Q&A on Copyright With an Attorney


By

Bradlee Frazer

By far, I receive the most questions from writers on copyright, mainly due to this post: When Do You Need to Secure Permissions? So I feel very lucky to have found an intellectual property lawyer, Brad Frazer, who is friendly and enthusiastic about providing answers to writers on a range of copyright issues.

He’s written three other posts for this blog:

As a thank-you to him, I recommend checking out his novel with Diversion Books, The Cure. Visit Amazon and sample his first chapter for free on your Kindle.


Isn’t registering your copyright something the publisher does? And if not, and you haven’t done it within three months of publication, then what?

Yes, many times your publisher will handle the copyright registration. But there is no industry-wide rule that says an author may not or should not register her copyright in her works. Said another way, a publisher will not look askance at you or reject your work simply because you have already registered your copyright. It is a big risk to decide not to register your copyright thinking you will wait for your publisher to do it. This is so because (1) in the U.S., you must register your copyright in order to have a remedy to sue an infringer in federal court; and (2) you should register your copyright within three months of the date you first give away a copy of the work or sell a copy (“publication”), so as to have the full panoply of remedies available to you should you have to file a lawsuit. If you do not register within that three-month window, and if you do sue for copyright infringement, you will not be able to recover your attorney’s fees or what are called “statutory damages”—even if you win. So there is a huge financial incentive to register within that three-month window.

Side note: “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.” Like other legal issues, it is a matter of reading and applying that statutory definition to your situation. I always advise clients 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.

Remember: Registering your copyright is NOT THE SAME as merely putting a “circle C” symbol on the work. In fact, you generally would NOT want to put a “circle C” on an industry-related submission to an agent or publisher. Just because you have registered the copyright does not mean you must put a “Circle C” on the work.

A former editor of my novel (still 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?

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 posting the infringing content.

If I write a short story then blog it and it ends up in someone else’s book, do I have any recourse?

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.

I’m a self-published author who, like most self-pubbers, has begun with one electronic format. As time goes on I will publish my novels under other formats, and then, who knows? Paperback, hardback, audiobook … I see from the U.S. Copyright Office site that I can file an electronic copy of my work; does that filing now cover all possible formats of the same work? Say in five years’ time I have an audiobook out of Novel #1 and someone pirates it, and by this time I can afford a lawyer to go after the pirate. Does my original filing of, say, a PDF of the text of Novel #1 cover this case?

Assume that you write a book using Microsoft Word. As you know, you own a copyright in the book upon the act of typing the words into the Microsoft Word .docx file. That is a sufficient act of reducing your idea to a tangible medium to create a copyright. If you print the book out on paper, you still own a copyright in the book. If you convert the .docx Word file to .epub or .mobi or .html, you still own a copyright in the book.

Because you self-published, I assume your book exists today both as a Word .docx file and a Kindle .mobi file? You own the copyright in the book—file type does not matter. If you turn it into a PDF, you still own the copyright. As long as the words are there, the medium does not alter the basic idea that you, as the author, own the copyright in the work.

When you register that copyright that you own in that book, you will be required to upload an electronic copy of the book called the “Deposit Copy.” The Copyright Office upload protocols require that the Deposit Copy be in specified formats—I do not think they accept .mobi or .docx. So, you will convert the book into a PDF file (or whatever) to upload it, and voila!, you will have filed a copyright registration application.

Once that is done and you receive the Registration Certificate in the mail in a few weeks, the words that comprise the book are protected by a registered copyright, and will be, even if the book is published in paperback, hardback, EPUB, or some other digital format. As long as the words are all there in the subsequent version of the book, that original registration will cover it, even if the file format of the book changes.

The EXCEPTION to all this is an audio book, the example you picked. When you create an audio book—a sound recording of someone reading the book—you will need to file a new copyright registration application to register an additional copyright in the sound recording. You will upload or mail in a copy of the sound recording, and that will become the Deposit Copy to support that application. You will then own a registered copyright in the sound recording AND the print version.

Note that when you write the screenplay based on the book, that will be what is called a derivative work, and you will need to file another copyright registration application.

But except for sound recordings and derivative works like a screenplay (in which the words are changed), one registration of your copyright in the book as a PDF (or whatever the required Deposit Copy file format is) will cover multiple print formats of that same book.

I will do the online registration with the Copyright Office at the Library of Congress within three months of publishing my YA novel. It is affordable, I am pleased to see. However, I live in Australia. Is this still acceptable? Or is this only for U.S. citizens?

Each country has its own copyright laws and registration schemes. In some countries, registration is not needed to fully protect your rights, for example. Registering your novel with the United States Copyright Office within three months of the date of first publication will give you remedies for copyright infringement that occur within the United States. A U.S. registration can also help you with an act of infringement that occurs in another country, like Australia, if it is a member of the Berne Convention, an international copyright treaty. (Australia is a Berne Convention country.)

There is no downside to your registering your work in the U.S. if there is a chance your work will be copied without your permission in the U.S. or in a Berne Convention country. You’ll need to consult an Australian copyright lawyer to see if an Australian registration is needed/required.

What if a worship pastor (whose job description includes writing worship songs), writes a worship song on his own time and without church resources, BUT that song is performed at the church where he works at? I know that if it is written in his office, on church time, with church resources, the church “owns” it. I know that, typically, what is done on one’s on time without church resources is not owned by the church. HOWEVER, it gets fuzzy for me when it’s a part of his/her job AND it’s “promoted” (performed) at the church. 

Your question arises under what is called the “work for hire doctrine.” Generally stated, it means that the copyright in a work created by an employee during the course and scope of their employment is owned by the employer. Period. Where it gets hazy, as you state, is when it is not clear if the work was authored during the course and scope of the employee’s employment.

Here, the fact of the song’s being performed at the church doesn’t really matter, in my opinion. This is going to boil down to these two issues: (1) was the worship pastor an actual employee (as defined by the IRS) of the church; and (2) was the song authored during the course and scope of that employment? There is a great deal of case law on that very issue (see, e.g., the Reid case), since many times it is not clear what is within the “course and scope” of the employment—as in your case. Here, it seems to be helpful that the pastor’s job description includes writing worship songs—that is a fact that would tend to show that the song at issue was written as a work for hire, and thus the church owns the copyright, assuming the employment test is met. But without a full-blown analysis of all the facts and the case law in your jurisdiction, I cannot really opine further.


Once again, my thanks to Brad for being so generous with his time and advice. Check out his thriller, The Cure, over at Amazon.

  • http://twitter.com/ficwriter Darrelyn Saloom

    Thank you, Jane. And thank you, Brad, for a clear explanation of copyright.

  • http://twitter.com/quirkycity Heather C Button

    Thank you for putting out the answers to these questions. I haven’t even gotten my work finished and I had no idea what kind of copyrights were needed. One Q for you though. If you get copyright for a book that a publisher is publishing, what if they require edits? Does that void the copyright?

  • http://twitter.com/Renegade_Image Keith Skinner

    Thanks so much for this, Brad. I’ve been registering my photos but not my written work. Question about registering BEFORE publication: How does revision play into the process? If I register a short story that I believe to be in final form but later revise it, do I have to register the new version or is there some way to update the registration? Or does it depend on the scale of the revision?

  • Bradlee Frazer

    Hi, Keith,
    You are welcome!
    On your facts, I would recommend filing a new copyright registration application on the revised story. There is no “bright line” test on how much you must revise it before I recommend a new registration. In general, when the new version is no longer “substantially similar” to the old (previously registered) version, I recommend a new registration. I know that is a hard test to apply because everyone wants a percentage, but there is no hard and fast percentage rule. Because copyright registration is realtively inexpensive in the U.S. ($35.00), I encourage clients to register copyrights frequently and certainly as often as the old work and the new are no longer substantially similar.
    Brad

  • Bradlee Frazer

    Hi, Heather! Thanks for the feedback. Interestingly, my answer to the previous post also answers this question: if your register the copyright in a work and subsequent editing causes the old version and the new version to no longer be substantially similar, I would file a new registration application. It would not “void” copyright registration, no, but the old registration would be of limited value since the work has now been significantly altered. You would still have a registered copyright in the prior version. Plus, remember that copyright is a noun–once you create a copyright, you own it as a property right as the author of the work–unless you transfer the copyright away somehow.
    Brad

  • Bradlee Frazer

    You are welcome!
    Brad

  • http://homesteadnotes.blogspot.com/ Teresa Robeson

    Thank you for this very interesting post. I’ve always read that it wasn’t necessary for a writer to take the legal steps to copyright his/her work because the publisher will do it, so this was pretty eye-opening. I’ve only had my writing published in magazines and the magazines dealt with the copyrighting (or so I assumed because the copyright symbols appears next to my name in the bylines).

    Now I’m wondering if I should be paranoid and look into whether the copyrights have legally been filed, or should I just trust that because these magazines are pretty major ones that the copyrighting has been done for me? :}

    Thanks again!

  • Bradlee Frazer

    Teresa,
    Remember that copyright is not a verb. You own the copyright in the works you author unless you transfer the copyrights away (there are several ways to do that, BTW). My message is that authors should timely register their copyrights in their works and not count on the publisher’s doing it. This is becasue registration is needed (in the U.S.) to enforce a copyright through a copyright infringement lawsuit, and you may wish to have that remedy available to you. So yes, if I were you I would verify that your copyrights in your various works have been registered, especially if you were relying on someone else to do it for you.
    Oh, and the copyright symbol has nothing to do with whether or not a copyright has been registered.
    Thanks,
    Brad

  • http://teresarobeson.com/ Teresa Robeson

    Brad, thank you very much for your reply to my question, and thank you again for sharing your expertise with us! I will look into the copyrights for my previous publications.

    Regards,
    Teresa

  • http://janefriedman.com/ Jane Friedman

    Hi Teresa – Having worked on a magazine, I’d say that you’re likely safe if that publication has an ISSN number (the mag equivalent of book ISBN) and has its own copyright & legal info detailed somewhere on the masthead or front matter. If your material were infringed upon, the magazine would likely have as much of an interest in preventing illegal use as you.

  • http://janefriedman.com/ Jane Friedman

    For all readers: I feel I ought to clarify a minor difference in opinion that I have with my guest. (But I’m not an attorney, so keep that in mind.)

    When it comes to works that are, shall we say, “in flux” (you have not published it, you are submitting it maybe to agents/editors, and it is likely that work will be revised), I rarely advise that writers bother with an official registration with the Copyright Office since, as Mr. Frazer says, you are already protected under copyright law, although you don’t have the ability to recover attorney’s fees and statutory damages. Plus, any reputable publisher will file with the Copyright Office within the three-month window he indicates.

    The other detail not really discussed here, if I may be so bold to say so, is what financial damage a writer might actually suffer should the work be used illegally. Unless we’re talking about a bestselling author, it’s rarely the case that an unpublished work (that hasn’t been distributed/shared in any formal way) would afford someone any income that would be worth filing a lawsuit over. I don’t know case law, so perhaps there are exceptions, but I just want to point out: It’s hard enough to publish and make money off writing these days, much less steal someone else’s work and make a go of it.

    Remember: Regardless of whether you officially register for copyright, you are still protected under the law from the moment your work is tangible.

    But I want to emphasize I’m not a lawyer, and am speaking strictly from my experience working in book and magazine publishing.

  • http://teresarobeson.com/ Teresa Robeson

    Jane, thanks for that bit of info! I went and checked and they do, indeed, have the ISSN. It’s good to know what to look for. :)

    Warmly,
    Teresa

  • http://janefriedman.com/ Jane Friedman

    (And as a quick side note — these things get so tricky so fast — you do remain the copyright holder of your material, if you’re publishing with a legit magazine and not doing a work-for-hire piece. But such mags want to prevent misuse, of course.)

  • nownovel.com

    Fascinating post, thank you! It’s one of the issues I’m really not clear on, and one I think many writers would like more clarity on. This filled in many of the blanks.

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  • http://twitter.com/Renegade_Image Keith Skinner

    After reading Brad’s post, I read through the documentation provided by the Copyright Office and discovered that UNPUBLISHED work can be registered as a collection. Given our current market, it seems illogical to register each 3500 word short story. However, it may make sense to register a body of “finished” work that you will regularly submit for publication (rather than stories that are cooking or still need work). When a piece is published the revised, or derivative form, will be registered by the publisher (hopefully).

    Jane, your comment about the risk/cost/reward tradeoffs, which is an excellent point, raises one other question: is the award in an infringement case always based on the benefit realized by the thief or could there be substantial punitive damages for potential but unrealized benefits? If the latter is possible, registration of a collection might be worth the bother/cost.

  • http://janefriedman.com/ Jane Friedman

    That’s a great question—but I don’t know the answer! Hopefully if Brad knows, he’ll jump in.

  • E.S. Ivy

    Thanks for answering all these questions, Brad, and for the post, Jane!

    It reminded me that I had planned to file for a copyright of the book I self-published within three months of publishing it as an ebook on Kindle, but I failed to do so. Is there any use in filing for a copyright after the 3 months has passed?

  • http://janefriedman.com/ Jane Friedman

    Yes! You should still file if you think you might ever need to defend your copyright in court. It’s necessary should a lawsuit ever arise.

  • Bradlee Frazer

    Keith,
    Good point, and yes, you may take a group of short stories and register the copyright in the assembled anthology as a collection. This will act to register the copyright in each individual work within the collection as well, although there are very technical reasons for perhaps also registering a stand-alone copyright in works that you consider to be the most valuable, if that is even possible to quantify.
    In general, in a copyright infringement lawsuit, the successful plaintiff may recover as monetary damages the plaintiff’s actual damages plus the infringer’s profits obtained from the infringing acts, OR statutory damages. In certain cases, a successful plaintiff may also recover her attorneys fees and costs. Puntive damages are not available in the U.S. under current U.S. copyright law.
    My point about timely registration is underscored here: if you cannot prove actual damages and lost profits for some reason, if you have not registered within three months of the date of first publication, you may not elect to recover statutory damages, and so you are left to only get an injunction–no money.

  • Bradlee Frazer

    A hearty “amen!” to Jane’s comment. You should always register your copyrights, even if more than three months have passed since the date of first publication.

  • E.S. Ivy

    Thanks!

  • E.S. Ivy

    When you’re unknown and busy trying to figure out how to *get* known (setting up webpages and stuff), it’s hard to remember that one day you *might* need your work protected. Thanks for the reminder! So I pulled out the copyright book I had bought and started reading up on how to do all this correctly. There’s one question I haven’t found the answer to yet so I’m hoping you’re possibly still around to answer. :)

    I am copyrighting a book that is currently only an electronic version and will file a copyright. I will epublish two more books in the series and will file a copyright for each of them. Since they are middle grade (and not very long) the plan is to then publish them in print form as a single volume. Will I need to copyright that volume or will the existing copyrights be enough under the “best edition in existence at the time registered” rule?

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  • http://www.facebook.com/kawyle Karen A. Wyle

    Would I be correct that changing the title, but not much else, is not a substantial revision requiring a new copyright registration?

  • Bradlee Frazer

    That is correct, Karen.

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  • Sandy

    This is a fantastic site Jane and Brad, thank you. I have a (surreal) copyright problem w/an Aussie publisher, although I live in the USA. Does Brad do telephone consultation, for a reasonable fee?

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

    Hi, Sandy. Sure, I’d be pleased to offer a complimentary initial phone consultation. Email me at bfrazer [at] hawleytroxell [dot] com.

  • http://janefriedman.com/2012/1

    When writing a non-fiction book (names changed) is it necessary to obtain written permission from relatives, friends when utilizing their stories or paraphrasing them? Their stories etc. would about 15% of the books content.

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

    It would be best to get permission in case one of them recognizes themselves (despite the changed names) in your story and sues you, for example, for defamation or a right of publicity violation. Permission is probably only not needed IF you change the facts enough such that your friends and relatives could not recognize themselves.

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