Second Article in a Series published in Scribe & Quill
In the first article of this series, we discussed the history of Copyright Law, Works Made For Hire and some existing and continuing gray areas in the Copyright Act. The practical use of Copyright Law is in knowing how to make the most of available protections. Since SCRIBE & QUILL's readership consists mostly of writers, we'll focus on that application of the Law.
There is some protection available (provided you are the sole creator of a work, and are not governed by any contract which would negate your claim to it) simply by creating a written work, in a recorded format.
You are familiar with articles, like the ones you read here in S&Q, where the "©" symbol, and a year, follow the byline. (See above, by my name.)
When you see the "©" symbol, you have no way of knowing (without considerable effort and expense) whether I just stuck it on there, or if I have registered the work with the Copyright Office.
Formal registration, which includes depositing a copy of the work, attesting to the authenticity of it's authorship, publishing details, and dates (along with a pre-determined fee) elevates the level of protection to one of unquestionable ownership. This allows for full prosecution of any infringement of the law.
| UNREGISTERED | REGISTERED |
|---|---|
| The onus is on the writer to prove they authored the work. | Provides indisputable proof of authorship. |
| A "slightly altered" version of one's work is difficult to question, in an effort to prove either plagiarism or violation of Fair Use*.*see below, What Is Fair Use? | An infringement suit made before or within 5 years of publication automatically establishes prima facie evidence in Court, as per the registered facts and copyright |
| Can pursue in the Courts, with proof of authorship, but cannot recover legal fees in that pursuit | Registration within 3 months after publication and prior to any infringement suit provides entitlement to punitive damages levied against any publisher of the work, the "author", legal fees, "loss of income" (statutory judgements), to the genuine author, and attorney fees. |
| No protection against illegal import. | Registration also protects the work from import of infringing copies through U.S. Customs |
Many people think if they:
they have proof of authorship and ownership. Not one of these efforts constitutes legal proof.
To understand Fair Use , you must first grasp the true meaning of Copyright itself.
Consider this:
You write an article. You then seek the protection afforded by the Copyright Act.
Essentially you seek to protect the creative expression that extends to your tangible work.
It follows that Copyright infringement would constitute someone copying or reproducing your creative expression without your knowledge or permission. But does this extend to someone writing an article based upon your IDEAS? What about taking those facts as you stated, and expounding upon them? Or, using your identical facts, to arrive at a different or similar conclusion? In the broadest view of Copyright Law, ideas and facts are not eligible for protection by the law.
Let's simplify this. If you wrote on a page, "The Sky Is Blue", and signed your name as the author, and added the "©" to it, the copyright symbol would be of no value.
Because I can also write, "The Sky Is Blue", and since it is a simple fact, neither of us have expressed an intellectual concept. However, if you were to write, "The sky is blue above me as I lay upon a soft bed of green grass", that would constitute a concept eligible for protection. As would my writing, "The sky is blue right now, but as dusk approaches it will change with the purples and pinks from the glow of the setting sun."
Therefore, that which is eligible for protection under Copyright Law is defined as:
the individual's unique interpretation, and the combination of words that add thought to fact that transform words to a 'work' and are therefore subject to protection.
Now that we have established what Copyright (for the Writer) is really protecting, we can answer the Fair Use question. The right of the owner of a copyrighted work extends to that owner's control in allowing, or denying, others the ability to reproduce their work.
The concept of Fair Use, while not an original part of Copyright Law, has, of necessity, been added to it. (section 107, Copyright Act)
For example: A newspaper columnist quotes some portion of a new novel in a review of it. If, in the quoting of the book, the columnist revealed the plot twist(s), and/or "whodunnit", that would be a loss of income for the author. Why? Who wants to buy a book they already know the ending to?
There are four factors that are considered in the determination of Fair Use.
You will find links for this purpose at the conclusion of this article.
Just because YOU feel it is "ok" does NOT protect you now, or in the future, from legal action in this area. Objections and legal actions have been raised or pursued in what many would consider to be innocuous and innocent use. Your best option is to obtain a signed release from the author, and, in any interview in which you seek to quote the subject.
It is generally acceptable to use a portion of a work in a critique, for a teaching or research purpose, or for a news report. But mistakes do happen. A quote is inaccurate. Too large a portion of a work is reproduced.
If the author's unique phraseology or interpretation of a fact is the actual information being reproduced, it can be deemed unauthorized, and is subject to a legal nightmare.
Even teachers can run the risk of legal prosecution. Many incorrectly believe that an entire book may be reproduced if it is only for their students to study. (For the record, this is 100% WRONG!)
So, you still want to know how to get your work protected? Of course! It's EASY!
| TYPE OF WORK | Non-dramatic Literary Work:Published or Unpublished book, manuscript, textual work, with or without Illustration | Dramatic Work, Published or Unpublished |
|---|---|---|
| DEFINED AS: | Fiction, Non-fiction, Poetry, Contribution To A Collective Work, Directories, Catalogs, Dissertations, Theses, Reports, Speeches, Bound or Looseleaf Volumes, Pamphlets, Brochures, Single Page with Text | Choreography, Pantomimes, Plays, Treatments, Scripts prepared for Cinema, Radio, TV, with or without Music, Dramatic Works for Plays, TV, Radio, Film, Video or Phonographic. Are intended to be performed, and include spoken text, plot & directions for action. |
| FORM NAME | TX GR/CP | PA GR/CP |
| FEE | $30.00 | $30.00 |
| WHAT TO DEPOSIT (copy # & type) | If published, one complete copy. If published by January 1, 1978, two complete copies, best edition. If published before January 1, 1978, two complete copies, as first published. If published outside of the U.S., one 1 complete copy, as at first publication. If a collaboration, published after January 1,1978, one complete copy. | If unpublished, one copy. If published, two complete copies from Best Edition. If a Script: provide manuscript or PR copy. |
There are no specific requirement regarding print, binding format, or paper size if the work is unpublished. The Copyright Office prefers works in ink, typed, photocopied, or legibly handwritten, and that work is formatted to facilitate handling and long term storage- (i.e.) stapled, bound, or clipped.
Send all specific requirements in one package, to:
Library of Congress,
Copyright Office,
Register of Copyrights
101 Independence Ave. S.W.
Washington, D.C. 20559-6000
Expedited registration is considered, at the discretion of the Registrar. The application and request for Expedited service must include the details to support the reason for the request, in the form of a signed statement, providing details to support the reason for the request.
Acceptable reasons for expedited registration include:
A SIGNED STATEMENT, stating that the details of the request are correct to the best of the requestor's knowledge.
Mail EXPEDITED Requests to:
Special Handling
Copyright Receiving & Processing
P.O. Box 71380
Washington, D.C. 20024-1380
NOTE: The material in a Script is copyrighted ONLY for that one script. It does NOT apply to future scripts, or a series, and MUST be the literary or dramatic expression of the author's idea: NOT just an idea.
Copyright registration is in effect when the Copyright office receives the complete package, with all required elements in an acceptable format. Processing time varies due to upwards of 500,000 applications sent in annually. If the package is missing anything, or is incorrect, the Copyright office will contact the sender. If you choose to have a record of the receipt of your package, send it Registered or Certified Mail. If all is in order, you will receive a Certificate of Copyright within four to five months after sending.
There are special filing procedures for this action. Obtain forms and read carefully. Different Copyright terms exist for unidentified authors' works than identified.
The term for Unidentified Authors' Works is 95 years from publication, or 120 years from the creation date, whichever expires first.
An Identified Authors' Work has a term of the author's life, plus 70 years.
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