A realistic look at copyrighting your work
This blog started out to be quite simple. Define copyright, then tell you why should or shouldn’t copyright your work. Ha! That quickly turned out to be not so simple. Then, my wonderful partner Robyn started editing my first cut and threw the Plagiarizing monkey wrench in it. So, please bear with us as we try to keep this as simple as we can yet help you to understand copyrighting your work.
To start with, we are not copyright attorneys and in fact have no legal experience. We have however done a lot of research on the internet and strongly encourage you to follow our footsteps to better understand what follows.
Our internet sources for what follows are: Wikipedia (https://en.wikipedia.org) and Plagiarism.org (https://www.plagiarism.org/)
One final note. Our research covers US Law only so, if you live or sell your books in other countries, the laws may be different.
Let’s start with what is a copyright? From there we’ll cover some of the elements of copywrite law, then talk about plagiarism and finally suggest what you should do and why.
What is a copyright?
Our friends at Wikipedia define copyright as follows:
Copyright is a type of intellectual property that gives its owner the exclusive right to make copies of a creative work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.
In many jurisdictions, copyright law makes exceptions to these restrictions when the work is copied for the purpose of commentary or other related uses. United States copyright law does not cover names, titles, short phrases or listings (such as ingredients, recipes, labels, or formulas). However, there are protections available for those areas copyright does not cover, such as trademarks and patents.
What’s all that mean? First, the copyright protects the owner and gives them the exclusive right to make copies. That means only you, the copyright holder, can make copies. Anyone else who wants to copy your work needs your permission.
But, your copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. Nor does it cover names, titles, short phrases or listings (such as ingredients, recipes, labels, or formulas).
What’s all that mean? Copyright is intended to protect the original owner’s expression of an idea in the form of a creative work, but not the idea itself. So, to start you’ll probably need some way to prove you’re the owner, which is where fixation comes in. But, it also means only your story is protected.
So, if you write a story about CJ helping horses at a horse rescue ranch, like I did, your copywriting the story of someone named CJ helping horses at a specific horse rescue ranch. That does not mean that you own the rights to all stories with characters named CJ or about horse rescue ranches. We’ll talk more about this in a bit too.
Fixation means that a works should exist in some tangible, permanent media form before it will attract copyright protection. That is, what you’re copyrighting should be ‘fixed’ in the form of a permanent media. For most artistic works, such as a manuscript, song or photograph, the point at which the work is created is generally considered the point of fixation.
Some jurisdictions require “fixing” copyrighted works in a tangible form when works are shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders. These rights frequently include reproduction, control over derivative works, distribution, public performance, and moral rights such as attribution (Credit). (This will become clearer when we get to changes in the law)
What’s that mean? Simple, you need to have whatever you’re copyrighting defined in a media form that can be stored unchanged. This could be a written or digital final manuscript, a published story, typed or written song lyrics or a photograph. Put another way, your original work needs to be in fixed entity that defines what your copyrighting.
Copyright requires originality for several reasons. For one thing, it ensures that the work protected by copyright reflects the author’s personality and expression and that the effort the author expends in creating the work is substantial enough to justify legal protection. This also means that copyright protection is limited to each author’s expression, leaving non-original expressions and works free for others to use in the creation of new works: in this way, the originality requirement protects the creative and intellectual freedom of other creators.
Huh? Okay, let’s take an extreme example. Let’s say you write a story that ‘borrows’ big chunks from other stories, TV shows, movies, songs and anything else you can find. Or, worse yet, there is absolutely nothing original in your story. When, you copyright your story, the only parts that will be covered by the copyright will be the original parts you created. In fact, for all the parts you ‘borrowed,’ you’ve certainly plagiarized the work of other and likely violated multiple copyrights. (We actually read a story that fell into this category.) (We’ll also get to plagiarism shortly.)
Copyrights can be granted by public law and are in that case considered “territorial rights”. This means that copyrights granted by the law of a certain state, do not extend beyond the territory of that specific jurisdiction. Copyrights of this type vary by country; many countries, and sometimes a large group of countries, have made agreements with other countries on procedures applicable when works “cross” national borders or national rights are inconsistent. An example of such an agreement is the Berne Convention Implementation Act which provides a standard for those countries that comply with it.
Some countries require certain copyright formalities to establishing copyright, others recognize copyright in any completed work, without a formal registration.
The key here is to be aware that different countries have different copyright laws so, what may be covered by your US copyright may not be honored if your work sells in other countries.
Changes to US copyright laws
We’re only including this so you know how we got to where we are with US copyright law and you can understand some of our suggestions at the end.
Before 1989, United States law required the use of a copyright notice, consisting of the copyright symbol (©, the letter C inside a circle), the abbreviation “Copr.”, or the word “Copyright”, followed by the year of the first publication of the work and the name of the copyright holder. Several years may be noted if the work has gone through substantial revisions. The proper copyright notice for sound recordings of musical or other audio works is a sound recording copyright symbol (℗, the letter P inside a circle), which indicates a sound recording copyright, with the letter P indicating a “phonorecord”.
In addition, the phrase All rights reserved was once required to assert copyright, but that phrase is now legally obsolete.
In 1989 the United States enacted the Berne Convention Implementation Act, amending the 1976 Copyright Act to conform to most of the provisions of the Berne Convention. As a result, the use of copyright notices has become optional to claim copyright, because the Berne Convention makes copyright automatic. However, the lack of notice of copyright using these marks may have consequences in terms of reduced damages in an infringement lawsuit – using notices of this form may reduce the likelihood of a defense of “innocent infringement” being successful.
But what is meant by the Berne Convention makes copyright automatic? This is where Fixation comes in. Since you need to know what’s being copyrighted, the standard interpretation is that as soon as whatever you’re copyrighting is defined in a media form that can’t be changed, it’s automatically copyrighted. To quote plagiarism.org: Almost all forms of expression fall under copyright protection as long as they are recorded in some way (such as a book or a computer file).
Which is the perfect lead into plagiarism!
What is Plagiarism?
According to plagiarism.org: “Plagiarism is the representation of another author’s language, thoughts, ideas, or expressions as one’s own original work. Plagiarism is considered academic dishonesty and a breach of journalistic ethics. It is subject to sanctions such as penalties, suspension, expulsion from school or work, substantial fines and even incarceration.”
According to the Merriam-Webster online dictionary, to “plagiarize” means:
- to steal and pass off (the ideas or words of another) as one’s own
- to use (another’s production) without crediting the source
- to commit literary theft
- to present as new and original an idea or product derived from an existing source
In other words, plagiarism is an act of fraud. It involves both stealing someone else’s work and lying about it afterward.
All of the following are considered plagiarism:
- turning in someone else’s work as your own
- copying words or ideas from someone else without giving credit
- failing to put a quotation in quotation marks
- giving incorrect information about the source of a quotation
- changing words but copying the sentence structure of a source without giving credit
- copying so many words or ideas from a source that it makes up the majority of your work, whether you give credit or not (subject to “fair use” rules)
So, where are we going with all this? Hopefully by now you’ve realized that there is a fine line between what is copyright protected and what falls under plagiarism. Remember, copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. Nor does it cover names, titles, short phrases or listings.
So, what if someone only steals parts of your work, some unique words, phrases or ideas? While copyright clearly doesn’t cover these, plagiarism very well may. And plagiarism is suable as an act of fraud.
Before we wrap things up, we need to cover registering your copyright.
Registration establishes a claim to copyright with the Copyright Office. An application for copyright registration can be filed by the author or owner of an exclusive right in a work, the owner of all exclusive rights, or an agent on behalf of an author or owner. An application contains three essential elements: a completed application form, a nonrefundable filing fee, and a nonreturnable deposit— that is, a copy or copies of the work being registered and “deposited” with the Copyright Office.
A certificate of registration creates a public record of key facts relating to the authorship and ownership of the claimed work, including the title of the work, the author of the work, the name and address of the claimant or copyright owner, the year of creation, and information about whether the work is published, has been previously registered, or includes preexisting material.
You can submit an application online through http://www.copyright.gov or on a paper application. In addition to establishing a public record of a copyright claim, registration offers several other statutory advantages:
• Before an infringement suit may be filed in court, registration (or refusal) is necessary for U.S. works.
• Registration establishes prima facie evidence of the validity of the copyright and facts stated in the certificate when registration is made before or within five years of publication.
• When registration is made prior to infringement or within three months after publication of a work, a copyright owner is eligible for statutory damages, attorneys’ fees, and costs.
• Registration permits a copyright owner to establish a record with the U.S. Customs and Border Protection (CBP)4 for protection against the importation of infringing copies.
Registration can be made at any time within the life of the copyright. If you register before publication, you do not have to re-register when the work is published, although you can register the published edition, if desired.
As soon as you finish your work in a fixed form, it is automatically copyrighted.
That’s great! Maybe. But, what should you do and why?
To start with, if someone steals your work it’s up to you, the copyright holder, to sue them. Even if you registered your copyright with the Library of Congress, they are not going to help you sue. However, if you don’t register your copyright, you can only sue for a cease and desist order and will not be eligible for statutory damages, attorneys’ fees, and costs.
So, what should you do? That depends on how worried you are about having your work stolen.
Our recommendation is:
Place a copyright notice in your work consisting of: Copyright © (year) by (your name).
Why? This way, no one can claim they didn’t know your work was copyrighted. (Believe us, it happens! There is no intelligence test required for book thrives.)
Don’t forget to add a notice for other copyrighted items used in your book. For example, the lyrics to my wedding song in book two of my trilogy holds a separate copyright, which is also listed on my copyright page.
If you really think you’ve got a best seller that someone might want to steal, register your copyright. Remember, you can always register your copyright at a later date; like after your second million copies sell. Seriously, registering your copyright is less than $50 so if you’re really concerned and want peace of mind, register it. (The $50 doesn’t count fixed copy and mail costs.)
When should you register your copyright? When you’re finished making major changes, typically when it’s done being edited. Minor changes such as corrections and small story enhancements will not negate your copyright, as long as they don’t substantially change your work. Also remember, for major changes you can always update your copyright, such as after your work is published or for a new edition.
Some Final Comments
The chances of having your work stolen are slim. Even slimmer are the chances of you finding out about it. However, if the old adage “better safe than sorry” ever applied, this is it. So, do whatever makes you feel like your work is protected.
We often hear concerns about editors stealing an author’s work. If your concerned, copyright and register your draft before you send it off for edit. Remember you can always update your copyright. If you’re still worried, ask your editor to sign a Non-Disclosure Agreement.
Happy writing and copyrighting everyone!
Have we missed anything? Let us know.
Samiwiches Short Story
This will be a little long but I think you’ll totally enjoy it.
My name is Samantha, but most people call me Sam. Well, everyone that is except my human dad; he calls me Samiwich.
Yeah, I know, kinda dumb isn’t it? But you know what? Even though I get teased a lot, I love my nickname. Why? Because my dad loves me so much that he created a special name, just for me. It’s even more special though because dad says that before he met my mom, he couldn’t even spell C.A.T. Now, even though I wasn’t his first cat, I’m his special cat. His special Samiwich. And there’ll never be another Samiwich.
But, I’m getting way ahead of myself. Let me start over.
Hi! My name is Sam. That’s short for Samantha.
My name wasn’t always Samantha. For my first year and a half I don’t really think I had a name, until I found my human parents. All I remember being called was “get out of here”, “shoo” and when I was really small, “kitten”. But there were dozens of get out of here’s, shoos, and kittens so, maybe I was really kitten number eleven and a half, or something like that.
You see, I was born in a house that already had 53 cat brothers, sisters, aunts and uncles.
When I was born I was short, chunky and the people in the house said I was funny looking. One of them, the really old lady, said I was the runt of the litter. A few weeks later though, I heard the old nasty guy that lived with her call her an idiot for not seeing that I was inbred.
Inbred … that means my mother and father were related. I think they were actually brother and sister but in the tiny hoarding house I was born in, everybody was called a brother or sister. And, forgive me, but mating with any cat of the opposite sex that happened to be walking by was … well … common.
I remember life from the minute I was born. There were six of us, four sisters and two brothers. We were all different colors and sizes and none of us looked the same. My face was broad and short and my nose kinda flat. My legs were really short, stubby they called them, and my body looked like a beer can … round.
My brothers and sisters … well, I never really got to see much of them. One sister and one brother only lived for a day. For some reason, mom, our cat mom, refused to have anything to do with them. She just pushed them away and ignored them when they tried to feed from her. I got pushed away too, but another mom, who I think only had one kitten and she was born dead, decided to adopt me.
Anyway, she let me feed from her but that was all. Oh, and it was only when she felt like letting me. There were some days when I was lucky if I got a mouthful or two before she went into a rampage. I’m not sure but I think it had something to do with losing her own kitten. Why do I say that? Well, for two reasons. First, a litter of one is rare and then to lose your only kitten must have devastated her. Second, one of the older kittens in the house told me much later that I looked like the daughter she lost at birth because of my mottled brownish sort of coloring.
(My favorite vet would later tell my human parents that I was a “Tri-colored Tortie”. That meant that I looked like a tortoise shell that was three shades of brown, all swirled together. Isn’t that cool?! I’m like a totally unique tri-colored tortie Samiwich! Yup! Definitely one of a kind!)
I must have been born in the winter, or perhaps the fall, because it was very cold. Two of my siblings only lived one day. My other three siblings wanted nothing to do with me. I think that was because I was inbred. Now, I don’t want to act holier than thou but if I was inbred and every cat in the house was related to each other, what the hell were they? Born from royalty?
My first year was spent pretty much alone. Nobody wanted anything to do with a round, short, squat, flat faced kitten. Not to mention one whose coat couldn’t make up its mind what color it was supposed to be.
The house we lived in was very small and it was full of stuff. Aside from collecting cats, the owners collected all kinds of other things. The room I was born and lived in until I was rescued was, I think, what you would call the living room. I guess that makes sense since there was at least 50 to 60 of us living in it, along with one or two humans on most days.
There was barely enough to eat and we often went for days without food or water. Some days, when we were finally fed, we wished we hadn’t been.
When I was one, it turned very cold again. Over the year some of my brothers and sisters kept dying around me. Every month, there would be fewer and fewer. But then, someone would have another litter and we’d be back to fighting for food and a warm place to sleep.
That’s when I started having breathing problems. Also, my teeth really, really hurt.
When summer came it got unbelievably hot. More of my family kept dying all around me and I had to fight to stay alive. I promised myself I would not die! No matter what, I was only 18 months old and I had so much I wanted to do. While fighting for everything in my life, I also realized that I wanted to be loved. I needed to be loved and I had so much love to share.
Finally, one day the rangers from the Humane Society broke down the door. “Ah, air!” I could hardly lift my head but I pulled in as much air as I could, just as a young woman picked me up, snuggled me and told me, “You’re okay. I’ve got you and you’re safe.”
The next time I woke up I was on an operating table. My throat had a slit in it and a tube hanging out, but I could breathe. The vet said I had an upper respiratory infection and it had almost turned into pneumonia. He also told the nurse helping him to schedule an appointment with the dentist because almost all of my teeth needed to be pulled. That’s when I passed out.
Two days later, I woke up in someone’s lap. They were bottle feeding me and I felt a thousand times better. Oh, and I could breathe! When I started to purr with happiness, I scared myself. I sounded like a lawn mower run-a-muck. But the girl whose lap I was in just laughed. “You are adorable, Cassie. Cassie. That’s what we named you by the way.” I smiled at her, laid my head against her chest and when she kissed me on the head I purred even louder. Then I went to sleep.
The next week was kind of fuzzy. I remember the girl coming in two or three times a day to check on me, hug me and make sure I was okay. “You are such a fighter,” she said one day. That’s when she told me that over 50 of my brothers and sisters had died and only four of us had made it out alive.
But now, I had my own super large crate, all the food and water I wanted and someone who loved me and came to check on me every day. How lucky is that!
My crate was on the bottom row in the cattery and I had to stretch my neck to see who came in whenever the door opened. One day, I looked up and saw two people standing with the girl who had named me. “I have someone I’d like you to meet,” she told them. She eased me out of my crate, kissed me on my head and handed me to the woman next to her. I looked into the woman’s beautiful eyes, glanced over at the cute guy with her and I knew I had found my parents!
I need to let them know I’m theirs, I told myself. I did a gator roll in her arms, laid my head against her chest and cranked up my lawn mower purr to full maximum.
The woman looked at the cute guy and said, “She’s picked us, you know.”
“Yup, I figured that out before she ever got into your arms,” he said, scratching my head.
I never went back into my crate because my new mom carried me in her arms while my dad filled out the adoption papers. An hour later I officially had my new parents.
On the way home, I looked over at my dad, who was driving, then up at my mom. I thought back to a year ago and realized how lucky I was. That’s when I made myself a promise that I would never let a day go by without letting them know how much I loved them.
As we pulled into the driveway, dad turned to mom and said, “We already have a Cassie so, what do you think about naming her Samantha? We can call her Sam, for short.”
“I like that,” my mom said.
Dad’s eyes looked into mine. “You okay with that, Samiwich?” My mom chuckled but I was in shock. All I could do was let out a tiny squeak. Oh. My. God! I had my own nickname! Up until the shelter, I didn’t even have a name. Now, I had a name, Samantha. A nickname, Sam. And now, my very own super special nickname, Samiwich! Me! I was Samiwich! The one and only Samiwich!
I meowed at dad, licked my mom’s hand, did another gator roll in her arms and snuggled as close to her as I could get. No matter what was inside the house in front of us, I was home. These were my parents, this was my house and I was in heaven.
As soon as we were inside, mom introduced me to Cassie, a big blond lab and shepherd mix and Yoda, a brown swirled Sokoke cat. Yup, I’d met a Sokoke before, and they were full of themselves. Yoda was no exception and he wanted nothing to do with me. Ha, we’ll see about that!
As I watched them, I realized that Yoda and Cassie were a couple! He was her “Boy Toy”! Yup, she would clean his ears, he would purr and lick her nose then clean her ears.
Wow! How do I deal with this? I’d never met a dog before and had no idea how to make friends with a dog-cat couple.
Every once in a while though, Cassie would get fed up with him, grumble and bark in his ear because he just wouldn’t leave her alone. That was my opening. I’d console each of them separately, always being careful not to favor one over the other.
Sam Note: Cassie was always friendly toward me, but I had to butter up Yoda for 10 years before we finally became friends … sorta.
Well, I’m now almost 14 years old. Time has flown by. I love my family more than anything in the world and right now they need more love than ever before.
You see, in August, Cassie had some kind of a stroke. She collapsed and mom and dad scooped her up and rushed her to the emergency vets. But, she never came home. Well, only her ashes came home, a week later.
Then, in late April, Yoda, who was now over 16 and my bestest friend, kept getting weaker and weaker. Finally, when he couldn’t eat or drink any more, mom and dad had the vet come to the house and put him to sleep. Just as he crossed over the rainbow bridge, I gave him a kiss on the nose and told him that someday I would see him and Cassie in heaven.
Little did I know that day might be closer than I thought. Two days later I was diagnosed with breast cancer.
Three weeks ago, I had a radical mastectomy but I’m getting better every day! Thanks to the love, thousands of hugs and extra special care I get from my mom and dad. Oh, and everyone at the vet’s office too.
You see, no matter what, I will never forget how lucky I am. Nor will I ever stop returning all the love my parents and everyone else gives me. That’s what’s made me who I am. What makes people love me and me love them back. With all my heart.
Authors note: Sam has no idea how unique, and very special, she really is. It’s impossible to describe how much joy she’s brought into our lives and the lives of everyone she does her trademark gator roll in the arms of. She truly is one of a kind!
Is she spoiled? You bet! But so deservingly so; as she tells us daily with her lawn mower purrs. And yes, she’s recovering well.