Note: This article offers writers some basic tenets of copyright law; it is not intended, nor should it be construed, as legal advice.
Copyright protections were contemplated at the time of the writing of the United States Constitution, with the goal of promoting progress in the arts and science. Article 1, Section 8 of the Constitution calls for “a limited time” for creators to enjoy “the exclusive right to their respective writings and discoveries.”
It’s Section 101 of the U.S. Copyright Act that provides creators such protection. Under this statute, copyrightable protection is afforded to original creative expression in a fixed (meaning the work’s final state) form. Ideas and facts are not protected, but the expression of these ideas and facts is protected. For example, if you write an original work—even if it’s based on ideas and facts already swirling about in the world—and you print it, or even save it to your computer, the work will be considered a copyrighted expression.
Once an original work is fixed, copyright protection arises automatically. In other words, copyrights do not need to be officially recorded or renewed to afford a creator protection. That said, writers may still want to register their copyright with the United States Copyright Office, especially if there is reason to anticipate copyright infringement. Copyright holders cannot file a lawsuit or be eligible for the monetary damages afforded under the statute without registering their copyright. Writers can register their copyright as soon as they finish their book. This can be done for a nominal fee online at copyright.gov/registration.
Once a work is copyrighted (whether officially recorded or not), the creator and/or copyright holder is afforded six basic protections. The right to:
- create derivative works;
- distribute copies or transfer ownership;
- perform the work publicly;
- display the work publicly; and
- perform the work publicly via digital audio transmission.
A copyright infringement would then, for example, be committed if someone tried to turn a copyright holder’s book into a play or movie (a derivative work) without first obtaining explicit permission and, if the copyright holder requests a licensing fee, paying for that permission.
There is now a small-claims court for copyright infringement with damages up to $30,000. This could make bringing a copyright infringement claim more affordable. When infringement is alleged, courts will consider whether the new work is substantially similar to the copyrighted work and whether the alleged copyright violator actually had access to the copyrighted work.
Creators of new works should be mindful not only of protecting their own copyrighted material, but also of respecting and honoring the copyrightable material referenced, or relied upon, in creating their original work. Writers need to get the explicit permission from the copyright holders of creative expressions such as photographs, lyrics, and other written work.
Although there is a “fair use” exception to the use of copyrightable material (covered separately here), aside from getting the explicit permission from a copyright holder, one of the best and easiest ways to avoid copyright infringement is to rely on works already in the public domain, as these works have lost their copyright protections.
A new batch of works comes into the public domain each Jan. 1, which—in addition to being New Year’s Day—is Public Domain Day. A fun website to consult each Jan. 1 is this one, maintained by Duke Law School’s Center for the Study of the Public Domain. When determining whether a specific work is in the public domain, consult this site from Cornell University.
Copyright law is governed by both statutory and case law. If you have specific intellectual property questions with respect to your written work (or the use of the copyrighted work of others), you should consult a lawyer who practices in this area.
About Publish Her
Publish Her is a female-founded publisher dedicated to elevating the words, writing and stories of women. We are passionate about amplifying the voices of women of color, women with disabilities and members of the LGBTQ+ community. We aim to make publishing an attainable, exciting and collaborative process for all. Publish Her specializes in print-on-demand books, workbooks, journals, magazines and more.