Q&A on Copyright With an Attorney

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.


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Jane Friedman

Jane Friedman

Jane Friedman (@JaneFriedman) has 20 years of experience in the publishing industry, with expertise in digital media strategy for authors and publishers. She is the co-founder and editor of The Hot Sheet, the essential newsletter on the publishing industry for authors.

Jane currently teaches writing and publishing at the University of Virginia and is a columnist for Publishers Weekly. The Great Courses just released her 24-lecture series, How to Publish Your Book. She also has a book forthcoming from the University of Chicago Press, The Business of Being a Writer (2017).

Jane speaks regularly at conferences and industry events such as BookExpo America, Digital Book World, and the AWP Conference, and has served on panels with the National Endowment for the Arts and the Creative Work Fund. Find out more.

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48 Comments on "Q&A on Copyright With an Attorney"

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Darrelyn Saloom
3 years 6 months ago

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

Bradlee Frazer
Bradlee Frazer
3 years 6 months ago

You are welcome!
Brad

Heather C Button
3 years 6 months ago

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?

Bradlee Frazer
Bradlee Frazer
3 years 6 months ago
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… Read more »
Keith Skinner
3 years 6 months ago

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
Bradlee Frazer
3 years 6 months ago
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… Read more »
Teresa Robeson
3 years 6 months ago
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… Read more »
Bradlee Frazer
Bradlee Frazer
3 years 6 months ago
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,… Read more »
Teresa Robeson
3 years 6 months ago

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

nownovel.com
nownovel.com
3 years 6 months ago

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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Keith Skinner
3 years 6 months ago
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… Read more »
Bradlee Frazer
Bradlee Frazer
3 years 6 months ago
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… Read more »
E.S. Ivy
E.S. Ivy
3 years 6 months ago

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?

Bradlee Frazer
Bradlee Frazer
3 years 6 months ago

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
E.S. Ivy
3 years 6 months ago
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… Read more »
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[…] Q&A on Copyright with an Attorney – A good overview. I hear a lot of these questions, so I’m sure there are more people out there not asking but still wondering. […]

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Karen A. Wyle
3 years 6 months ago

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

Bradlee Frazer
Bradlee Frazer
3 years 6 months ago

That is correct, Karen.

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[…] Q&A Post by Brad Frazer is a great place to start. I’m still getting my head around certain aspects, but overall, this […]

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[…] Voor een ieder die elekectronische pulbicaties internationaal aan biedt is het van belang om te weten hoe de ze hun content kunnen beschermen. Intellectual property advocaat Brad Frazer verteld in een inteview met Jane Friedman waar je als content maker in Amerika op moet letten. Zo moet je om je te beschermen tegen overname van tekst in blogs, je verhaal registreren bij de U.S. Copyright Office en is het file formaat waarin je het registreerd niet van belang. Ook als er een PDF van bijvoorbeeld je EPUB bestand wordt gemaakt ben je na registratie beschermd tegen misbruik.  […]

Sandy
Sandy
2 years 11 months ago

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?

Bradlee Frazer
2 years 10 months ago

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

https://janefriedman.com/2012/1
https://janefriedman.com/2012/1
2 years 9 months ago

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.

Bradlee Frazer
2 years 9 months ago

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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Lucy
Lucy
1 year 5 months ago
Hi Jane and Brad, first things first – GREAT ARTICLE(s)!!!! I’ve been “googleing” for hours, until I came across your website which really clears things up, so THANK YOU both for that! Next, two questions: 1) Assuming I’m writing for commercial purposes (say, an ebook), and I want to quote an expert in the field to add credibility to a point I’m trying to make. As I learned from your other article, I shouldn’t quote directly without permission. However, what if I still wanted to use this person’s name for “expertise” and credibility? For example, let’s say I’m writing a… Read more »
armen abela
armen abela
11 months 7 days ago

My questions is i am planning filming a feature movie that is a drama. Witness the childhood of a kid, become teenager and get adult. What i ask is if i use comic books from Marvel, very old ones, for illustrate what the kid read at early ages, i need pay rights or is a crime? If i use brief shots or posters of old famous films, will too a crime? can´t i?

tinalouisewright
10 months 23 days ago

Hi — I’m just now catching up on this great blog! Here’s my Q: I keep seeing it mentioned that a copyright should be registered within three months of first publication. Does registering any further in advance hurt, e.g. four months prior to publication? It wasn’t clear to me if the three months window is only relevant on the back-end of publication, or the front-end, as well? Thanks in advance!

tinalouisewright
10 months 22 days ago

Thanks!!

Jackie Fairon
Jackie Fairon
8 months 2 days ago

If I get facts from Wikipedia or Google for a non-fiction article about an actual but deceased person, must I get permission? Also, I came across a google site with quotations by the person mentioned previously, which I have used a few of in an article I wrote for a competition. The site said ” share these quotes with your friends” – does that constitute permission?

Mrs. E. Marlow
Mrs. E. Marlow
2 months 23 days ago

I want to quote from Robert Fitzgerald’s translation of Homer’s Odyssey in a teaching guide for high school literature teachers. F’s copyright in 1961. He died in 1985. Do I have to get permission to quote from this translation? What if I discuss the epic at length (i.e. 10+ pages) but do not quote from it. Do I still have to get permission to discuss F’s translation?

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