Copyright law changed forever when Samuel Clemens, also known as Mark Twain, broke with convention by wearing a white suit to the 1906 Congressional hearings on American copyright law. In Twain’s day, copyright law didn’t protect authors from piracy. However, Twain, sympathetic to the financial needs of his fellow authors and aware of the need to protect his own work, went to bat for authors then and to this day.
Twain and his fellow copyright advocates, William Dean Howells and John Philip Sousa, spoke for all of those trying to institute protections that would safeguard their financial interests. Twain wanted to control the publication of his work, even after his death. Wisely, he also viewed his creative output as a tangible asset for his heirs.
To learn more, read this fascinating article from the New York Times on December 8, 1906. See where the copyright law began. (Be sure to click on the other links in this article. The links contain valuable information you won’t want to miss.)
Twain cared about copyright because he needed to support his family. Writing wasn’t just a hobby or a creative outlet. In his youth he had a day job as a reporter. His magazine editors paid the bills. Later on, however, he switched from journalism to writing novels. Because writing provided his livelihood, Twain needed to protect his intellectual property. Every “purloined” copy of a book reduced his income. Today, pirates steal books and put them online “for free” in exchange for the gullible reader’s email address.
Authors today face an uphill battle to make any money from their books. Most often, we’re spending money, not earning it. That’s especially true for self-published authors. Those who publish on Createspace bear all the upfront costs of cover design and interior layout. After publication, authors face the slow drain from book giveaways and countdown deals. If you are an author you should know that a 2015 survey by the Authors’ Guild found that authors’ incomes fell below the poverty line. Authors have a harder and harder time making a living from their creative work.
But copyright isn’t just about income or lack thereof.
The instant you write your book and begin a blog, you will have to deal with copyright regulations. Like most creative people, I detest legal mumbo jumbo; however, copyright issues stand at the forefront of issues that affect my career. Copyright affected my career when I worked as a journalist. Copyright affects it now. With my books, I must decide which rights to retain and which to sell.
The Copyright Act has been revised numerous times since Twain’s day. Its most recent incarnation occurred in 1976. The 1976 Copyright law stripped states of the right to regulate copyright. Prior to the enactment of this federal law, states had jurisdiction over some aspects of the copyright system.
According to Wikipedia, “With the 1976 Copyright Act, Congress abolished the dual federal-and-state copyright system, replacing it with a single federal copyright system. Federal preemption is codified at 17 U.S.C. § 301(a), which states:
On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright … in works of authorship that … come within the subject matter of copyright … are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.”
Copyright Law Before Digital Media
Let’s think about the date of the copyright law: 1976. That was before the digital revolution. Heck, we barely had Xerox machines back then. When an author published a story in a literary magazine, the magazine “took” first serial rights–for free, of course. After publication, however, all rights reverted to the author. The author could then submit the work to anthologies or republish the story in his or her own story collection.
Soon after the digital revolution began, writers began receiving boilerplate contracts demanding all rights–print, digital, and on and on. At the same time, publishers felt free to put up the author’s old work on their websites, whether the original contract had ceded digital rights or not.
Writers whose work had been appropriated in this way faced an uphill battle. In the 1970s and ’80s, I published a great many articles in Better Homes & Gardens, Old-House Journal, and Journal of Light Construction. I had to dig out the original contracts and read the fine print. In most cases, thanks to contract training I had received from the National Writers Union, magazines agreed to pay me a modest amount for the right to put my article online. It was a hassle to get the extra $50, or whatever pittance they were willing to pay, but I didn’t care. The principle of protecting my work counted for a lot.
Fast forward to today. Copyright law has not caught up to the uses and abuses of creative work. Librarians and Google envision a world where every book is online and everything is free. Writers, artists, musicians, actors, playwrights, and photographers would like to receive a financial return. Otherwise, at some point, it doesn’t make sense to continually impoverish yourself. Making art is great, but artists have to eat.
If your goal is to publish one book, then a minimal knowledge of copyright law will meet your needs. If you’re going to make a career as a writer, it behooves you to learn enough so that you don’t unintentionally box yourself into a publishing corner. Ultimately, you don’t want anyone stealing from you. Nor do you want to steal from them.
The problem is that copyright law is boring…to anyone but a copyright lawyer, probably. In this post I’m just going to cover a few of the more interesting aspects of copyright law that I’ve run across. Perhaps these will intrigue you, and you’ll want to know more.
Arcane Facts About Copyright Law
Can you copyright your photo of Elvis?
Luckily, Elvis is still as alive and living in Las Vegas. You can’t copyright your siting, but you can copyright the photo. Here’s what the Copyright Office says:
How do I protect my sighting of Elvis? Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. File your claim to copyright online by means of the electronic Copyright Office (eCO). Pay the fee online and attach a copy of your photo. For more information on registering a copyright, see SL-35. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph.
Can you use family memorabilia without violating copyright?
If you are digging through a relative’s attic and find a homesteader’s diary or a soldier’s war journal, you might be thinking, “Aha, book material.”
According to the Copyright Office, “You can register copyright in the diary only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author’s heirs or assignees, not of the one who only owns or possesses the physical work itself. See Circular 1, Copyright Basics, section “Who Can Claim Copyright.”
Does registering your book for copyright protect it?
Many folks worry that their work will not be protected unless they register the copyright. That’s not true. Your work is protected the moment it leaves the proverbial pen.
That said, it’s a darned good idea to register your copyright formally. You should do that even before sending it to an agent or uploading it to Smashwords, Amazon, or IngramSpark.
The reason for this is that you must formally register copyright if you are to have a prayer of collecting legal fees. Imagine You vs. Amazon or You vs. Any Publisher. If you sue them and lose, they can go after you for their legal expenses, but if you have registered your work formally and you win, you can collect legal fees from them.
This matter was recently the subject of an article in the Summer 2016 issue of the Authors Guild Bulletin.
“In its second ruling in Kirtsaeng v. John Wiley & Sons, Inc., the Supreme Court clarified its standard for awarding attorneys’ fees in copyright litigation. Holding that judges awarding attorneys’ fees must look to the reasonableness of the losing party’s position, the Court’s decision ensures that copyright holders will not be penalized for bringing reasonable cases they happen to lose.”
If you plan to see your books in other countries, of if you need to protect your work from piracy, you need to read this pdf. There is no such thing as an international copyright. All your protections begin in the United States.
University presses routinely grab rights authors should retain
University presses are flagrant in their attempts to grab all authorial writes, according to this article in on the Authors Guild website. If you are a member, the Authors Guild will review your contract, and if you are a published author and want some of your rights back–let’s say your publisher has gone belly-up or not kept your book in print–the Guild will help you.
“CAUTION: Do not allow the publisher to take your copyright or to publish the copyright notice in any name other than yours. Except in very unusual circumstances, this practice is not standard in the industry and harms your economic interests. No reputable publisher should demand that you allow it to do so.”
Who’s in charge of the Copyright Office?
An anonymous bureaucrat? A committee? With the surge in publishing, who handles all the manuscripts flooding in?
Well, it turns out that it’s a particular person called the Register of Copyrights, and at the moment, that position stands vacant.
The new Director of the Library of Congress, Dr. Carla Hayden, created quite a stir in mid-October by issuing a memo of transfer to Maria Pallante, the Register of the Copyright Office. Pallante is a true expert in copyright law. I knew Maria when she was head of the National Writers Union, and I’m baffled at her dismissal. Pallante had advocated for an update of copyright law. Rather than accept the de facto demotion, she resigned.
At the moment there is no one at the helm of the Copyright Office, and Congressional committees are considering removing the Register from the Library. For more about this issue and why it’s important, go to this article in Billboard.
Even though copyright protections aren’t perfect, you really ought to register your work
It can take 9 to 18 months to register your copyright. If you submit your application and materials online, you will wait 9 months for confirmation. If you’re old school and send paper, then expect confirmation in 18 months. Here’s where to get started. You, not your publisher, should initiate the process.
Legal Advice From A Lawyer
Okay, I’m not an expert on any of this legal stuff, and frankly, I’m always surprised at how much more there is to learn. That said, here’s one more piece of the puzzle.
If you’re blogging to support your effort to find readers for your books, then you need to stay on the right side of the copyright law. You wouldn’t appreciate someone pirating your work and selling it online, would you? Nor do you want to steal anyone else’s.
Recently, ConvertKit, the email service provider I use to handle my newsletter, featured a guest post by Autumn Witt Boyd. She’s the creator of the Legal Road Map™ podcast on iTunes, and she posts weekly live videos on www.facebook.com/autumnwittboyd.
Autumn Witt Boyd makes this point in her post:
One common misconception is that linking back to the source or giving credit protects you or that you can use whatever you want on social media. Not true! You are infringing someone’s copyrights if you use their stuff without permission, even if you link or give credit to them.
If you want to know which five steps you should take to get legit with the law, then by all means, click on the ConvertKit link and pin her roadmap to legality on your corkboard. Then, “just do it.”