Ask the Lit Chick: Copyright Law


Q: I just finished the manuscript of my book and one of the members of my writers group advised I copyright it before I send it out to agents. She said I can mail a copy of it to myself to copyright it. Is this sound advice? Thank you. -- Concerned about Copyright

TLC: Thank you for the opportunity to address such an expansive and complex topic. Let’s start with the basics:

Intellectual Property Clause: Article I, Section 8, Clause 8 of the U.S. Constitution empowers the United States Congress To promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writing and Discoveries.

This constitutional clause is the foundation of copyright (and patent) law. From the perspective of the U.S. Congress, copyright law exists to give the government the authority and responsibility to encourage the creative process.

Often from the artist’s perspective the issue of copyright is about being certain that all the hard work is valued and that the worth established during the publication process is attributed to the writer.

Submitting to contests, pitching at conferences or querying agents is a thrilling way to introduce new work and meet the challenges of pursuing publication. It is a joyful adventure on the road to literary success, but occasionally a fear creeps onto the path to stardom.

Putting our work “out there” can be difficult, not only because we share a deep and intricate part of ourselves -- our imagination and the expression of that inner world -- but also because we fear that our work -- the story and our toiling to bring it to life -- can be violated. We fear that our ideas may be stolen.

David Rein, attorney at Bruce Campbell Law Firm, LLC, board member at Kansas City Volunteer Lawyers and Accountants for the Arts (KCVLAA) and copyright expert helps us gain a deeper understanding of the protections provided by copyright law and, subsequently, of the reasons it is important to register our material with the Library of Congress.

Two things must be understood up front. One, ideas are not protected under copyright law; only the material expression of those ideas can be protected. Two, a copyright exists automatically upon creation of that material.

It goes back to that Intellectual Property Clause and its spirit and purpose, which is two-fold. David Rein says, “We want artists to create things. It’s okay for artists to actually make money, to have a livelihood. That whole notion is protected by the constitution.

“At the same time we’re not giving monopoly on ideas. What would we be able to create? You’re going to have to prove that one idea is different from everybody else’s. It’s a completely different idea that no one has ever thought of before. That would stymie the creative process. It’s the expression of the ideas -- that’s the genius.”

protecting the creative process itself. That is why ideas cannot be protected. It would injure the ability for people to interpret the world, their thoughts and their experiences and fashion those interpretations into works of art.

Therefore, a copyright exists when work is created that shows some breadth of originality and is fixed in some medium. It is your expression of the world as you know it and that expression belongs to you.

Developing the “writer’s voice” helps not only institute a recognizable style that loyal readers can rely on, but that voice helps in such legal matters as copyright infringement disputes. Did so-and-so really write this or is this clearly a rip of a Stephen King?

What registration does is gives the artist a leg to stand on in the event of a copyright dispute. First, registration increases the chances that an attorney would take the case, because attorney fees are included in the suit when the work is registered.

There are other benefits of registration, including statutory damages and the ability to get the attention of anyone who reproduces your work without permission (the registration also helps those seeking to reproduce your work with permission find you as well). With a copyright registration the attempts to correct the infringement would be taken more seriously because there would be more at stake.

The key to these disputes rests in a number of legal tests. How do I know I’m being ripped off? When we put our ideas out there in forums that are public, like pitch fests or even contests where we have no idea who is seeing our material, there can be that tiny voice of insecurity that just doesn’t quite know, that just doesn’t fully trust.

Rein admits, “That’s a tough one. The phrase that we use in copyright law is substantial similarity. What are some of those things? We are going to look at dialogue. We are going to want some other similar words too. If you take the heart and soul of the work, that is going to be an important distinction.”

Without registration, the tests don’t change. What changes, according to Rein, is “if we win, what are we going to get?”

As far as the layman’s or “poor man’s copyright,” we’ve already determined that registration does not establish copyright, but protects the copyright established upon creation of the work. The usefulness of mailing a copy of your manuscript is very slim. It may help confirm that you are the writer of the work in question and that you created it as early as the date of the post stamp.

In the end, our work is like our home. We own it. We love it. To take from our home without permission is a violation and a crime. We have the choice of how to protect it. We can leave the door unlocked and standing wide open or we can close it and perhaps get a nice fuzzy, but vicious guard dog.

The same is true of our writing. Rein says it best: “The finest protection is to come up with a creative way to express that idea that hasn’t been done before [a way] that is so compelling and so you that it becomes you. There is a personal voice that we all have.

“Ultimately, from a legal perspective, I tell you to register. If you think it’s good enough that you put so much heart and sweat and excitement and passion into writing this and if you feel that it’s something the world should see and should pay you for, then protect it.”

To learn more about copyright law and how to register your work, join The Writers Place and KCVLAA on Thursday, March 12 for Copyright Issues for Writers

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