Author Rights

Written by Ginger McKnight, Esq.

 
When it comes to their creations, writers often resemble candidates for Hoarders, holding onto manuscripts, notes, and random scrap paper scribbles for dear life, unable to let go. 
 
Writers fear what others might steal if they reveal even a tiny portion of what they have labored over and poured their hearts and souls into producing.  Writers become CIA-secretive about their work, avoiding writers’ groups, editors, beta readers and others that could help them improve their works and enhance their ability to become published.  They send sealed drafts to themselves via snail mail.  They assume that everyone is out to get … their ideas.
 
As an author myself, I understand and often resemble this impulse.  As an attorney, however, I have made it my mission to hold my fellow author’s hands and reassure them that all is well.  You have more control, and rights, as authors than you may realize.
 
Your legal “ownership” rights to your work are triggered you when take the ideas from your head and transfer these original works of authorship onto paper (or, more likely, computer file).  This is the essence of “copyright.”  A term authors hear all the time, and value, but often don’t fully understand.
 
What is copyright? 
 
Copyright is a property right.  You own it, like you own the watch on your wrist or the laptop on which you create your masterpieces.  You can use it yourself, sell it, allow someone to borrow it, or pass it down to your heirs.  But unlike physical property, copyright is not a possession you can hold in your hand.  It’s not the physical book your publisher releases to the world after you sign your blockbuster book deal.  It’s not the physical book that readers will purchase in the store, share with their best friends, and leave on their shelves along with the other contents of the homes they pass down to their children.  Copyright is  “intellectual property,” rather than a piece of physical property.
 
Copyright is a bundle of rights.  Copyright gives authors and other artists/creators the sole and exclusive right to do the following things (or give others permission to do the following things) with the works they create:

• Reproduce them
  • eg, print and publish multiple copies of your original manuscript.
• Distribute them
  • eg, sell them yourself or allow a third party, such as your local bookstore or Barnes & Noble, to sell them on your behalf.
• Publicly perform them
• Display the work publicly
• Perform publicly by digital transmission (if a sound recording)
• Create derivative works based on the original work
  • A “derivative work” is a new original work based on the first original work.  For example, each sequel to the original Harry Potter book by J.K. Rowling is a derivative work.  The screenplays and films based on these literary works are also derivative works.  JK Rowling owns the right to create those sequels, screenplays and films by virtue of having written the original.

 
Copyright gives authors control over decisions regarding their work and how it is used, sold, and presented.  Like other items of personal property, you can transfer ownership of your copyright to someone else (must be done in writing), or you can “license” or give others permission to use all or a portion of your copyright rights for a particular period of time, in a particular territory, or for a particular purpose, as you desire.  All exclusive licenses, and any nonexclusive licenses that last for more than a year, are also required to be in writing.
 
How do I get this copyright?
 
As an author, it’s an easy two-step process.  First, you create an “original work of authorship.”  Second, you “fix” that work “into a tangible medium.”  In plain English, this means you take an original expression or creative idea and capture it in some sort of tangible medium:  you write it down on paper, you put paint brush to canvas, you record or write down the song in your head, you click the shutter on a camera and fix the image onto film or digital file, etc. 
 
And that’s it.  You write your novel rather than just thinking about it.  And by virtue of creating it, you, like JK Rowling, gain that magical and potentially lucrative bundle of rights in your work described earlier.
 
At one time, authors and other artists had to engage in more steps to ensure their copyright rights.  Some of the things that authors continue to do, such as mail a sealed copy of their manuscript to themselves, place a © symbol on every page of their work, etc., are not required or necessary for works created on or after March 1, 1989[1].  Though anything an author does, within reason, to demonstrate notice or keep a record of authorship and relevant dates doesn’t hurt.  In fact, placing a © followed by your date of publication or creation and name on your manuscript helps to provide notice to all who dare touch or read it that it belongs to you.
 
Sharing your work and receiving/incorporating feedback from instructors, writing group members, beta readers and editors does not give them ownership rights in your work.  They only obtain rights in your work if you agree to give them rights in writing. 
 
Joint copyrights with a co-author are possible, if multiple authors intend to create a work together.  To avoid complications later, it is best to agree to the terms of your joint ownership in writing, and to register a joint copyright with the U.S. Copyright Office per the process described below. 
 
Don’t I have to file something to get a copyright?
 
You own the copyright in your work whether you file anything with the U.S. Copyright Office or not.  However, if you want to use the courts to enforce your rights in the event anyone tries to steal or infringe upon your rights, you must first “register” your work with the U.S. Copyright Office.  It is a simple, inexpensive process (online registration available), that involves filling out a brief form and paying a nominal fee.  As of this writing, the fee is typically $35 for online filings, though there is a range for different types of works. 
 
Do I have to file something in other countries to protect my work?
 
For the time being, no.  The United States is still party to international treaties that require other countries to respect and uphold the copyright rights you have been granted under U.S. law.
 
It should be noted that U.S. filings and treaties do not 100% guarantee that you will never become a victim of theft or plagiarism.  However, they provide you with rights that you can enforce in courts of law domestically and abroad.
 
If someone hires me to write something, do I own the copyright?
 
It depends.
 
Authors usually own the copyright in whatever they create, just by virtue of creating it.  However, if that work is a “work-made-for-hire,” then a third party owns the work.  A “work-made-for-hire” is (1) a work created for your employer as a part of your regular duties in the course of your employment; or (2) a work that a third party commissions you to write for them as an independent contractor, which arrangement must be agreed in writing, with an express statement that you are creating the work as a “work-made-for-hire” which will be owned by the third party instead of you.  Typical freelance writing work is owned by the author unless the author expressly agrees to a work-for-hire or copyright transfer in writing.
 
Does my copyright last forever?
 
No.  But it lasts long enough to enable you and your heirs to greatly benefit from the fruits of your labors.  Copyright in a work created on or after January 1, 1978 lasts for the author’s lifetime + 70 years.  Works created by corporations, works made for hire, and works created anonymously or under a pseudonym last 95 years from publication or 120 years from creation, whichever is shorter.
 
When your copyright expires, your work, like Shakespeare’s before you, goes into the public domain.
 
Can I copyright my title too?
 
No.  Copyright does not protect names, titles, slogans or short phrases.  It also doesn’t protect ideas, lists of ingredients or contents, or other things that are not full expressions or fixed in tangible media.[2]
 
If you develop a brand name or logo that you use in commerce, this can be protected by trademark.  If you develop a scientific invention or process, this can be protected by patent.  These are very different types of intellectual property than copyright, with different application processes and terms of existence.[3]
 
Anything else?
 
There are instances where others can use works that are protected by copyright without permission, either by contract under the doctrine of “fair use.”  Fair use is an expansive topic, but essentially allows use of limited excerpts from copyright-protected works for purposes of criticism, commentary, news reporting, teaching, scholarship, research and parody.[4]
 
These are the basics to get you started.  For more information, the U.S. Copyright Office provides a wealth of plain-English information on all things copyright on their website at www.copyright.gov. 
 
In the meantime, get to work on your masterpieces.  And don’t fear sharing your work with the rest of us.


[1] For more information regarding older works, and other information regarding copyright, see the U.S. Copyright Office’s Circular on Copyright Basics, https://www.copyright.gov/circs/circ01.pdf.

[2] For more info, see the U.S. Copyright’s Circular on Works Not Protected by Copyright, https://www.copyright.gov/circs/circ33.pdf.

[3] For more info, see the U.S. Patent & Trademark Office, https://www.uspto.gov.

[4] For more information, see https://www.copyright.gov/fair-use/more-info.html

Ginger McKnight-Chavers, Esq. is an Arts Attorney & Author

A native of Dallas, Texas, Ginger McKnight-Chavers is a graduate of Georgetown’s School of Foreign Service and Harvard Law School. She was a Kathryn Gurfein Writing Fellow at Sarah Lawrence College.

Her debut novel, In the Heart of Texas is available at local and online retailers.

McKnight-Chavers currently blogs for The Huffington Post and The TexPatch, and she lives in Westchester County, New York, with her husband, daughter, and an overweight West Highland White Terrier.