the Terms and Conditions on so many of the internet sites would supercede my right to my published work. Some appear to claim rights to what I thought would be “intellectual property”. So, let’s say I have a blog and write from a technical, how-to standpoint…is that considered “creative” and protected? Or is copyright protection more for books/poems/etc?

  • Bradlee Frazer

    Mary,

    Your blog posts, as you describe them here, would very likely be sufficiently creative to merit copyright protection. If you feel like reading more on “creativity” under copyright law, here is a case: http://goo.gl/JnuG2. As you will see, the threshold is pretty low. So assuming your posts are creative, you own the copyright to them. And yes, you may transfer away those copyrights by contract, such as by clicking on an “I Agree” button on a website Terms and Conditions page. If those Terms said, for example, “By posting here, you assign and transfer to us your copyright in what you post,” if you click on “I Agree” and thereafter post, you may indeed have given away your copyright in that post.
    Brad

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  • joanna mckethan

    Question: Is the three months spoken of dated from the time you submitted say a novel to that third person, an agent or a publisher? Or does it date from the time it went on the net or into print? Or from the time a copy of it was purchased?
    joanna mckethan

  • Bradlee Frazer

    Hi, Joanna,
    The three months starts on the date of first publication. “Publication” is defined in copyright law to mean, “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.” See 17 U.S.C. Section 101. So, like other legal issues, it is a matter of reading and applying that statutory definition to your facts. I always advise client to err on the side of caution and register their copyrights as soon as the work is completed and not wait for a “publication” event.

  • joanna mckethan

    okay, that answers my question AND my stress levels simultaneously; I don’t have to wait for my law degree! Thanks so much–very concise, informative, helpful.

  • Bradlee Frazer

    Joanna, to clarify, that is the law of the United States. Other countries may not have a similar provision, and some to not require or even permit registration of a copyright as a condition precedent to enforcement.

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  • Erec Stebbins

    As I posted at “The Big Thrill”:

    I tried googling the verbing of “copyright”, and many sites have critiqued those practicing such poor grammar, often ascribing it to bad parenting, spamming too frequently, bookmarking sloppy articles, and blogging incessantly, thereby impacting all of us.

    I think it is something that we all have experienced. I know I’ve felt like actioning against this, even when I hear commonly used expressions, such as when people walk during their runs or, for goodness’ sakes, run during their walks! When I login to Facebook now, I unlike any examples of such violations, and I’ve defriended any such transgressors. I’ve also photoshopped them out of all images in which we might both be present. What a present I’ve gifted them now!

    As the Bard would have texted, no doubt: “We the soiled grammar dogged and ghosted”. Or perhaps even “Grace me no grace, nor uncle me no uncle.”

    Grammar traitoring is something up with which we shall not put.

  • Janet Ruth Heller

    Dear Brad Fraser,

    This essay is helpful and informative. Thank you for posting it. Best wishes!

    Janet Heller

    Author of two poetry books, a scholarly book, and the award-winning book for kids about bullying, How the Moon Regained Her Shape (Sylvan Dell, hardback–2006, paperback–2007, e-book, audio, and Spanish edition–2008, 3rd paperback edition and iPad app–2012)
    Website is http://www.redroom.com/author/janet-ruth-heller

  • KatieCanary

    I am LOLing you!

  • http://www.diversionbooks.com/ebooks/cure-thriller Bradlee Frazer

    Thank you, Janet!

  • http://www.diversionbooks.com/ebooks/cure-thriller Bradlee Frazer

    Thanks, Erec! Glad to see you followed me here from the ITW site as well. I am flattered!

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  • Alan Drabke

    Mister Bradlee Frazer, JD, Attorney at Law
    Someplace in Idaho | Dear Mister Frazer-

    I just finished reading the essay you published on Jane Friedman’s
    blog on the very complicated subject of copyright law. My question
    to you is, what about discovery?

    Let’s suppose I send a rough draft copy of a novel to a production
    company out in Hollywood. Lets suppose I hear nothing from them
    for quite some time (maybe months or years).

    Now lets suppose I finish the novel, register my copyright with the
    United States Copyright Office, and publish my work as a downloadable
    electronic book (mobi file format) on Amazon.

    If I find out the production company in Hollywood made a movie in
    a foreign country off my book. Wouldn’t I be entitled to a full set
    of damages? Seems to me, as long as I ‘discover’ the infringement
    after I register my copyright I have all of my legal rights intact.

    Am I correct?

  • http://www.diversionbooks.com/ebooks/cure-thriller Bradlee Frazer

    Alan, we traded emails on this, so I hope that answer was satisfactory.